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have already been submitted to Parliament, as far as you have seen them, tend to prevent the recurrence of the evils which are now complained of ?None whatever.

passed in 13 Edward I., gave the creditor the right to proceed against the land of the debtor, and the judges held that that meant the land which he had at the time of the judgment, or at any time after. That was not productive of much mischief, because At this moment that we are inquiring is the evil the executions originally were only taken out within going on and accumulating throughout Ireland ?Afterwards the statute of scire facias It is going on, but not accumulating, for there is a enabled parties, by means of the writ called scire double process; at one end selling estates to pay facias, to take out execution at any period; and it encumbrances, and at the other end putting new was held that that incidentally gave the creditor encumbrances upon estates by other people; you the right, by the doctrine of relation, to take execu-may for some years have one process going on a tion against any land which was in the possession little more rapidly than another, but it will come to of the debtor at any time after the judgment was its average again. had against him.

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you any suggestion to make as to changes in the law, by which the evils arising from the facility of encumbering land in Ireland should be remedied?—I should reduce every mode of encumbering land to one mode of charging it, and I would not permit more than one charge to be on the same denomination of land, and I would not permit any trusts of that charge to affect the owner of the land. Let the trusts of the charge be a matter between the trustees and the cestuique trust, precisely like what happens with regard to the funds now, where the Bank takes no notice of trusts, but will do with the funds whatever the trustees desire. Then, in point of fact, you would assimilate in that particular real property to the custom now observed with regard to personal and funded property?—Yes; to the law as regards funded property; it is not mere custom, but it is the law.

Have you any other observation to make with regard to the working of this measure? (Encumbered Estates Bill).-No. I think the measure will work very well, but it will be of very little use to Ireland unless accompanied with measures to prevent the making of encumbrances that is now going on. There are some estates freed from encumbrances by sales under the Court of Chancery; but on the other hand, there is a constant system of putting on fresh encumbrances, and unless you check the latter process, you will have Ireland in the same state as before.

Can you suggest any remedy for the present uncertainty of title in Ireland ?—I do not think there is any considerable uncertainty of title in Ireland; I think a purchaser in Ireland can be as certain of his title as a purchaser can be in England; there is an expense in making out a title, owing to the number of encumbrances, but there is no uncertainty of title.

Mr. Bright.] Do you know whether that is the opinion of English conveyancers with regard to Irish titles?—I do not; but I am sure that the English conveyancers do not understand the matter; they do not know the law in Ireland, and I do not think they are competent to give an opinion upon the point; I never knew a title in Ireland shaken in the slightest degree, except where there was gross neglect on the part of the purchaser, and where proper searches would have shown that the person was not buying the property of the proper person.

You spoke just now of what was necessary to event the accumulation of those difficulties in ture: do you conceive that any measures which

As the process is going on at both ends, can you see a prospect of the country being restored from the condition in which it is now placed by those evils ?-No, no prospect whatever, except that arising from a hope and wish that the country may amend.

Will you give the Committee your opinion as to what is necessary to be done to check the growth of those evils?-To alter the law, so that a man who wants money beyond what his income will yield him may find it cheaper to sell a portion of his estate than to encumber it; he will be pulled up much sooner when he sees the estate going from him than when he merely signs a few extra deeds, of which perhaps he does not understand the full effect. Then I would have each encumbrance expressed in a particular form, specifying the land on which it is placed, like passing personal property; and I would permit an encumbrance to be only upon one denomination of land. My idea, then, is this, that a man who wanted money would mortgage, or rather charge, (because I would put an end to mortgage)-would charge the Blackacre with it, and let the rest of his property remain untouched; and if afterwards he wanted more money he would charge another portion with that, or he would increase the charge upon the first property, still having only one charge upon it; if he wanted to sell any portion of his property he might sell that portion, because there would be only one charge upon it, and he would not be obliged to discharge all the encumbrances by which he was affected.

When you speak of increasing the charge, do you mean that you would not allow a man, having borrowed a thousand pounds from A on a certain property, to borrow another thousand pounds from B on the same property?—I would not allow it; let him go to A and increase his charge upon that property, or go and charge some other portion of his property to B, or sell another portion of land.

I collected from you that you traced the evils of Ireland, not exclusively to registration, but to registration combined with the law of judgment creditors? The law relating to judgment creditors I think also a bad one, and that it contributes to increase the encumbrances.

Your great principle, as I collect it, is that the owner of a real estate should exercise the largest possible power over it while he lives and enjoys it? Yes.

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Is not this jealousy of yours with respect to charging inconsistent with the exercise of the largest power, during life, by the owner?—I do not think it is, for it relates merely to his power as be

tween two innocent parties, as between a purchaser and the encumbrancer. I would let him charge it as against himself, but I would not let him charge it as against a purchaser from himself.

Why are you jealous of his exercising a minor power, namely, of charging within the full extent of the value? Because I see the evils to which the exercise of that power leads, and because I see that it is a power which is naturally liable to abuse. You have admitted that it is a restraint upon the right of property during the life of the owner, which restraint you think must be imposed for the public good? It may be called a restraint during the life of the owner, but I do not think it is; it is merely limiting or pointing out the manner in which he can raise money on his property; he ceases to be the owner when he encumbers it. I merely say that he shall sell it instead of giving the party a charge on it. As I understand you, you would have no portion of his land, whether it be a field or a township, subjected to more than one charge?—Yes, subject only to one charge.

I collect that whatever may be done with regard to arrears of poor-rate, whatever may be done with respect to marriage settlements, or even with respect to primogeniture, still you think the danger of accumulating incumbrances in Ireland would be left untouched, while assignable judgments with registration continues?-I think so.

What would be the effect of placing the law of debtor and creditor in Ireland, quoad judgments, exactly on the same footing as that upon which it stands in England? The law in England respecting judgments has been altered within the last few years; and I do not think that you have had yet full experience of the mischief of the alteration.

Has there been an alteration of the law of England assimilating the law, quoad judgments, to the law as it exists in Ireland?—Yes; a judgment in England is now a much more formidable lien on land than it was formerly.

Does it act to the full extent to which you have gone in Ireland?—It has gone to the full extent, except being assignable; it is not assignable in England. Is that an important difference?—Yes; because it makes a judgment a more convenient security, and therefore tends to produce the habit of accepting a judgment as a security.

And being assignable it supersedes the necessity of holding the deeds?—Yes.

In England no security is considered first-rate without the possession of the deeds? That was the case; but I think it possible that a contrary habit will grow in England if the law is left unaltered.

There have been two great alterations in the law in Ireland with respect to judgments, have there not? Yes.

When did they take place?-Those two alterations, to which reference was made yesterday, are hardly to be called alterations at all; they were in the time of George the Third.

Nothing since then?-Nothing since then; they were alterations ralating to scire facias.

There has been no alteration in the operation of the law, particularly in Ireland with respect to judgments? There is the one law, making them assignable.

What is the date of that?-I think ninth Geo. II.

Are you able, as a matter of legal history, to state that that alteration has been found in date simulta neous with the increase of encumbrances in Ireland -No; I am not able to state that as a matter of history.

Has the net of encumbrances been more widely spread, and more difficult of extrication within the last generation in Ireland ?-Within the last two generations; I think so. I have seen many old conveyances, and old searches for title, and certainly they were not attended with the same difficulties that more modern ones have been.

With regard to the operations of judgment, has not the mischief of judgments been very much in creased by what is called the Sheriff's or Receiver's Act of 1835?-Very much; and still further increased by what is called Pigot's Act.

Do you think that the difference between the operation of the laws in Scotland and in Ireland might be explainable in this way, that the one rather encouraged the frailties of the people, and that in the other case those frailties did not exist ?—I think that that accounts for a great deal of the difference.

Was not the extensive use of judgments in Ireland caused by the inability of the Roman Catholics to grant and receive mortgages?—It has been sometimes attributed to that cause.

Do you attribute it to that cause?-I do partly. Therefore the confusion in our titles has been caused in fact by penal laws?—It has been increased by penal laws.

Isaac Butt, Q.C., March 22, 1849.

Will you state your opinion upon the effect of judgments upon landed property?—I have a very strong opinion that one of the greatest mischiefs to landed property in Ireland, and which is in a great degree the cause of its present embar rassed state, is, that judgments are common assurances in Ireland. The law in England and in Ireland with regard to judgments is exactly the same, with one exception, which may perhaps have caused the difference that exists between the two countries; and that is, that in Ireland the judgment is assignable by law, in England it is not assignable at law. By an Irish statute passed in the reign of Queen Anne, a judgment was made assignable at law; that is, if a party has a judg ment against another, by an entry on the records of the court he can assign that judgment to any person. By this entry the assignee becomes the legal owner, and there is no other party upon the records of the court acknowledged as the owner.

And his interest may be sold?—Yes; I am disposed to think that that statute was passed in consequence of what are called the Popery laws-the penal laws against Roman Catholics holding mortgages. It had become the object both of the Protestant landed proprietors, and of Roman Catholics who had money, to get a security upon land that would be in the nature of a mortgage, and evade the law; and very probably the same circumstances have led to this, that now a judgment is a very common way of borrowing money in Ireland by a landed proprietor instead of mortgaging.

Does it not appear a very natural and proper thing that judgments should be as assignable as any other kind of property?—It does; but I think

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that anything is impolitic that gives a landed proprietor facilities for encumbering his estate; and I think the use which has been made of judgments in that way, has led very much to the encumbering of land. There is this difference between judgments and mortgages which must not be forgotten; a judgment is a charge upon all the lands that a man has, and not only upon all the lands that he has, but upon all the lands that he may hereafter acquire; so that if a man has estates in every county in Ireland in small lots, the judgment is a charge upon them; if he sells one of those estates he must sell it subject to the judgment; and if he purchases another estate in another county, that other estate is also subject to the judgment. There is, I can conceive, nothing more mischievous, and more calculated to embarrass property than the system of judgments in Ireland.

Sir J. Pakington.] Is not the unavoidable effect to charge a judgment upon any species of property that a man has?-There is no provision of the law which enables you to do that.

Mr. Bright.] Is it not usual in mortgages in England for parties to insert a variety of property, far more than is necessary for the real security of the mortgagee, for the purpose of making the security still more secure? Does not the lender very frequently wish to include all the property of the party to whom the money is lent?—I should think not all; in practice it is not so; but very often where mortgage and judgment are collateral, as they generally are in Ireland, you find the judgment affecting a number of estates that are not included in that mortgage.

Has it not the effect of encumbering estates unnecessarily, if adequate security can be given to the mortgagee by encumbering only a portion of the estate, instead of encumbering the whole of the estate?—Yes; and a judgment affects not only the estate which a man may have now, but any estate which he may at any period of his life hereafter acquire.

Sir L. O'Brien.] What would you say if it were limited to the estates a man had at the time of obtaining judgment?—I think that would be an improvement; but having thought a good deal upon that subject, I would be strongly of opinion that the best thing that could be done would be to abolish the law altogether, making judgments a charge upon landed property.

Sir J. Pakington.] From what cause has arisen that practice of granting judgments conjointly with mortgages in Ireland, which is so different from the system of raising money upon landed security in England? It is a very singular thing, that with the law the same in the two countries, with the exception of the judgment being assignable in Ireland, but not in England, this material difference has arisen; and I trace it to the circumstance of udgments being assignable in Ireland. The pracoriginated, I think, in the penal laws.

tice

But

you

Would abolish the system of judgment?

299

in execution, or take his land in execution; but I would not allow a judgment to subsist as an indefinite charge upon his land.

such an extent that an Irish proprietor would find Sir J. Pakington.] Is that system carried to a difficulty in raising money without a conjoint judgment ?-I do not think money would be lent him without a conjoint judgment. If I myself were advising a lender, the common practice of the country being that the lender should take the security of a judgment, I should advise him to require that security to be given to him.

under the Pigot and O'Loghlen Acts?—Yes. Colonel Dunne.] The receivers are appointed

your evidence correctly, when I suppose that the Sir J. Graham.] Do I understand the effect of encumbrance of the judgment or judgments is as it so that however small the sum for which a judgment were concentrated in the present owner of the land, may run against him, he cannot part with any portion of his estate without clearing off that judgment debt? It is so.

are increased by the recent Acts of O'Loghlen and Colonel Dunne.] The evil effects of that system Pigot?-The act introduced by Sir M. O'Loghlen enables a judgment creditor to obtain a receiver on petition over the lands of his debtor; it did not enable him to sell his estate. could not then sell the estate of his debtor during his life. After the death of the debtor he had the A judgment creditor power that any creditor, whether by judgment or otherwise, had of filing a bill to administer the assets of his debtor, and if his personal property were be sold. insufficient to pay his debts the land he left would

Chief Baron placed judgments on a totally different But an act introduced by the present footing. It made them actual charges upon the land, equal in operation to a specific charge created by deed. By the operation of that act a judgment creditor can file a bill for the sale of his debtor's estate in right of the charge it gives him upon his to the embarrassments of the landed interest; it has land. I think the effect of this act has been to add multiplied suits and receivers; and I think that these suits, which may be called profligate suits, that is, suits instituted for the sake of the costs, have been in most instances instituted by the operation of this act. Small judgments have been purchased up for the purpose of instituting a suit. Before the act institute such a suit. a judgment did not entitle the party owning it to

law of Ireland with respect to judgments ?—I have
Sir J. Graham.] You would revise the whole
formed a very strong opinion, and I think upon
very good grounds, and with sufficient experience
to enable me to form a judgment; I would not
make a judgment a charge upon land.

ing receivers under judgments would fall with it?—
And consequently the whole process of appoint-
Yes. And in causes I think the courts in Ireland
ought not to be appointed in cases in which the
grant receivers with too much facility. Receivers

-Iould bolish the law of making judgment a termination ought to be a speedy sale; and I think

Upon

charge landed under his

Jand,

as it now is; I would allow a

if some change were made in the Court of Chancery,

proprietor to borrow money on judgment the effect of which would be to bring causes to a
penalty, if he did not repay it, of having | speedy termination, receivers in causes would die

the

ditor

take him in execution, or take his goods away of themselves.

Then you would abolish judgments?—I would; that is, I would not let them be a charge upon land. Mr. P. Scrope.] Would you allow two mortgages to extend over the same property, or would you prevent that? That would be exceedingly difficult to do by a legislative enactment. I consider there is a great objection to a legislative enactment inter fering with a man's disposition of his property; but I would not give him any facility for encumbering his property; the present Registry Acts do give him a facility. But I am afraid it is so interwoven with the country that it is almost impossible to get

rid of it.

Sir J. Graham.] Does your observation apply to any change of the law with respect to judgments?-No.

It is not so interwoven with the country?—No; if the present system were changed, you could not say to a man who now has a judgment, "We will alter your security." But there is not the least difficulty in saying that the judgments hereafter entered up shall not be a charge upon any lands, or that any lands which a man may subsequently acquire shall not be charged by any judgment now entered up.

Therefore you see no difficulty in prospectively cutting off that mode of charge ?—No. And immediately ?-Immediately. The Pigot act did what I conceive to be extremely mischievous in relation to judgments; it made them, for the first time, charges upon leasehold interests; there was a large portion of properties held for long leases that were, before that act, free; that act made judgments charges upon all that interest. The question has never come to a judicial decision; but I entertain the opinion that by the recent act of Sir Edward Sugden, the provision of that act has been repealed to this extent, that judgments do not now affect the purchaser of a chattel leasehold, who has not notice of them. But I am afraid that in practice this will be unavailing, and that to guard himself against any risk from the possibility of notice, the purchaser of such an interest will still search for judgments. If he does, of course he has notice of all that appear on the search.

If it has not been repealed, does the Pigot act render property held under long leases liable to be managed by receivers, which it was not liable to before?-The repeal of which I speak, only relates to the case of a purchaser. The judgment has in any case its full force against the property in the hands of the debtor; but Pigot's act very much embarrasses the sale of such property; and I have personally seen the inconvenience of it. Houses in towns are very often held for a long term of years; if you buy a house in Dublin, you have to search for judgments against the person holding the leasehold estate, exactly as you would do if you bought a freehold estate.

Till the Pigot act, leases under colleges and under episcopal bodies could not, in the case of a judgment, render the property liable to have a receiver appointed over it?-No; and it affects the sale of those properties which are liable to be sold in execution by the sheriff. Formerly a leasehold interest could be sold exactly in the same way as the furniture of a house; but now, in conse

quence of the judgments becoming a charge upon it, this is impeded.

It had the further effect of making it liable to be managed by a receiver, which it was not liable to before ?-By a receiver on a judgment; there was another effect of Pigot's act; formerly judgments did not bind the equitable estate; if for instance a landed proprietor had an estate that was let for 99 years, and he sold that estate, a judgment against the landed proprietor could not bind that term; if the purchaser got an assignment of that term with out notice of the judgment against the proprietor, he got the estate free from the judgment, because the judgment did not bind the equitable estate unless the purchaser had notice of it. The law has been changed in that respect. In practice, how. ever, I believe the protection of an outstanding term was not relied on in Ireland, owing to the Registry Act.

Seeing the extension which, under various acts of Parliament has taken place of the principle of judgments, with all those evils that you attach to it, you would recommend a prospective and immediate reversal of that state of the law?-I would. I do not think it can be done too soon.

IN CHANCERY, IRELAND.

Robert Edward Gibbings,

Plaintiff. The Right Honorable Henry John Reuben, Earl of Portarlington, and others, Defendants.

WHEREAS it has been re

presented to me, that several

of the Creditors on the Estates of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named,

pur

have neglected or omitted to come in and file charges on foot of their respective demands and incumbrances, pursuant to the decree of the 9th day of February, 1847, and that the time limited by and for the said pose has expired, and that it is expedient to extend said period: Now 1 require all Creditors and Legatees of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named, and also all persons having Charges or Incumbrances affecting the real and free. hold Estates of the said late Earl of Portarlington, to come in before me at my Chambers on the Inns Quay, in the city of Dublin, on or before Tuesday, the 20th day of November next, and proceed to prove and claim the same, otherwise they will be precluded the benefit of said Decree.

Dated this 30th day of June, 1849, John Warnock, Plaintiff's Solicitor,

30, North Great George's Street, Dublin.

JUST PUBLISHED,

E. LITTON.

ADDISON ON THE LAW OF CONTRACTS. TREATISE on the Law of CONTRACTS, and Rights and Liabilities ex Contractor. By C. G. ADDISON, Esq. of the Inner Temple, Barrister.at-Law. Second Edition, 2 vols. 8vo. price £1 166 RUSSELL ON ARBITRATION.

TREATISE on the Power and Duty of an ARBI TRATOR, and the Law of Submissions and Awards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., M.A., Barrister-at-Law. I vol. 8vo, b £1 68.

BAYLEY ON BILLS OF EXCHANGE.

SUMMARY of the Law of Bills of Exchange, Cash Bills,

and Promissory Notes. By SIR JOHN BAYLEY, Knt. Sixth Edition, by G. W. DOWDESWELL, Barrister-at-Law. 1 vol. 8vo. £1 2s.

BURGE ON THE LAW OF SURETYSHIP.

COMMENTARIES on the Law of SURETYSHIP, and the Rights and Obligations of the parties thereto. By WILLIAM BURGE, Esq. Q.C. M. A. &c. I vol, 8vo. 18s.

STANFIELD'S PRECEDENTS IN CONVEYANCING. COLLECTION of Copyhold PRECEDENTS IN CONVEYANCING, arranged for general and ordinary use, to gether with Introductory Treatises upon the various transactions and occurrences incident to Estates of customary tenure, &c. By JOHN F. STANFIELD, Esq. 1 vol. 8vo. 12s,

EDWARD J. MILLIKEN, Law Bookseller and Publisher, 15, College Green, Dublin,

TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s.

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Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, FLEET.STREET, in the Parish of St. Andrew, and published at 15, COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin. Saturday, July 28, 1849,

Erish Jurist

No. 40.-VOL. 1.

AUGUST 4, 1849.

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The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows :——

Court of Chancery, including Bankruptcy Appeals.....

Rolls Court......

Equity Exchequer...........

Bankrupt Court.......{

ROBERT LONG, Esq.,

and

JOHN PITT KENNEDY, Esq., Bar-
risters-at-Law.

WILLIAM BURKE, ESQ., and
WILLIAM JOHN DUNDAS, Esq.,

Barristers-at-Law.

CHARLES HARE HEMPHILL, Esq.
and

WILLIAM HICKSON, Esq., Bar-
risters-at Law.

ROBERT GRIFFIN, Esq. and W.G.
CHAMNEY, Esq. Barristers-at-law.

DUBLIN, AUGUST 4, 1849.

THE differences of opinion which exist between the Master of the Rolls and the Masters in Chancery as to the eligibility or non-eligibility of attorneys to be receivers cannot but tend to accelerate a change in the whole present system of the management of

estates under our courts of Equity. "A house di

vided against itself cannot stand." That change we have long advocated as important, has now become inevitable.

The Master of the Rolls has enunciated the principle that an attorney is not eligible for the office of receiver, and that "on the plainest grounds of public policy." His Honor's observations, or rather his deliberate judgment in Molony v. Nugent, lead to the conclusion that, in own court, he is prepared to act universally on this principle; and, in the case before him, he enforced the rule with a retrospective operation.

On the other hand, Master Litton, in a carefully prepared judgment, has expressed his dissent from the principle, and stated his own deliberate conviction, that attorneys, when resident, are the best receivers. The decision of his Honor has been reversed, and the Chancellor has decided that there is no rule of court, or of law, to prevent the appoint

mient.

The evidence of Sir Edward Sugden before the Receiver Committee was relied on as implying that the rule of law was against the appointment; and be certainly does state that the practice of the court was against it, and, therefore, that the General Order was only directed against attorney's clerks and apprentices; but his unpremeditated answer, after a retirement of three years, may have resulted from mistake or a lapse of memory. The practice of appointing independent solicitors to be receivers siways prevailed; that of appointing a partner of

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JOHN BLACKHAM, Esq., and
A. HICKEY, Esq., Barristers-at-
Law.

Queen's Bench, includ- ( FLORENCE M'CARTHY, Esq., and
ing Civil Bill and Re- SAMUEL V. PEET, Esq.,
gistry Appeals.

Exchequer of Pleas, in-
cluding Manor Court
and Registry Appeals.

Common Pleas .........

Admiralty Court......

on 66

Barristers-at-Law.

CHAS. H. HEMPHILL, Esq., and
WILLIAM HICKSON, Esq., Bar-

risters-at-Law.

ROBERT GRIFFIN, Esq. and W. G. CHAMNEY, Esq. Barristers-at-law. S ROBERT GRIFFIN, Esq. and W.G. CHAMNEY, Esq. Barristers-at-law.

the solicitor for the plaintiff, or some nominee of his
a proper understanding," at one time also ex-
tensively prevailed, and led, we do believe, to the
foulest abuses and grossest system of plunder and
jobbing.

have alluded, and this he and every other judge has
It was to this practice Sir Edward Sugden must
discouraged, but we fear not yet entirely annihilated.
But there has never been a positive rule of court or
of law disqualifying attorneys, disconnected with the
cause or matter, from being receivers. Speaking
generally, we concur in the view of his Honor that
practising attorneys and barristers are not fit men
to be receivers; those of both classes who have much
practice are very unlikely to accept the appointment,
but we think it unwise to lay down an unchange-
able rule; but, in truth, having regard to the only
duty of the office-to receive-it matters little un-
of the individual who fills it.
der the present system what may be the profession
Under existing cir-

cumstances an inflexible rule it certainly ought not to
be; and, for various reasons, a discretionary power

should be vested in the Master.

It is impossible for the great majority of men who are really competent to fill the office;-from their education as land agents--to obtain securities to that amount and number which would give them an aggregate rental, upon the percentage allowed for the collection of which, they could live independently, and devote themselves entirely to the management of estates under their controul.

Mr. M'Cay's very valuable evidence before the Receiver Committee has shown that the vast bulk of properties under our Courts of Equity are small: they are also scattered; or in cases in which they are adjacent, so circumstanced, that the former agent or nominee of the plaintiff, frequently must obtain the Receivership. It is, as a general rule, impossible to combine a sufficient

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