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of the Creditors on the Estates


Then you would abolish judgments ?-I would; quence of the judgments becoming a charge upon that is, I would not let them be a charge upon land. it, this is impeded.

Mr. P. Scrope.] Would you allow two mort It had the further effect of making it liable to be gages to extend over the same property, or would you managed by a receiver, which it was not liable to prevent that ?— That would be exceedingly difficult before ?-By a receiver on a judgment; there was to do by a legislative enactment. I consider there another effect of Pigot's act ; formerly judgments is a great objection to a legislative enactment inter. did not bind the equitable estate; if for instance a fering with a man's disposition of his property; but landed proprietor had an estate that was let for 99 I would not give him any facility for encumbering years,

and he sold that estate, a judginent against his property; the present Registry Acts do give the landed proprietor could not bind that term; if him a facility. But I am afraid it is so interwoven the purchaser got an assignment of that term with with the country that it is almost impossible to get out notice of the judgment against the proprietor

, rid of it.

he got the estate free from the judgment

, because Sir J. Graham.] Does your observation apply the judgment did not bind the equitable estate un to any change of the law with respect to judg- less the purchaser had notice of it. The law has ments ?-No.

been changed in that respect. In practice, how. It is not so interwoven with the country ?-No ;' ever, I believe the protection of an outstanding if the present system were changed, you could not term was not relied on in Ireland, owing to the say to a man who now has a judgment, “ We will Registry Act. alter your security." But there is not the least Seeing the extension which, under various acts difficulty in saying that the judgments hereafter of Parliament has taken place of the principle of entered up shall not be a charge upon any lands, judgments, with all those evils that you attach to it or that any lands which a man may subsequently you would recommend a prospective and immediate acquire shall not be charged by any judgment now reversal of that state of the law?-I would. I do entered up

not think it can be done too soon. Therefore you see no difficulty in prospectively

IN CHANCERY, IRELAND. cutting off that mode of charge ?-No.

Robert Edward Gibbings,
And immediately ?-Immediately. The Pigot

: WHEREAS it has beenza

presented to me, that serend act did what I conceive to be extreinely mischiev- The Right Honorable Henry John

Reuben, Earl of Portarlington, the late Right Honorable dan, ous in relation to judgments; it made them, for the and others,

Earl of Portarlington, deceased, the

Testator in the pleadiugs named, first time, charges upon leasehold interests ; there

bave neglected or omitted to come in and file charges on foot of their was a large portion of properties held for long respective demands and incumbrances, pursuant to the decree of the Ath leases that were, before that act, free; that act pose has expired, and that it is expedient to extend said period made judgments charges upon all that interest. require al creditors and Legatees of the late Right Honorable sobin, The question has never come to a judicial decision; Alsoal persons having charges or Incumbrances affecting the real and freed but I entertain the opinion that by the recent act at my Chambers on the Inns Quay, in the city of Dublin, on or before of Sir Edward Sugden, the provision of that act claim the same, otherwise they will be precluded the benekt of all has been repealed to this extent, that judgments do

Dated this 30th day of June, 1849. not now affect the purchaser of a chattel leasehold,

John Warnock, Plaintiff's Solicitor, who has not notice of them. But I am afraid that 30, North Great George's Street, Dublin. in practice this will be unavailing, and that to

JUST PUBLISHED, guard himself against any risk from the possibility ADDISON ON THE LAW OF CONTRACTS. of notice, the purchaser of such an interest will still

TREATISE on the Law of CONTRACTS, and Rights search for judgments. If he does, of course he has and Liabilities ex Contractor, By C. G. ADDISON, F.q. of the

Inner Temple, Barrister-at-Law. Second Edition, 2 vols, 8vo. price £1 166 notice of all that appear on the search.

RUSSELL ON ARBITRATION. If it has not been repealed, does the Pigot act TREATISE on the Power and Duty of an ARBI. render property held under long leases liable to be TRATOR, and the Law of Submissions and Awards; with an managed by receivers, which it was not liable to FRANCIS RUSSELL, Esq., M.A., Barrister-at. Lin. 1 val. Svo, bai before?-The repeal of which I speak, only relates

BAYLEY ON BILLS OF EXCHANGE. to the case of a purchaser. The judgment has in SUMMARY Of the Law of Bills of Exchange, Cash Bills any case its full force against the property in the hands of the debtor ; but Pigots act very much edition, by G, W.'DOWDESWELL, Barrister-at-Law. I vol. bra embarrasses the sale of such property; and I have

BURGE ON THE LAW OF SURETYSHIP. personally seen the inconvenience of it. Houses COMMENTARIES on the Law of SURETYSHIP

, and

the Rights and Obligations of the parties thereto. By WILLIAM in towns are very often held for a long term of BURGE, Esq. Q.C. M.A.&c. I vol. 8vo. 18. years ; if you buy a house in Dublin, you have to STANFIELD'S PRECEDENTS IN CONVEYANCING.

COLLECTION of Copyhold PRECEDENTS IN search for judgments against the person holding the

CONVEYANCING, arranged for general and ordinary use, ta. leasehold estate, exactly as you would do if you gether with Introductory Treatises upon the various transactions and

c. By JOHN F. bought a freehold estate.

STANFIELD, Esq. Till the Pigot act, leases under colleges and EDWARD J. MILLIKEN, Law Bookseller and Publisher, 13, College

Green, Dublin, under episcopal bodies could not, in the case of a judginent, render the property liable to have a TERMS OF SUBSCRIPTION-(payable in advance): receiver appointed over it ?-No; and it affects Yearly, 30s. Half-yearly, 178. Quarterly, 9s. the sale of those properties which are liable to be

Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 4, sold in execution by the sheriff. Formerly a lease- FLEET STREET, in the Parish of St. Andrew, and published at hold interest could be sold exactly in the same way MILLIKEN, residing at the same place, all being in the County of the as the furniture of a house ; but now, in conse

City of Dublin. Saturday, July 28, 1849.



I vol. 8vo. 12s,

Irish Jurist

No. 40.- VOL. 1.

AUGUST 4, 1849.

PRICE {Single Number, yd.

Per Annum, £1'10x, The Names of the Gentlemen who favour Tae IRISH JURIST with Reports in the several Courts of

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the solicitor for the plaintiff, or some nominee of his

on " a proper understanding,” at one time also exThe differences of opinion which exist between tensively prevailed, and led, we do believe, to the the Master of the Rolls and the Masters

in Chancery foulest abuses and grossest system of plunder and as to the eligibility or non-eligibility of attorneys to

jobbing be receivers cannot bút tend to accelerate a change

It was to this practice Sir Edward Sugden must in the whole present system of the management of discouraged, but we fear not yet entirely annihilated.

, vided against itself cannot stand.” That change we But there has never been a positive rule of court or have long advocated as important, has now become of law disqualifying attorneys, disconnected with the inevitable.

cause or matter, from being receivers. Speaking The Master of the Rolls has enunciated the prin- generally, we concur in the view of his Honor that ciple that an attorney is not eligible for the office of practising attorneys and barristers are not fit men receiver, and that “on the plainest grounds of public to be receivers; those of both classes who have much policy." His Honor's observations, or rather his practice are very unlikely to accept the appointinent, deliberate judgment in Molonyv. Nugent, lead to the but we think it uuwise to lay down an unchangeconclusion that, in own court, he is prepared able rule; but, in truth, having regard to the only to act universally on this principle; and, in the case duty of the office-to receive-it matters little unbefore him, he enforced the rule with a retrospec- 1 of the individual who fills it. Under existing cir

der the present system what may be the profession tive operation.

On the other hand, Master Litton, in a carefully cumstances an inflexible rule it certainly ought not to prepared judgment, has expressed his dissent from be; and, for various reasons, a discretionary power the principle, and stated his own deliberate convic- should be vested in the Master. tion, that attorneys, when resident, are the best re.

It is impossible for the great majority of men who ceivers. The decision of his Honor has been re- are really competent to fill the office;—from their versed, and the Chancellor has decided that there education as land agents--to obtain securities to that is no rule of court, or of law, to prevent the appoint- amount and number which would give them an ag

gregate rental, upon the percentage allowed for the The evidence of Sir Edward Sugden before the collection of which, they could live independently, Receiver Committee was relied on as implying that and devote themselves entirely to the management the rule of law was against the appointment; and of estates under their controul. be certainly does state that the practice of the court

Mr. M‘Cay's very valuable evidence before the was against it, and, therefore, that the General Or- Receiver Committee has shown that the vast bulk der was only directed against attorney's clerks and of properties under our Courts of Equity are apprentices; but his unpremeditated "answer, after small: they are also scattered ; or in cases in a retirement of three years, may have resulted which they are adjacent, so circumstanced, that from mistake or a lapse of memory. The practice the former agent or nominee of the plaintiff

, freof appointing independent solicitors to he receivers quently must obtain the Receivership. It is, as siways prevailed; that of appointing # partner of a general rule, impossible to combine a sufficient


namber of Receiverships in one locality, to secure Delinquencies and delinquents should be punished a resident agent who will attend to no other in proper cases, in every case where the office of duties ; and even if that number conld be found, receiver of receiver's solicitor is procured corruptly, it would be impracticable for one individual to whether it be by attorney, private gentlemen, grocer, obtain the number of distinct securities that are land agent, or farmer; no class is immaculate. "Een required by the rules of court. The multiplication virtue's self will sometimes bear away her outward of recognizances would, in most cases, be found an robes, soiled in the wrestle with iniquity." But an insuperable bar.

entire body is not to be punished because it possesses The best class of Receivers are men educated for unworthy members. The opinion of Master Heun

, the purpose, but that class cannot be had in most which, founded on his long practice, is deserving of cases, so long as the practice of the court remains attention, is, that attorneys are the least expensive unaltered.

receivers, as they cannot charge for attendances, or If then, in cases of small properties, the court for advice given by themselves to themselves. We cannot procure the undivided services of a well agree that there are certain items they cannot qualified Receiver, and if the Receiver, in order to charge for; but there are law proceedings which support himself, must unite other business with an attorney receiver will be more apt than a laya that of his office, the objection to a solicitor is no man to deem necessary, and which a Master will greater on that ground than would apply to any be sure to sanction. individual who would take the appointment in con The Master of the Rolls has appealed to public nection with his other avocations.

opinion; a discriminating public opinion, we think, Other reasons may be suggested why the rule will pronounce against the exclusive rule. should not be inflexible. Suppose the property to It is one thing to be convinced that abuses do exist be house property in a town: where is the -and public opinion will unhesitatingly coincide superiority of an agricultural over a legal receiver? in that; but the reflecting public will differ as to Suppose again that the family solicitor had been the mode of administering correctives for those the family land agent for the last twenty years, and abuses. The Chancellor bas pointed out the mix the property were placed under the court for the take into which his Honor-actuated, we have no discharge of a judgment debt which would be paid doubt, by the sincerest desire for the public goodby the perception of two years rent ; in such a case, has fallen, that he has considered the question more would it be just or advisable to remove the former in the character of the legislator than that of the agent, with his pre-existing knowledge of the judge. estate and the tenantry, and substitute a farmer, The Master of the Rolls cannot entertain grocer, or absentee land agent in his stead? stronger opinion than we do of the necessity for a

In discussing the capabilities of the different thorough reform of the administration of estates classes for office, the important testimony of Master under our courts of Equity. We want a concen Henn and Master Litton cannot be discarded, and trated governing body, acting with educated and their reasoning is almost conclusive in favour of trained officers on a uniform system. solicitors, but only so long as a system continues to But we must distinguish the evils of a system exist, which is so cambrous and complicated that from the shackled agents who have to carry it out ; no uninitiated country gentleman can understand it. we should not visit on the latter those offences

The grounds of public policy which his Honour which are chargeable upon the former. adverted to, but did not state, must in some degree We have felt the question to be of such general rest on the fitness or unfitness of a person immersed importance, that we have opened our columns to in other pursuits engaging in one, which requires an the letter of our correspondent P. It was a ques attention he cannot bestow, and a knowledge he tion on which we knew that we could not be silent ; does not possess. This applies very generally, and and we cannot close this article without expressing we concede at once that town solicitors and barris- our deep regret at the mode in which the Master of ters in practice are unfit to be receivers, and unques. the Rolls has expressed his opinion, towards a brotionably none of that class should ever be appointed, ther judge, who never said an ungracious thing; or seek the appointment; but there may and do exist whose courtesy, whilst it never interfered with the members of both professions whose early habits and firm and conscientious discharge of his duties, bas pursuits, whose tastes and connection with the estate endeared him to every professional man who has may eminently qualify them for the office, and we had the privilege of practising before him. should pause before we laid down an inflexible rule We can conceive no deeper wound capable of of exclusion.

being inflicted on the administration of justice in this Another ground of public policy-stated to be country, than that by which members of the same sufficient to disqualify attorneys is the tendency court are shewn to be at variance, one speaking disthat legal men have to create costs, to "give more respectfully of the opinion of the other, and the other law and less money," to look at everything through replying in language of strong retort. Men in high a legal medium, and if they cannot make costs them- official legal position should be guarded in their use selves to create a job for a brother. It is idle to of language ; an expression by them of approval or say that too much of this system has not been adopt- of dislike to an individual, may make or mar bis ed, and it is notorious that numbers of estates are fortune. When one judge differs from another, if thrown into the Court of Chancery to create costs, he wish to preserve the respect of the publie for the but it is rather the office of solicitor for the receiver judicial office, he will treat the opinion of the judge ceiver than that of receiver-solicitor that, in this from whom he differs, with courtesy and respect. view, is the really desirable appointment.

There never was a better aphorism for judges that

that which tells them “ to express their own opini- careful not to encroach on the duties of the higher ons with moderation, and to treat those of others powers. with deference."

If, however, a principle be in itself correct, much allowance should be made for the person, who, in

attempting to carry it out, should even exceed the To the Editor of the Irish Jurist.

limits of his jurisdiction; but there seems grave

doubt as to the expediency of the proposed rule, Sir,

We may assume that the organization of a staff of In your last number you promised to recur to professional agents—men whose lives should be dethe important question of the propriety of appoint- voted to the management of property, is for the preing solicitors as receivers under the courts. Hav. sent hopeless. It would be difficult to find the ma. ing spent soine thought on this subject, I take the terials from which to form such a staff, and the opia liberty of addressing you thereupon. The whole nions of many authorities of the greatest weight are question of receiverships under the Courts of Chan-opposed on principle to its creation. For some time cery and Exchequer has been lately brought much longer it is certain that estates under the courts must before the public; but the attention of the profes- be managed by persons not possessing any special sion has been particularly turned to this peculiar professional qualifications. "Is it, under those cir branch of it, by a series of judgments, in which the cumstances wise, that barristers, physicians, traders practice of nominating as receivers, solicitors, or and solicitors should be absolutely disqualified from persons in any way in their confidence, has been becoming receivers? Such is the question. most energetically denounced. It is true that bar.

Almost all those best acquainted with the man, risters, physicians, and traders were also stigmatised agement of property in Ireland dwell much on as improper persons to undertake the office; thus the necessity of the agent residing upon or near including almost all the classes amongst which we the property under his care. Amongst those who can find men trained to habits of thought, of method, bave expressed this opinion most strongly may be or of accuracy ; but it is quite plain that the ju- mentioned the Master of the Rolls* and Master dicial mind was more appalled by the enormity of Brooke; † the report of the Select Committee also permitting one solicitor to be appointed, than it presses on this point, while the evidence taken would have been by the distribution of all the re- by the Land Tenure Commission contains many ceiverships of both courts amongst the other dis- complaints of the non-residence of agents. With qualified classes. Sir Edward Sugden in his ex- out this principle all hope of improvement seems amination before the Select Coinmittee of the vain, aud its operation will certainly exclude any Commons on Receiverships, ** stated that by the man, law or lay, who does not reside for the greater practice of the court a solicitor could not be a re- part of the year on or near the estate, if any one ceiver. Had not the assertion been made by so

can be found who does. If the estate be one very eminent a judge, it would have seemed impos- where the fees afford a sufficient remuneration for sible to suggest that solicitors were hitherto dis- the whole time of men of character and intelliqualified; and the only probable mode of account. gence it seems but common honesty and common ing for the opinion is, that Sir Edward Sugden

sense that the whole time of the receivers should be meant to confine it to solicitors in the cause. The devoted to it, and the court may well, in such cases, Master of the Rolls, however, stated to the Com- insist on his relinquishing all pursuits which may in mitteef that Sir Edward Sugden was under a mis any way distract him from his duties.

But it apapprehension on the point, and the doctrine of the pears from the evidence of Mr. M-Cays that scarcely text books, the reasoning of Master Litton in 12 per cent. of the estates under the courts amount Molony v. Nugent, (1 1. J. 322), the constant prac- to £1000 a-year, the receivers fees on the remain. tice of both courts, and the Lord Chancellor's 88 per cent, are consequently below £50 per cision in Gealev. Nugent, leave no doubt that no in

Who will give up all other employment flexible rule exists which binds the Masters to reject for such a salary? Is it likely to be a man of a solicitor in exercising their discretion as to the independent character and personal influence ?" fittest person to be appointed receiver. It does,

When the estates under the courts are concen. however , seem very doubtful

, whether any single trated it may be possible for one person to under. judge has it in his power now to lay down any such take the management of several; but they are frerule, with no higher authority in its favour than the quently much scattered, and the choice must then recommendation of a select committee of the Com. be made between a man whose active labour is worth mons, which can hardly be considered as effecting but £50 per annum, who cannot procure any higher a change in the law; still less ought any one to remuneration, and one, a portion of whose more be punished by the infliction of costs for having valuable time is already occupied. Can there be a acted upon the law as heretofore understood. Many doubt which to choose? Surely where the receiv of the members of the Select Committee seemed ership is so small that its fees cannot purchase the impressed with the idea that much might be ac

whole attention of a competent person, the best poscomplished by the exertions of individuals; but in sible arrangement is to employ a portion of the time acting on the great maxim - Aide toi et le ciel of one who has already some other occupation, it t'aidera," the self-dependent reformer should be will be conceded then that the receiver may have

* Ev. Sel. Com. p. 98, qu. 1116; p. 103,' qu. 1165: Examination of Select Committee, p. 47. ques 518. † Ex. Sel. Com. p. 13, qu. 148 to 151; p. 16, qu. 192, 193. + Examination Select Committee, p. 93, ques. 1098. # Ev. Sel. Com. p. 139, qu. 1.364, 1365,


some other employment. We have seen that he must was convicted of such a fraud would very probably live on or near the estate; the most suitable resident be struck off the roll, and that any attorney per. in the neighbourhood must, therefore, be appointed. mitting his name to be so used, violated a solenin Now, what are the component parts of rural society? oath, we must believe that if such cases do occur, which of its members are best qualified? Clergy, they are very exceptional, while the appointment men are excluded by statute; traders, physicians and of farmer receivers does not prevent at least a solicitors by the proposed rule; there remain land equal suspicion of similar fraud. Master Litton, proprietors and farmers

. But what proportion of in his very able judgment in Molony v. Nugent, the land proprietors would accept receiverships ? ÇI Ir. Jur. 322.) shows how much the legal know. What proportion of those who would accept them ledge and business habits of a solicitor receiver are capable of fulfilling the duty? Do they in ge- may often save and benefit the estate, and without neral manage their own estates so well as to make going quite so far as to say that they should be prethem models for imitation ? If not, why do we ex- ferred, there certainly does not seem any sufficient pect more favourable results where there are less reason for their exclusion. powerful motives for exertion? It is to be feared The report of the Select Committee recommende that too many of our country gentlemen are sadly that the receiver should be resident on or near deficient in those habits of business and accuracy by the property, acquainted with agriculture, of indewhich alone property can be satisfactorily adminis- pendant character and personal influence." How tered. As a normal school for proprietors the arrange is such a man most readily to be procured? By ment might be valuable, but it would hardly be just narrowing or by extending the qualification ? There to complete their education at the cost of encum- are not so many such men in every district in lre. bered estates. Farmers, when men of intelligence land, that it is expedient to reduce the number and education, frequently make excellent receivers; from whom to select. Let the office be made les but, unfortunately, the number of farmers who pos- hazardous, let the difficulty of arranging security sess those qualifications is very limited. In many be diminished, let the Master have more opportu parts of the country there are few, if any, above the nity of testing the fitness of the candidates, and we rank of manual labourers; and even the agricultural may hope for at least some such appointments. knowledge of too many of those who consider them. The report of the Committee of the Law Society selves of a higher grade is limited to the alternation gives some most valuable suggestions for the im. of exhausting white crops with scanty pasture. Al provement of the practice in appointing receiver most all who live in the country have, at least, such going pretty deeply into the details requisite to a knowledge of farming; but those whose chief pro carry out the principle of careful selection advised fession is not agricultural, have, in general, the addi- by the Master of the Rolls and the Select Committional merit of not being wedded to old and erro- tee; and by the working of some such principle neous systems.

may we hope to see a better class of receivers

, It does indeed seem difficult to say why the which is not likely to be produced by any rules of classes mentioned in Reynolds v. Reynolds [cited in exclusion-of all systems, that must opposed to the Geale v. Nugent, (1 Ir. Jur. 321)] were singled out. feelings, the tastes, and the tendencies of this

age. If inconsistent occupation be an objection, (and we

P. have shewn that it cannot be considered a disqualification), it applies as much to those who were admitted to be qualified. The business of a large Report of the Committee of the Society of the Attor farmer must demand at least as much of his time neys and Solicitors of Ireland, on the subject of as that of a trader in a small town, a country doc

managing Estates by Receivers under the Court tor, or a local attorney. That seems to be the of Chancery in Ireland, with the suggestions of only objection pressed against two of the classes ; the Committee for the improvement of the present but with regard to solicitors as receivers, a further system. prejudice seems to exist, apparently founded partly We have considered the subject of the management on a species of legal fiction, that they are always in of estates by Receivers under the Court of Chanthe superior courts attending to their clients' inter- cery in Ireland, and beg to state that we conceive ests, and a complete ignorance of the existence of such the change of property likely to take place in combeings as country attorneys; but chiefly upon the idea sequence of the measures now before Parliament

, that they are in some way or other interested in in the probable decrease in the number of orders for creasing the law costs of the estate. The simple Receivers, which will be consequent on the bill to answer to this is, that they are not, and can not be amend the law concerning judgments, should it be so interested, for the practice of the court will not passed and the capability which exists of improving permit them to act in their own behalf. It is some the present system, render it exceedingly unadvisa. times hinted, that in order to evade this rule, they, ble, that any new tribunal, or new machinery for while actually doing the business, and receiving the the management of estates in the hands of the Court profits, use the name of other solicitors. It might of Chancery should be established ; any measure of be a sufficient answer to say, that even the Select the kind must entail serious expense, on owners of Committee, though not a little actuated by some- estates, and the suitors of the Court, and it must thing of the prejudice against lawyers which dis- be difficult, if not impracticable, to foresee to what tinguished the Lack Learning Parliament, could extent officers and assistants would be required by procure no evidence of any such case; but when we recollect tbat the court exercises a most summary

* Ev. Sel. Com. p. 15, qu. 182. jurisdiction over its officers, that any solicitor who

† Infra Ed.

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