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RECEIVER COMMITTEE.

Sir Edward B. Sugden, June 21, 1849. 416. During the time that you were Lord Chancellor of Ireland, was your attention much directed to the management of estates under the Court of Chancery? My attention was very much directed to the operation of judgments, and also to the operation of receivers under judgments, and generally to the management of estates under the Court of Chan

cery.

417. You introduced a good many important changes in the proceedings of the Court?-Yes, I did. The second time, when I went to Ireland, I found judgments very much increasing in number, and of course that had been occasioned by the Sheriffs' Act; and the question arose, which it was necessary to decide, whether it was necessary to make every judgment creditor a party to a suit in relation to the sale of the estate. As that was a question of very great importance to Ireland, I begged to have the assistance of the then Lord Chief Justice, and the then Master of the Rolls; and the question was fully argued, and they delivered their opinion in open Court, in which I concurred with them, that every judgment creditor was a necessary party to such a suit. The consequence of that was truly alarming, and therefore I immediately, with the concurrence of the Master of the Rolls, introduced a new rule, which very much lessened the evil, by rendering it not necessary, except under peculiar circumstances, to make all the judgment creditors parties to such a suit.

418. You are aware of the Act of Parliament which we call the O'Loghlen Act, which gave the power to the Court, on the application of a judgment creditor, to appoint a receiver over a property?

-Yes.

419. Do you consider that, under the true construction of that Act, it was imperative upon the Court, on the application of a judgment creditor, to grant a receiver?-Certainly; the Lord Chancellor makes conditional orders for receivers; he has no power except ministerial, and every morning, when I was Lord Chancellor, I signed conditional orders for receivers upon statements properly verified by affidavits; the Chancellor has no power whatever to withhold the receiver; it goes as of

course.

420. It was in the nature, in fact, of a statutory execution? Undoubtedly; it was in lieu of the old remedy, very much enlarged, and I was going to say, very unwisely accelerated.

421. Do you conceive that the operation of that Act in compelling the Court to grant receivers in cases of judgments was injurious to the public interests?—I never had the least doubt of it, and I did all I could to correct the evil arising out of the multiplicity of judgments; for example, when in this country I was instrumental to the passing of the Act of Parliament which brought together for the first time into one office, the Queen's Bench Office, all judgments of every sort, crown debts, lis pendens and other things; instead of having to search in a number of different offices, I brought all the judgments, &c., into one office, and a small fee was paid; that is in full operation now. And with reference to England, where judgments are not as

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in Ireland, considered the common assurance of the country, and where receivers cannot be obtained upon judgments as they can be in Ireland, upon petition, I introduced a clause, which was passed, that every judgment in England, and every Crown bond also, should be registered every five years if it was intended to operate against purchasers and mortgagees or creditors. That lessened the evil in this country very much; instead of having to go back for many years, and having to search in a dozen different courts, you go into one court and pay half-a-crown for searching one book which contains all the registers. When I returned to Ireland my desire was to assimilate the law in Ire land to the law in England, and believing this law to be even more necessary in Ireland than it was in England, I prepared a bill of the same nature as the bill which had been passed with reference to England, applying it to Ireland, and introducing the same clause requiring re-registration every five years. There was a convulsion almost in the country; the solicitors in a body resisted the sure, and prevailed upon their clients to believe that it was a great infringement upon their rights, and would be the destruction of securities in Ire land; the bill came as far as the House of Com mons, and then I was under the necessity of giving it up. I subsequently got a similar bill passed without that clause, but with a mitigated clause that parties should register every 20 years; so that in Ireland, where the evil is far greater, forty-fold probably greater than it is in England, parties may keep their judgments alive, without taking any step to indicate their intention to enforce them against purchasers and mortgagees or creditors, for 20 years. In England nobody objected to being put under re-registration every five years. Where a party has been paid off, or his claim has been satisfied, and he does not desire a lien against the estate, he does not re-register; but if the party wishes to bind a purchaser, he ought to show, by re-regis tering his judgment, that he wishes to keep it alive as a lien still existing; and in England, as I have already mentioned, the parties re-register every five years.

422. Sir J. Graham.] Sir Michael O'Loghlen's Act, with regard to judgments in Ireland, is not the only legislative enactment which has recently passed upon the subject; we have heard of Mr. Pigot's act; did not that act extend the operation of the law of judgments in Ireland ?That act was, in point of fact, nearly a copy of the English act of the 1st & 2nd. of the Queen, which had extended very largely the operation of judgments; their operation was extended from the moiety of the estate to the entirety of the estate, and their binding power was also extended to many descriptions of property which never before that act could have been reached by a judgment; but so far as the Legislature gave additional privileges to the judg ment creditor, the wording of the act made it necessary to go into equity to give it effect in many cases. But the act very unwisely, I think, declared that every judgment creditor should be considered to have a charge precisely the same as if the per son against whom the judgment was recovered had executed an actual agreement to charge his land

with the amount of the judgment, and that was ex-general operation in Ireland than they are at present tended so as to operate on a general power. But in England?-From an early period judgments in the legislature provided that so far as that additional Ireland have been considered as a common assusecurity was given, the creditor should not be at rance, and a great misfortune it has been to the liberty to resort to a court of equity to give force country; it was a very common thing, before the to it till the expiration of a year. So that they Sheriffs' act, and before Mr. Pigot's act, for an old did not allow a judgment creditor, the moment he judgment-60 or 70 years old to be settled by got his judgment, to go at once under this new the person entitled to it upon his wife and children power, and seize all the property. Mr. Pigot's as a permanent security, with which he was peract, the 3d & 4th of the Queen in Ireland, was, in fectly satisfied; the family could ultimately hardly point of fact, all but a copy of the English act, but escape being involved in an equity suit. with this important addition: it not only referred to the power in the Sheriff's act to appoint receivers on behalf of judgment creditors, but it extended that power to all the additional properties which had been included in the English act, and in like manner in this Irish act; and rather inconsistently I must say, the framers introduced the clause postponing the right for a year, which is in the English act. Now under the English act, where a judgment creditor could not obtain a receiver by petition and where this new power could not be exercised except after a year, it was evidently intended to give the landowner a little time to look round him, and to prevent butchers and bakers from snatching a judgment and fixing it upon the estate; but in Ireland it would scarcely have any operation, because the Sheriffs' act had already given the power over the whole property. It was before liable, and a judgment creditor could, notwithstanding the late act, obtain a receiver in a very short time. It was, therefore, of very little importance in Ireland, though of very great importance in the English

427. Have you ever considered the question whether the penal laws as existing in Ireland, with respect to real property, and the restricted rights of real property as originally enjoyed by members of the Roman Catholic religion, accelerated the action of judgments and that particular mode of obtaining security ?—I do not apprehend they did, but I do not mean to speak with any confidence upon that point.

act.

423. Leasehold property, which is very extensive in Ireland, especially collegiate and chapter property, until the passing of Mr. Pigot's act, did not fall under the operation of the law of judgment creditors?—Yes, all leasehold estates were bound by judgments before Mr. Pigot's act; a fieri facias would issue against them on judgments.

428. Whatever may have been the cause, the fact still remains, that practically judgments have been used from early times much more extensively in Ireland than in England ?—Yes, so as to be considered in their own expression, a common assurance of the country.

429. Are judgments assignable in England as they are in Ireland ?-Certainly not; they are assignable undoubtedly, but the assignment has not a legal operation. In Ireland judgments were made assignable as early as the act of the 9th of George the 2d. One object evidently of that act was to secure purchasers, for the act recites that it was common to assign judgments upon purchases. If you bought an estate, you would take an assignment of the judgment against that estate in order to secure you, and you would have the legal interest by such an assignment; the assignee under that act and the later act of the 25th of the same King, is placed in the same situation exactly as the conusee of the judgment.

424. You have stated that you do not think the 431. Is that distinction with respect to the pubprovisions of Sir Michael O'Loghlen's act judicious.lic good in your opinion in favour of the law in Do you entertain the same opinion conjointly with that act of the provisions of Mr. Pigot's act?-I think that taking that law as it now stands in Ireland, it is mischievous to everybody. It leads to the rapid accumulation of judgments on estates, which are created as permanent debts, and for which receivers may be obtained at once; and these charges prevent the owner from selling his estate to advantage, and constantly occasions litigation,ject; and therefore as an abstract question, I should with heavy costs.

Ireland as it stands, or in favour of the law of England with respect to judgments?—If I were to answer that as an abstract question, I should say that the rule in Ireland is the right one under which you may legally dispose of your whole beneficial interest in the property; it is only by a strictness of the old law that you are prevented from exercising the usual rights of property over that sub

say that the law of Ireland is a reasonable one, and 425. You mentioned a considerable extension of that the law of England requires a remedy. But if the effect given to judgments in the law of England, I were to be asked whether it is a desirable law for by the alteration which took place in the 1st & 2d Ireland, I should say that it has increased the misof the Queen. Can you point out to the Commit- chief considerably as regards judgments which ought, tee the difference now existing in the law of Eng-in my opinion to be discouraged, but which are used land, with respect to judgments so extended, as almost like common bills of exchange, and that has contrasted with the law of Ireland under Sir Michael led to a great many of the difficulties of the landed O'Loghlen's and Mr. Pigot's acts conjointly?—I do interest in Ireland. not apprehend that there is any difference as to the property which they bind; the question is not to the extent of the right to bind any species of property, but the difficulty arises from different remedies being given in the two cases.

426. Practically, judgments are in much more

432. We have been told, that for small debts due to tradesmen, it is a growing practice in Ireland to give judgments?-Not only at this time, but when I was in Ireland, it gave me pain to discover that practice. I had every day to make a good many orders in chamber; I believe I may

safely say that I had hardly ever occasion to sign petitions which did not include petitions for receivers upon judgments, and for the smallest sums.

433. Though the law of England, as extended, is very similar to the law of Ireland, the practice under it has not arisen to the extent, or anything like the extent, that prevails in Ireland?-Certainly not. I am not aware of there being any evil arising out the law in England. Perhaps I may be allowed to observe that the truth is, some of the landed proprietors in Ireland require a little protection, they are so careless about their property and their money. Before I left Ireland one or two instances struck me very much. Under the tithe commutation act the court appoints a receiver (if the occupier is not liable to the payment), if the tithe rentcharge is 31 days in arrear. I have, as Chancellor, signed orders for receivers under that act, in one case for £4, and in another case for £5 only; it is a sort of insanity on the part of the owner; for the moment that order is signed it entails an expense of £30 or £40 for putting a receiver upon the property for a debt of £5.

435. On the whole, do you approve of that principle, that the judgment shall not attach to any particular portion of the property, but that it shall over-ride the whole, however small the amount of the judgment may be?-I think it is too late to alter the law of England as to judgmen's, where it has been carried so far. I think as the law stood before the 1st and 2nd of the Queen, the law of England intended to affect only a portion of the property, for it gave execution only against the moiety; and the legislature have gone on extending it not wisely, I think; but still you cannot now alter the law of England as regards the general operation; the 2nd of the Queen requiring a registration in the first instance, and a registration every five years, reduces to nothing the danger to purchasers, mortgagees and creditors, which is one great point to look to.

436. It has been represented to the committee that the operation of the registration of judgments is this: that it gives facilities to owners of real property in borrowing, and makes judgments a valid security almost up to the full amount of the property; while it is a great impediment to the sale of the property; is that your view of the operation of the registration ?You are asking me a question of great extent. Many people think, and I myself have thought, that as far as regarded judgments and Crown debts, and lis pendens, that it is necessary to have a register to secure purchasers. I am responsible for that Act; but I have always opposed a general register, for very different reasons; I think it would be a great expense imposed upon the country. If country gentlemen would estimate what it would cost for a year, I think they would find that it is an immense burden imposed upon the public for which there is no corresponding benefit. I hear it said, "Go and register in full." That is not the evil, there has never been any want of knowledge of the contents where there is a register. The Registration Act goes upon a very different principle; that is, not to disclose more than is necessary, and not to tell to the whole world all my concerns, because I have

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executed a deed of a peculiar nature; for you can never keep people out of the Register Office. It used to be said that people would not go there; Do they, it was asked, go as to wills? We find that they do go as to wills; one reads every week in the newspapers the gifts by will of men of whom you have heard, and of whom you have not heard, if they happened to have any property. And that would be the case with deeds, if you gave them in full to the registry: their contents would be fur. nished ready for every body's breakfast table in the morning. The Registration Act has not the op eration which people think it has; the Registra tion Act never comes into operation till there is conflict between bonâ fide parties, of whom the one must suffer. It has not the merit, except indirectly, of saving any body; but if a man has notice of a registered deed he is bound by it; but if a person has not registered his deed, though it may be by the carelessness of the attorney, (I have known cases in the course of my experience, in which attorneys' clerks have put the fees in their pockets and have not registered deeds at all, though they have been regularly charged for), the man's estate may be lost. A general register would not im prove any man's title to his estate, but I will not enter further into that. But in answer to your question, I should say that if you are to consider it an evil that the owner may encumber his property to the whole extent of its value, then of course the more you enable a man to make a good title, the more surely you lead to that conclusion; but the same thing that would enable him to encumber the estate, would enable him to sell it if the rules were properly carried out; however, as the law stands, I think that judgments in Ireland have the operation represented to the committee.

437. You stated that the owners of real property in Ireland, from the peculiar circumstances of the country, should, as far as possible, by law be guarded from their own improvidence; the question I put was, considering the practice in England as to charging land, which is generally by mortgage, attended with peculiar difficulties; and considering the facility that exists in Ireland for charging land by means of assigning judgments, whether the policy of the law in Ireland does not rather contravene that which you believe is desir able as a protection against the improvidence of owners ?-My answer to that is, I think it does,

438. You have said that, whether wisely or not, we have gone too far in establishing the effects of judgments in both countries to recede. Having given that answer generally, what would you say to a reversion of the law in Ireland, especially with respect to judgments being made assignable, and the effect of Sir Michael O'Loghlen's Act more particularly?—I think it would not be advisable to take away the power of assigning judgments, though it may be open to abuse, because now judgments have become almost as universal as bills of exchange. I can imagine now a small tradesman getting a judgment for a mere household debt, and then assigning it to another person in order to avoid the odium of getting a receiver over his customer's property. I think that not at all desirable, but that is the custom of the country generally. It

is very desirable, in my opinion, that the law of Ireland should be altered in this respect; it might, perhaps, be considered a strong measure to take away receivers upon petitions altogether; but I should have no hesitation, if I had the power, in very much limiting the operation of the Sheriffs' Act and the subsequent Acts, and in placing judgments in Ireland more upon the footing on which they stand in England; for example, if I had the power, I should not hesitate to limit the amount of money for which a judgment should bind the property, so as to give a right to a receiver under those Acts; that is, I would take some reasonable sum as a proper subject for a judgment and receiver, considering the expense attending such a proceeding; but as regards smaller sums, I would leave the creditor to his common law remedies, and to that credit upon which he no doubt relied when he furnished the matters in his trade. If that line were drawn, and another provision were introduced into the law, that no judgment creditor should have a receiver until after a certain period from the time of his obtaining judgment, I think the evil would be very much struck at, without alarming, which one would be very unwilling to do, the people in Ireland at the change in a law which they seem to be very much attached to.

447. And you object to extending to England a practice which does not now exist here?—Yes.

448. The practice being established in Ireland, through a priori, you may not consider it a desirable practice, would you leave it untouched?— Certainly; I think it would revolt the whole feeling of Ireland, which ought to be kept studiously in view and held sacred, as far as it is possible to do so; I would do nothing to outrage the feeling of the people of Ireland in that respect, for I am sure such a change would create universal alarm in the country. When a suit is instituted to sell an estate which is encumbered, by a judgment creditor or mortgagee, they have a habit of making every person a party to the suit who is a necessary party to the conveyance; that is not the case here in England; you bring the parties who have the title into court, and you do not bring other parties into court; you have them ready to join in the conveyance, but you keep them out of the suit, and when the purchaser is entitled to a conveyance, those parties come forward and execute it. I will mention the case of a lady in this country who was with a medical man under restraint: she died; she was entitled to a rent-charge upon several estates in Ireland, and there were three years' arrears; this medical gentleman (I have no fault to find with him) took out an administration to this lady, who had been his patient; he filed a bill in Ireland to make good his charge; there were only three years' arrears of rent-charge to collect, and the charge for searches preparatory to filing the bill in order to ascertain the proper parties to the suit was £720; I disallowed a great portion of it, but it was done under great advice; under the new rules that abuse could not occur again, because now solicitors in Ireland are paid, which they very much complained of, according to their labour; I do not know what such a case might cost now, but I should imagine that £20 or £30 would be the payment. I state 441. But the remedy of a receiver would not this to show what great expenses have heretofore exist in that case?—No; and it would be no hard-been incurred in selling an encumbered estate in ship upon the creditor that I am aware of; he would not have the remedy, which I think he ought never to have had, of obtaining a receiver upon petition, but he would be in the same situation as a creditor in this country would be in.

439. Would you limit the period to a year?-I should say that that was a very fit period; it gives a man a little time to look round him, and to provide for the payment of small demands, or even of larger demands; for it is to be recollected that this system of a receiver on petition is a great boon to the creditor; it is beyond what the old law gives him; it is a pure creature of statute; and therefore, if there are evils attending it, they may be, of course, remedied or altered by statute.

440. If the line were drawn as you propose, with regard to the amount, would a judgment below a certain amount affect the realty ?—Yes.

443. But can the judgment creditor apply for a receiver in England?-No; he cannot obtain a receiver in this way in England; there is no similar appointment of receivers in England upon judg

ments.

445. Considering the present unhappy circumstances of Ireland, and the extensive use of this power of charging land, with its present accompaniments, would there be danger in making a change of the law at this juncture?-On the contrary, I think this is the very moment at which to do it. As far as estates are so encumbered that the present owners cannot retain them, you are now attempting to introduce new blood or new life into Ireland, and it is therefore the precise moment, as it appears to me, at which to introduce a measure of that sort.

446. The general outline of the law with regard to judgments in Ireland you would leave unchanged? Yes, I would.

Ireland.

449. Does the multiplication of parties to a suit which you have mentioned, and which is attended with great expense, arise out of the state of the law, or is the remedy for that evil within the purview of the rules of the Court ?-The Chancellor in Ireland has very great power under Acts of Parliament. I have exercised that power to a very great extent, and even to a diminution of the revenue of the country; I could give an example. There was in Ireland, and which still prevails in England, the abuse (for I cannot call it anything else) of hourly warrants before the Master; a cause lasted for six or seven years in the Master's office, the parties met for an hour, and when they met again at the end of a week or a fortnight, you found that half of the time was always lost in considering what had been discussed or decided upon at the previous meeting, and so the cause went on from year to year. In Ireland there was a difficulty in altering that, because there was a stamp duty upon every hourly warrant, and that went to the Consolidated Fund; but I found that I had power to alter that system, and consequently I made a rule that there should be no hourly warrants, but

that there should be one warrant for a cause unless the Master directed an additional one, and that every cause should be heard straight through. The consequence was, that instead of there being scores of warrants in causes, there were only two or three, and instead of there being meetings which, for example, in one case had lasted six years, I found that after the new rule had come out the whole matter was disposed of in three days.

451, After the remedies which have been applied to the registration in Ireland, have you anything to suggest upon the subject of receivers ?—I am not prepared to give any advice upon the subject of receivers, but I have no doubt it wants some cor

rection.

452. Then we are to understand that, on the whole, the law as regards receivers you would maintain ?—Yes.

454. Chairman.] When you mentioned that you would, for judgments above a certain amount, grant receivers, would you still render it obligatory on the court to grant receivers, or would you leave it optional with the court to grant receivers or not, according to their discretion?-I think the court ought to have no option. The granting receivers ought to be a ministerial act merely. The duty of the court should be merely to see that the party applying is entitled to the remedy which he seeks; otherwise one Chancellor would give a receiver, and another Chancellor would not do so; and expense would be incurred, and nobody would be sure what the remedy was.

I

he does not care whether the farms are dilapidated,
or whether the land is out of heart.
He says, "I
will have every shilling of my debt out of the
estate." Now I would correct that at once; in my
opinion if an estate is brought under the dominion
of the court for the benefit of creditors, public ne-
cessity demands that if you make the court as it
were the master of the estate for the time, you
should give to the court all the power which be-
longs to an owner; and therefore I should feel no
difficulty, if I had the power, in making a law
which should give to the court a power, to be exer.
cised of course according to its judicial discretion,
with relation to the estates of encumbrancers gen-
erally as to their management, cultivation and
allowances, and so forth, in the same way as the
court would do with the estates of minors or of
lunatics.

(To be continued.)

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455. Have you thought of the limit that you would propose as to the amount of the judgments for which receivers should be granted ?-I cannot say that I have seriously thought about it, but IA COLLECTION of Copyhold PRECEDENTS IN should have no difficulty in stopping at £100. should be inclined to take even a higher sum. 457. With reference to the number of receivers that have been appointed, is it your opinion that that is a great evil?-Undoubtedly; the evils are so great that no country can prosper under them; I cannot conceive any greater evils. The first effect is to sever the relation of landlord and tenant; the receiver is not the landlord, and the consequence is that the receiver of course has nothing to look to but to get the rent, in order both to get his poundage, and to keep himself right with the court and the creditor. There has been a great misapprehension in the public mind as to the power of the Court of Chancery over receivers. In the case of the estates of minors and lunatics, the court has perfect power; and I have dealt with lunatics estates just in the same way as I would have dealt with my own estate. In the case of a peer who was a lunatic living on his own estate, I added a large sum to his allowance on my own motion, in order that, as he was living upon the estate, he might be able to live as the landlord, and fulfil the duty of landlord to his tenants. The court has the power to act as it thinks proper to any extent in these cases; but in cases of judgment creditors and mortgagees, it is said there is no money laid out in repairs, or in favour of the tenants; of course there is not, because the court has no power; the creditor does not care one farthing about the estate; he looks upon it merely as a security for his debt, and

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