« EelmineJätka »
No. 35.-VOL. I.
Per Annum, £I 10M
Single Number, ed. 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 Exchequers
John BLACKHAM, Esq., and and cluding Bankruptcy
A. HICKEY, Esq., Barristers-at.
M.Cartur, Esq., and
ing Civil Bill and Re- 3 SAMUEL V. Peet, Esq., Rolls Court..... WILLIAM JOHN DUNDAS, Esq., gistry Appeals......... Barristers-at-Law. Barristers-at-Law.
Exchequer of Pleas, in- ( Chas. H. HEMPHILI., Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court WILLIAM HICKSON, Esq., Bar
and Equity Exchequer..
and Registry Appeals. risters-at-Law.
ROBERT GRIFFIN, Esq. and W. G.
CHAMNEY, Esq. Barristers-at-law. Bankrupt Court.
S ROBERT Griffin, Esq. and W.G. CHAMNEY, Esq. Barristers-at-law.
CHAMNEY, Esq. Barristers-at-law
DUBLIN, JUNE 30, 1849.
the 11 & 12 Vic. c. 48, (the Incumbered Estates Bill of last session ;) and a judgment may now be released as to part, and be preserved as to the rest
of the land which it bound. A BILL “to amend the law of judgments in Ireland,” Much of the evil connected with this species of which will be found elsewhere in our present columns, security arose from the want of a single and proper has been brought into the House of Commons during registry; this has been removed by Sir Edward Sugthe past week, the provisions of which, if enacted in den's last act, 7 & 8 Vic. c. 90, an act for the protheir present shape, will rank among the most im- tection of purchasers, which, for the purpose of portant statutes of the session, repealing the 9 Geo. binding purchasers, rendered it necessary that every 2, c. 5, and the 5 Geo. 2, c. 14—the acts giving judgment should appear on the same registry; and power of assigning judgments, the 5 & 6 W. 4, no purchaser is affected, even though he have otherc. 55, s. 31, and 3 & 4 Vic. c. 105, s. 21, which gave wise notice of the existence and validity of the creditors the power of appointing receivers by peti. judgment. Another evil arose from the universality tion over the lands of their debtor-the statute of of the judgment binding every existing interest in Westminster, 13 Ed. 2, c. 18, and 3 & 4 Vic. s. lands, and every future interest. And a still greater 19—so far as they relate to the time at which the practical evil, was the facility of placing a debtor's sheriff is to find the seizure or possession of lands lands under under the controul of a Court of Equity by the defendant, (which, after the 31st of De- for a trifling debt of £5 or £10; and this was cember, 1849, is to be the period when the writ of much enhanced by the defective and ruinous system Elegit is delivered to the sheriff for execution, in- of managing estates by absentee receivers ; and by stead of, as heretofore, the entry of the judgment,) a court which was powerless for improvement, and and repealing the 3 & 4 Vic. c. 105, s. 22, by unfitted to assume the duties of a landlord over an which judgments were made a charge upon land. impoverished or rack-rented tenantry.
Whether benefit will be derived from those por- These evils were curable by limiting the amount tions of the contemplated Act which deprive a cre- of debt for which a judgment creditor could obtain ditor of the power of assigning his judgment, and a receiver, and by improving the system of managmake it to be no longer a charge upon the lands of ing estates under the control of the Court. But his debtor, we apprehend, will create much dif- despite even them, judgments were a favourite seference of opinion. The difficulties thrown in the curity in Ireland; they were the common assurance way of the transfer of land, in consequence of the of the country; any change in the laws affecting number of judgments affecting property in Ireland, them required caution, practical knowledge, great operated most injuriously both upon debtor and care, and deliberation. creditor, the expense of clearing the title from That part of the bill which deprives the creditor these charges being great.
of the power of appointing a receiver for judgIt had been also a matter of doubt, whether the ments to be obtained after the 31st of December, release of a judgment over part of the lands of the 1849, appears, we think, very objectionable. debtor did not extinguish it as against the residue ;
We believe, the policy of the legislature iu probut this has been set at rest by the 98th section of posing this measure was, to render the mode of proceeding upon judgments for the recovery of appointed, when the amount of the judgment ob. debts less facile, and the security less valuable, tained by confession was less than £100, or the in. and thus drive capitalists to lend their money upon come of his property available for the purpose of mortgage security. Even admitting the policy of the payment less than £50. In such case a summary measure to be well founded, there appears to be power of sale, on petition to the Master of the Rolle
, considerable doubt as to its well-working. Theor Lord Chancellor-who should be enabled to remedy by elegit is still left open to the creditor. give a parliamentary title-would be most desir. This is objectionable. That proceeding is more able. A measure of this nature, instead of interexpensive to the debtor, and less satisfactory to the fering with, would work in the direction of the creditor. The sheriff having found by inquisition present bill, by facilitating the transfer of land. the mates and bounds, cannot deliver actual pos- If the intention of the legislature was to abolish session, but only such seizure as will enable the the system of receivers in toto, we would not advocreditor to maintain his ejectment. The costs of cate their retention for this purpose alone; but these proceedings the debtor must bear, and per- independently of their existence in causes, receivers haps those of litigated accounts, as to how much of will be still appointed under the mortgage acts, and the profits of the debtor's estate the creditor should for at least twenty years under the 5 & 6 W.4, and or should not have received without default. He 3 & 4 Vic. is at the uncontrolled mercy of his creditor. His Independently of the policy of the bill before us, estate lets for less than the value, as the creditor we have never seen one which, on a cursory glance, can give no certain tenure, and is precluded from discloses a greater number of legal doubts. The abating rents, making allowances or improvements, first section repeals all those portions of the 5 & 6 as all would be charged against him in the account, W. 4, and the 3 & 4 Vic. 105, relating to receivers as so much that might have been received by him under the judgment acts, save so far as they relate towards the liquidation of his demand.
to judgments or decrees, &c., entered into before The policy of the measure being, as we have the 31st of December, 1849. Suppose a judgment said, to prevent the borrowing of money upon entered in March, 1849, revived within twenty judgment security, and supposing it fully effectu- years, could a receiver be appointed on the judga ated by the proposed measure, there still must be ment of revivor? This, we apprehend, will raise a a very large number of judgments in debt and serious question, which, we believe, has not been damages, in actions in the superior courts ; decrees, satisfactorily settled, and will be found discussed orders, and rules of the Courts of Equity, Law, in the cases of Farrell v. Gleeson, (11 Cl. & Fin. and Bankruptcy, which have, and under this bill 702); and Ottiwell v. Farran, (10 C1. & Fin. are proposed to be invested with, the effect of 319.) judgments entered after the 31st day of December, In the next place, under the provision in this bill 1849—which cannot be said to come within the there is no method whatever in proceeding upon a evils to be remedied, they not being strictly money recognizance, except by bill. The 31 sec. of the 5 advances. On all these, if execution against the and 6 W. 4, c. 55, enacts that no grant in custobody or goods be unavailing, the creditor must diam shall be made after the passing of that act, resort to his elegit. This could, we think, be except in trust for the crown; a receiver cannot better and less expensively done through the means be appointed upon any recognizance entered after of an improved system of receivers ; for which pur- the 31st of December, 1849. So that there will be pose a committee of the House of Commons is, at no summary made of proceeding on a recognizance this moment, collecting evidence as the foundation entered into after that date. of a measure for the improvement of the receiver The 2nd section enacts that the sheriff shall desystem. What we would propose is, that all per- liver execution unto the party, in that behalf suing, sons obtaining a judgment in an action prosecuted of such lands, &c. as the debtor, at the time when in a superior court of law, and all persons having such writ of elegit is delivered to the sheriff, had a money demand under such decrees, rules, or any disposing power. The 3 and 4 Vic. c. 105, orders, as would have the force of judgments, and extended the statute, West. 13, Ed. 1, c. 18, by which judgment or demand, exclusive of the costs conceding to the creditor the power of extending the of obtaining such judgment or decree, &c, should whole of the debtor's lands, but did not repeal it, not exceed £100, should still have the power of nor does this act. So that a question may arise appointing a receiver; and it might be provided whether the creditor may not still have his execu. that all persons whose judgments, under a certain tion for the moiety, the enquiry being as to what amount, should be founded on a warrant of attor- lands the debtor was seised or possessed of, as to ney, should not have this power. This, with an the moiety, at the time of the entry of the judgment improved system of receivership, and a reduction instead of the delivery of the writ to the sheriff unin the expenses of the petition, would work bene- der this act. ficially for creditor and country.
The 3rd section leaves the equitable rights of Whilst on the subject of receivers, though per- judgment creditors as they existed before the passhaps not within the scope of our present subject
, ing of the 5 and 6 W. 4, c. 55. we would suggest, that, whilst the amount of the The 4th section preserves the rights of judgment judgment over which a receiver could be appointed creditors after the 31st of December, 1849, with should be limited in the one direction, to preserve respect to the administration of assets, as they are the policy of the measure under consideration, and at present. for the benefit of debtors a receiver should not be The 5th section is a valuable enactment, giving judgments a preference to such conveyance, asceived any of the proceeds of the estate, in disunder the statute of Frauds, 10 Car., ! Stat., 2 c., charge of their demands, can be considered within 3 It, would be deemed void against purchasers for the meaning of the rule in question, as “ creditors money, or other good consideration.
by judgment or recognizance in possession of the The 6th section gives decrees and orders of the land or property the subject of the suit.” Court of Chaucery, and of the Equity Exchequer;
In practice, we believe, it is usual to make such and rules of the courts of common law; and all
persons parties to the suit, and, perhaps, in the orders of the Lord Chancellor, or Master of the absence of judicial authority, it is the safer course Rolls; or of the Court of Commissioners of Bank
-the inconvenience accruing from payment of ruptcy ; or of the Lord Chancellor in matters of their costs, if they should be held to be unnecesLunacy
, to be made after the 31st of December, sary parties, being less than that arising from their 1849, the same efficacy as judgments entered after absence, if necessary. Following the analogy of that date will have by virtue of this act.
the law and practice of Elegits, for which the reThe 7th section gives the same force to judg-ceiver, under the statutes mentioned, is substituted, ments of the inferior courts removed to the superior, the better opinion would appear to be that until the as the last section gives decrees and orders, &c.
creditor receives a payment on foot of his demand, The 8th section gives the power of framing new he is not in possession within the meaning of the writs.
order, except he is either the creditor appointing Looking at the general frame and policy of this the receiver and having a priority, who, in that case, bill, with the exceptions stated, we think this must be taken to be in possession from the compleis one of a class of measures which have been intro- tion of the appointment of the receiver, or having duced without due consideration. That portion of originally extended the receiver, is the next in order it which takes away the power of appointing a re- to be paid, the demand of the prior creditor being ceiver and re-introducing the exploded system of satisfied, and the creditor accounted with by the elegits
, and the taking possession of the debtor's receiver. In these cases the receiver being in perlands subject to an account in a court of law, we ception of the rents for the benefit of the creditor consider mischievous in the extreme. It is a recur- it must be taken to be his possession though no rence to a bad system, fraught with the most extensive national evils. We hope the Irish Members
money be actually paid him. will make a stand against the Bill. They will
Before the passing of the 5 & 6 W.4, c. 55, gendeserve the greatest censure, if it does not meet erally known as the Sheriff's act, if a judgment crewith a reasoning, well-considered, but most deter- ditor issued an elegit, and went into possession, and mined opposition.
another creditor of the same nature issued a second The measure before us is sweeping, and will be elegit, he could not get possession of the moiety received with great alarm by every professional already extended; if his judgment were of the same man and every judgment creditor in Ireland.
term as the first, the sheriff would give him the other moiety; if not, a moiety of that moiety (Cro. El. 481), that is, a fourth of the whole. And if the whole of the lands of the debtor, by two elegits
of the same term, or by successive ones of different Taz 21st general order of the Court of Chancery, terms, were to come into the possession of creditors, 1848,* directs, “ That when the plaintiff shall make sheriff would return to any subsequent elegit, “no
no other creditor could go into possession, as the a party to the suit, any person against whom no account
, judgment, conveyance, or other direct lands,” (Imp. office of Sheriff, tit. Ex. Elegit.) And relief is sought; or any person having a demand since the passing of the 3 & 4 Vic. c. 105, sec. 21, founded upon a recognizance or judgment, who which enables the creditor to extend the entire of shall not be in possession of the land or property,
the debtor's bonds, no subsequent creditor could the subject of the suit, or some part thereof, and get possession till the est were paid off. shall require such party to appear and answer the The 5 & 6 W. 4, c. 55, sec. 31, enacts, that any bill
, the costs so incurred shall be paid by the person entitled to sue out, or who has already sued plaintiff , &c.” out a writ of elegit, upon any judgment in any
of If a suit be instituted in a court of Equity, and the superior courts of law, &c., may apply by pethe land, the subject of the suit, be liable to more
tition to the Court of Chancery, or to the Court of than one judgment debt, and the owner of one
Equity Exchequer, for an order that a receiver may prior to the filing of the bill—have appointed a
be appointed of the rents and profits of all lands, receiver by petition under the 5 & 6 W. 4, c. 55, tenements, and hereditaments which he would be enn and the 3 & 4 Vic. c. 105, over the whole or a
titled to have extended or appraised under a writ of portion of the land, and though the receiver be in elegit. This enactment plainly substitutes the rethe actual receipt of the rents and profits, and the ceiver for the elegit. The creditor must not only subsequent creditors have extended that receiver be in a position, with respect to his legal proceedto their own judgments, a question may arise as to ings, to issue an elegit, but he can have his receiver whether the subsequent creditors, not having re.
over such property alone, as he could have extended under an elegit; and on examination of the multi
farious cases on the appointment of receivers under * The analogous rule is the 9th of the Equity Exchequer this act, the courts will be found to have acted strictly orders, 1844.
in accordance with the decisions in elegit matters. The
subsequent act, 3 & 4 Vic. c. 105, s. 19, extended it was decided that where there was a fund in court, the jurisdiction of the court enabling them to ap
or in the hands of a receiver appointed at the in. point receivers over property which, neither under stance of a judgment creditor, it should be treated as the former act, nor by elegit could the creditor if it had been realized by the judgment creditor reach. With this exception neither the 5 & 6 W. himself when in possession under an elegit
, and that 5, nor the 3 & 4 Vic. alter in any way the nature it consequently should be paid to him, notwithstand. of the receiver's position as the mere representative ing a claim by a prior specific incumbrancer. And of an elegit creditor in possession, and when ex- in Hanley v. Langford, (5 L. Rec. 2 S. 203.) the tended by a second creditor, who could not get pos- court-where it appeared on the face of the bill that session in consequence of the possession of a prior the judgment creditor had proceeded by petition for creditor, he was in the same position as if the se- a receiver, but was disappointed in recovering his cond creditor, having kept his elegit alive by con. demand, in consequence of objections raised, and tinued returns, until the first being paid off, the that the whole demand was still due_expressed an sheriff was enabled to give him possession. So, opinion that it need not be averred that he had under the provisions of these acts, a continuing sta- issued an elegit ; such proceeding being equivalent tutable right to go into possession by each creditor to the issuing execution at law-Mr. Baron Foster who might extend him to his demand according observing, that “the creditor was in the same sitng
. to his priority, is vested in the receiver; and the tion as if he had issued execution, and there were inclination of the authorities appears to be in this a return of nulla bona. The court had, in fact
, direction. In Morrogh v. Hoare, (5 I. E. R. 195,) told him there were nulla bona."
İLCJ Blackburne Justice Torrens. Justice Ball. B. Pennefather. Baron Lefroy. L. C. B. Pigol
Tuesday, July 3 Trim,
Roscommon, Drogheda Enniskillen, Limerick & City,
[oon, Monaghan, Sligo,
21st June, 1849.
“ remedies of creditors against the property of
“ deblors, and for the further amendment of the A BILL TO AMEND THE LAW CON- “ law, and the better advancement of justice in CERNING JUDGMENTS IN IRELAND.*
« Ireland,” it was enacted that it should be lawful Note.—The words printed in Italics are proposed to be for the sheriff or other officer to whom any writ of
elegit, or any precept in pursuance thereof, should inserted in the committee.
be directed at the suit of any person upon any Whereas an act of the Parliament of Ireland was passed in the ninth year of King George the Second, judgment which, at the time appointed for the com? passed in the ninth year of King George the Second 'mencement of that act should have been recovered, intituled . an act for the more effectual assigning of
or should be thereafter recovered in any action in judgments
, and for the more speedy recovery of rents by distress :' and an act of the Parliament of any of Her Majesty's superior courts at Dublin, to
make and deliver execution unto the party in that Ireland was passed in the twenty-fifth year of King behalf suing of all such lands, tenements, rectories, George the Second, intituled • an act to explain and tithes, rents, and hereditaments including lands "amend an act passed in the ninth year of the reign and hereditaments, which might be of copybold
of his present Majesty, intituled“ an act for the tenure, as the person against whom execution more effectual assignment of judgments, and for
was so sued, or any person in trust for him the more speedy recovery of rents by distress," so should have been seized or possessed of at the time far as the said act relates to the assignment of of entering up the said judgment, or at any time - judgments and statutes, and to prevent great in afterwards, or over which such person should, at conveniences that frequently happen to the suitors the time of entering up such judgment, or at any
of the Court of Chancery by the death or removal time afterwads, have any disposing power which of a six clerk or six clerks of the said court, and he might, without the assent of any other person, * to enable grand juries to make presentments for exercise for his own benefit, in like manner as the
the clerks of the crown and peace : and whereas sheriff or other officer might then make and deliver by an act passed in the sixth year of the reign of his execution of one moiety of the lands and tenements late Majesty King William the Fourth, intituled
any person against whom a writ of elegit was an act for facilitating the appointment of sheriffs sued out, which lands, tenements, rectories, tithes, « in Ireland, and the more effectual audit and pass. rents, and hereditaments by force and virtue of such ing of their accounts; and for the more speedy execution should accordingly be held and enjoyed return and recovery of fines, fees, forfeitures, re
the party to whom such execution should be so cognizances
, penalties, and deodands; to and abo- made and delivered, subject to such account in the olish certain offices in the Court of Exchequer in court out of which such execution should have been
Ireland; and to amend the laws relating to grants sued out as a tenant by elegit was then subject to in custodiam and recovery of debts in Ireland ; in a court of equity; and it was enacted, that it and to amend an act of the second and third years should be lawful for any person entitled to sue out of His present Majesty, for transferring the powers or who had already sued out a writ of elegit upon and duties of the commissioners of public accounts any judgment recovered in any of Her Majesty's in Ireland to the commissioners for auditing the courts at Dublin, or to issue, or who had issued expublic accounts of Great Britain,' it was enacted, ecution in any suit or proceeding on any recogni. that it should be lawful for any person entitled to
zance there, to apply by petition to the Court of sue out or who had already sued out a writ of elegit Chancery, or to the Court of Exchequer at the upon any judgment recovered in any of His Majesty's equity side thereof, for an order that a receiver courts at Dublin, or to issue or who had issued ex
might be appointed over any lands, tenements, rececution in any suit or proceeding on any recogni- tories, tithes, annuities, rents, or hereditaments by zance there, to apply by petition to the Court of that act made liable to be seized, extended, apChaucery, or to the Court of Exchequer at the praised, or taken in execution on any such judgEquity side thereof, for an order that a receiver ment, or to order that any receiver appointed before might be appointed of the rents and profits of the the passing of that act over the property of any entire, and not of a moiety only, of all lands, tene; judgment debtor might be extended to the matter ments, or hereditaments which he would be entitled of such new petition, and that in proceeding under to bave extended or appraised under a writ of elegit, the said act of the sixth year of King William the or extended, seized, or taken under a writ of levari Fourth and the act now in recital the said court of facias, or other proceeding on such recognizance, Chancery and court of Exchequer at the equity or to have a receiver thereof appointed by that side thereof should have power to appoint or extend court extended to that matter, and it should be law- a receiver in a summary way, on a petition at the ful for the court to appoint or extend a receiver ac- instance of such person, over any property of such cordingly over the whole thereof, or over so much judgment debtor which such creditor would or could thereof as should appear to it sufficient for the pur- make available for the payment of his judgment poses of paying the sum due on such judgment or debt by filing (after a writ of execution had been recognizance : and whereas by an act passed in the issued and returned at law upon such judgment) a fourth year of Her Majesty's Reign, intituled “ An bill in a court of equity, or by any writ of execution " act for abolishing arrest on mesne process in civil at law, or (subject to the proviso therein-after con" actions, except in certain cases, for exteuding the tained) by petition under the provisions of the act
now in recital, and it should be lawful for the said • Prepared and brought in by Mr. Solicitor General, Lord courts respectively to appoint or extend a receiver Jobe Russell, wod Sir William Somerville.