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ing a receiver regard should be had to qualification, testimony so relevant and clear, it may not be with. without reference to the nomination of the solicitor out advantage to set forth in this part of the report of the party having the carriage of the order, it the description of the mode of letting land to a tenant appears by his evidence that the court has succeeded under the court. in obtaining a competent and useful receiver. The

“What is the course of the court with reference security required is frequently very large, amount to the letting of lands, as contrasted with a case in ing to two year's rental, so that when the appoint. which the inheritor lets land to a tenant? There ment is about to be made a candidate procured by ceiver circulates handbills in the neighbourhood the plaintiff's solicitor is ready with his security, stating that on a certain day in the Master's office and competition is virtually excluded. It would in Dublin, certain lands will be set up to be let. The appear that by an alteration in the time and manner tenants may come, or send up some one to appear of accounting, the necessity for so large a security, for them; and it is a regular auction; they bid and in the form of a recognizance, might be avoided against each other for certain farms, upon such terms and this of itself would be a step in favour of com- as they propose, and the highest bidder carries it

: petition. Forms and amount of security less diffi- and immediately they are called upon, before they cult to complete, and equally satisfactory, might be leave the office, to lodge £6 48. 4d. for the lease and sanctioned with advantage.

the recognizance, in which there must be two sure. Your committee agree in the opinion that it is ties. against public policy to allow any member of the “ In addition to the lease they have to perfect a legal profession to act as a receiver, unless by, spe- recognizance? Yes; they have to perfect a recog. cial order of the court, made on notice to all the nizance with two sureties, which I cannot but think parties in the cause or matter pending, where the is a very mischievous thing. No person will court may, under peculiar circumstances, consider surety for a tenant but one of themselves; and de the appointment entitled to its sanction. By a re either presents men who qualify upon oath, but turn of the receivers under the courts of equity in really have no means, or he draws in one of that Ireland, which has been made to the house and re- class which ought to be regarded with the greatest ferred to your committee, it appears that in many interest I mean the solvent and industrious clas instances receivers have been appointed and are now of persons. I never knew an instance in which acting in contravention of the rules of the courts. It money was recovered from the tenant's surety; and would seem to be of importance to have every one I was always glad that it was so, for I felt that it removed who has been so appointed, and so con- would be a very painful thing to drag down, tinues to act; the costs of obtaining such removal perhaps, the most useful man on the estate in the to be paid by the receiver and any solicitor or party ruin of his neighbour ; but in nine cases out of ten in the cause or matter who has procured the appoint- the sureties are persons who swear themselves to ment. It would also be advisable to have the ac- be worth so much, when they really are not; all counts of receivers inspected and balanced with con that is a very expensive operation. This difficalty venient dispatch up to some fixed period. In the has been felt by the masters so much that they have present state of the country, and the difficulties agreed that in every case where the rent is not more which press on proprietors, the most vigorous and than £15 they will allow a mere agreement upon a efficient steps should be taken promptly to relieve stamp to be received.

We find it utterly impossiproperty from the abuses of a system so ruinous to ble to induce those poor men to give this large sun private rights and discreditable to the administration of money. of justice.

“Do you think that recognizances might be, withYour committee would recommend that the courts out the slightest diminution of security, done away of equity should be aided by whatever legislation is with ?- With great advantage. proper to enable them to arrange and execute such a “ Of what items is that sum of £6 48. 4d. comcode of rules as would be likely to encourage, if not pounded which you mentioned as being required to secure the selection of a competent person as receiv- be deposited ?—There is £3 14s. for stamp duties

, er, wherever the appointinent must be inade. These and £2 10s. for fees. The stamp duty on the recog. rules might further provide for the lodgment of mo. nizance is £2 148. ; then on the lease, if it be for nies from time to time, when received, as required the lowest amount—that is, £10 aud under the in the case of county treasurers, under the act of 1 stamp duty is £l. The Master's Examiner has a Vic. c. 54; the balancing of the accounts at conve- fee of £1 13s. 3d. for preparing the recognizance nient intervals; periodical reports of the condition and the two parts of the lease. There is a fee upof the estate; and occasional inspection and report on the enrolment in the Recognizance-office of Its. by some competent and responsible person under 7d. and there is a house keeper's fee of 2s. 6d. the direction of the court, and unconnected with any Then, besides that, the Lord Chancellor finding interested party. It also appears to your committee that these recognizances had not been registered that the mode of letting lands under the court ought under Sir Edward Sugden's register of incumbranat once to be discontinued.

The extravagant ex.

ces, directed that every lease should be registered; pense of a lease and its accompaniments, as detailed the expense of that is £l 3s. 3d., which is paid to by Master Brooke in his evidence, is unnecessary the tenant's own solicitor, which I find works most for any purpose of policy or justice. Although not vexatiously, for they used to feel that having paid perhaps necessary to any considerable extent to di. this £6 4s. 4d., they had done with it; but now rect attention to extracts from the evidence where they find that the leases will not be received unless the witnesses are so few and competent, and their they further go to a solicitor, who will take them to

court.

of 5s. each.

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the Register office, for which he demands £l 3s. and enforce remedies in a manner consistent with 3d.

justice, and calculated to promote the interests of “With the exception of the stamps, are these

the property charges peculiar to causes in Chancery ? — Yes ; Your committee also are of opinion that the even the stamps are peculiar, so far as they are want of uniforinity in the system of management stamps upon the operations which go through the under the two Courts of Equity in Ireland, and the

opportunities for fraud whereby different receivers “What are the stamps upon the lease ?- Two may be appointed over the same property under stamps of 58. on the lease, and as much on the their concurrent jurisdiction, have materially aggracounterpart.

vated the evils of the general system. " How inany of those charges vary with the Your committee feel much encouraged by the amount of the stipulated rent ?-Only the two sums manner in which these evils have been exposed by

all the witnesses who have been examined ; afford. " Then with that exception, a man taking a farm ing the assurance that in carrying out prompt and of £10 pays as much as a tenant taking a farın of practical remedies, the cordial co-operation of those £150?--He does.

who best understand the system, and are most deFrom your experience both at the bar and as sirous for a thorough reform of its abuses, is at the master, do you think that the recognizance, with public service. this heavy charge upon it, affords any valid security Although your committee have felt it to be their for the payment of rent?-I think it perfectly use- duty to suggest the foregoing amendments in the less, at least in 99 cases out of 100.”

existing system of management of estates under the Your committee cannot but condemn this vicious Courts of Equity, they do not express any opinion practice, the tendency of which is to induce an im. whether the evils now so justly complained of will provident competition, in a country where the pos be sufficiently remedied by any such alterations. Session of land is regarded as almost one of the Nor are they to be understood as expressing their necessaries of life; and especially where it is at- opinion that the substitution of a totally new systended with an unreasonable amount of cost to the tem is not demanded by the exigencies of the case. tenant. The various items which constitute the The late period of the session at which your comcharge, it is to be hoped, will at once be swept mittee was appointed has prevented them from away without reserve ; for it does not appear why taking evidence sufficient to enable thein to decide the selection of a tenant and the perfection of a on the merits of the plans which have been sublease might not be accomplished by the court at as mitted for consideration. In the Appendix will be moderate a cost as in the case of an ordinary letting found the draft of a bill prepared under the sancunder private agency.

tion of the Lord Chancellor of Ireland, proposing On the whole, it seems to your committee, that an official plau of receiverships; another plan has by the exercise of a reasonable care in the selection been presented by Mr. Hamilton, in his private of the tenant, and using the means now available capacity; and a third, prepared by Mr. M.Cay, is for ascertaining the value of the land, and by in- also to be found in the Appendix, and referred to serting in the lease sufficient covenants and condi- in the evidence. tions which should provide for proper cultivation It is of obvious importance that, under the presand beneficial expenditure, but prohibit subdivision sure of existing circumstances, the primary object or exhaustion of the demised property, the present to be kept in view should be to effect a gradual repractice of letting might be safely and usefully duction in the extent of property under court mansuperseded, to the great advantage of all parties agement, and that any legislative interference concerned Nor should any consideration con- should be regulated with this expectation. nected with fees or stamp duty be suffered to pre

The transfer of an estate to the dominion of the vail against the higher exigencies of the general in-court, as it is occasioned by the creditor's proceedterest of the country.

ing, should not be attended with any delay not It might perhaps be provided, that the recovery absolutely required for the satisfaction of the claim. of rent should generally be enforced by summary The startling ainount of this class of property vow process, on the certificate of the master, adjudicat- under the court, and every day increasing, exceed

ing on the amount of rent due. The facility of ing at least one million of the rental of Ireland, is · litigation, where facts are not doubted, enables a in some degree explained by the peculiar circum

fraudulent tenaut to postpone his liabilities, and an stances of the country, and the trying visitation

unprincipled receiver to abuse his powers, by fre- with which it has recently been afflicted. Whether 1 quent appeals to the law, which occasions the ac- some means might not be devised, by which sales

cumulation of unnecessary costs, and is mischiev. might be encouraged, without peril to the interests ous and demoralizing. Where the question is, of parties whose rights attached on property estiwhether so much rent is in arrear, the fact is mated at a standard of value, which cannot be capable of being ascertained without vexatious liti- largely reduced without a sacrifice of these rights, gation. Where it is of real consequence by a strict is not, perhaps, within the strict province of your and just policy to cultivate, if not create, habits of committee to discuss. It is, however, an important punctuality, it would seem to be a suitable uppor- object that sales should be facilitated and receivers tunity, in regulating the future management of discharged as speedily as can be effected without estates under the Courts of Equity, to confer rights injustice.

Journal.

It appears from the evidence that the practice of

NEW LAW BOOKS, the court might be modified so as to further this

Lately published by object.

EDWARD J. MILLIKEN, 15, COLLEGE GREEN. In the early part of the year 1847 the Master of the Rolls, with the aid of an experienced officer of

Just published, price 3s., by post 3, 6d. his court, prepared the draft of a bill

, with a copy LAW OF DEBTOR AND CREDITOR IN IRELAND. of which he has favoured the committee, and which and for the recovery of the possession of small tenements before Justice is inserted in the Appendix to the evidence. The the professional and trading classes.

the Peace, with a full Commentary, Index, Notes and Forras, adapted lege objects proposed by this draft were to simplify pro

By WILLIAM GERNON, Esq., Barrister-at-law, ceedings in Chancery for the sale of incumbered “The concise and lucid style in which the subject of this work is treated

cannot fail to render it c'ear and intelligible to the most limited capacity property, to remove the evils in practice which oc- *** We can confidently recommend it to the patronage of the profesios

, casioned delay and expense, and to redress such

and the public at large."- Freeman's Journal.
"The value of this

Treatise is much enhanced by the forms appended, abuses as bad been discovered by himn in the course

and the whole is a very good available summary which will be found alle useful to the Lawyer, the Magistrate, the Proprietor of landed property

, of his professional and judicial duties.

and the Trader."-Dublin Evening Mail. Sir Edward Sugden, in his evidence, states that the

12mo. Second Edition, Price 2s. 6d. -by post, 3s. Court of Chancery in Ireland might be worked with THE Action facilitate the Sade Diferencumbered Estates in as much expedition in prosecution of suits as any

the provisions of the Act,) for the Sale of Lands subject to Incumbrands other superior tribunal. He recoinmends the prac

By W. M. M'CAY, Esq., Solicitor. tice which obtains in England in suits by mort- "! This book should he in the hands of every one interested in Triste gages, as encompassed with fewer difficulties than estates, or the securities affecting them."-Dublin Evening Mail

" It possesses the valuable quality of being intelligible to the pot.se that which has been established in Ireland ; but, on fessional, as well as instructive to the professional reader." _Preeman's the other hand, it is stated by the Master of the

12mo. price 25. 6d. -by Post, 3a. Rolls, that the course in Ireland is

; in its general A TREATISE ON THE LAW IN DER CONTEGRAPI-EADER, principles, better adapted to the exigencies of that country and is capable of being simplified and freed

with an Appendix, containing the Act 9 & 10 Vic. c. 64, with Parma of

Affidavits, Rules, Orders, and the Record on a Feigned Lacue. By long from objection by such a measure as that which he BLACKBAM, Esq., Barrister-at-Law, has prepared.

8v0. price 168.-free by Post, It may be anticipated that by the aid of the legis- A PRACTICAL TREATISE ON PLEADING BY lature, with the co-operation of the judges and officers

the General Orders. By ALFRED MOFARLAND, Esq., Barrister at Law, of the courts of equity, an improvement may be gra

EPORTS of PRACTICE AND NISI PRIUS CASES,

R! dually accomplished in this department, which must

(including Registry and Civil Bill Appeals,) DECIDED in the SUPE for some time, deal with a large portion of the pro

RIOR COURTS, and at the AFTER SITTINGS; with Inder and

Table of Cases. By J. BLACKHAM W. J. DUNDAS, and R. W. OSBONNE, perty of Ireland.

Esqrs., Barristers at-Law. Part IV., completing Vol. 1., price 5s. Your committee recommend the repeal of the

UESTIONS FOR LAW STUDENTS on the Second power of legally assigning judgments hereafter to QUEM

Edition of Mr. Serjeant Stephen's New Commentaries on the Lawi of England. By JAMES STEPHEN, Esg of the Middle Temple

, Bar. be acknowledged; they think it also advisable to rister at. Law. I vol. 8vo, cloth boards, price los. 6d. repeal the right of appointing a receiver on a judgment, where the unsatisfied demand does not exceed CONCISE FORMS OF WILLS, with Practical Notes.

By W. HAYES and T. JARMAN, 4th Edition, cloth bds. Iss, £150; to give a year of grace on a judgment, in all cases, before a receiver can be obtained; and to THE LAW OF HUSBAND AND WIFE. A Treatise treat the costs of appointing a receiver as part of upon Roper's Treatise, and comprising Jacobs Notes and Additions thereo. the debt, to be paid in the same priority only; to royal 8vo. £2 105. boards. give a legislative sanction to such rules as may be TREATISE ON THE LAW OF LEGACIES. By considered proper to secure the appointment of the late R. S. DONNISON ROPER, Esq., Barrister-at-Lar,

Gray's.inn; and by H. H. WHITE, Esq., Barrister.at.Law, of the Mid. competent receivers, and the useful discharge of dle Temple Fourth Edition, 2 vols, royal 8vo. £3 38. boards. their duties, in the least expensive manner—to give

TREATISE ON THE LAW OF EVIDENCE, as the court the authority already suggested ; to be ex- administered in England and Ireland; with Illustrations from the ercised according to the principles of equity

American and other Foreign Laws. By JOHN PITI TAYLOR, E

of the Middle Temple, Barrister-at. Law. 2 vols, royal 880 22 10. jurisprudence, and the peculiar circumstances of each case, under the restrictions which have been A SELECTION OF LEADING CASES IN Various

Branches of the Law, with Notes. By JOHN WILLIAM SMITH, stated.

Esq., of the Inner Temple, Barrister.at. Law. Third Edition R, HS

KEATING, Esg, and "JAMES S. WILLES, Esq., of the loner Temple In conclusion, your committee wish to express

Barristers at Law. 2 vols, royal 8vo. £2 128, 60. their conviction, that the present management of properties under the courts is attended with equal

All communications for the IRISH JURIST are to be left, addressed

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1

Irish Jurist

No. 39.- Vol. I.

JULY 28, 1849.

PRICE

SPer Annum, £1 10s.

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DUBLIN, JULY 28, 1849.

such execution shall have been sued out, as a party to whom execution is made and delivered under the

recited provision of the said act of the 4th year of It would be impossible to predicate what changes her Majesty, is made subject to under such prothe bill to amend the law concerning judgments in

vision.” Ireland is fated to undergo. As altered by the

The recited provision was the 19th section of Committee, it has assumed a very mitigated aspect the 3 & 4 Vic., by which the entirety of the debtor's from that which it wore when it made its first ap- delivered in execution, and the elegit creditor was

lands, both present and after acquired, could be pearance.

As the bill originally stood, no receiver could be made subject to such account in the court out of appointed on judgments to be obtained after the which such execution should have been sned out, 31st of December, 1849; it is now proposed to

as a tenant by elegit was then subject to in a court allow the existing law to remain unchanged, of Equity. save that no receiver can be obtained

upon judg

The new bill varies from this provision, by leavments, decrees and orders having the effect of ing out the words “ or at any time afterwards,” and judgments, entered up after the passing of the act, by rendering the existing, and not the future prowhere the amount shall not exceed £150. Neither perty liable to be delivered in execution; the mode are such judgments any longer to remain a charge for the last nine years a judgment creditor bad the

of accounting is the same. It is observable, that upon land from the time of their being entered up; but by the 3rd section it is enacted « That the power of obtaining the entire of a debtor's lands sheriff or other officer to whom any writ of elegit

, under an elegit, subject to an account in a court or any precept in pursuance thereof is directed, at of Law, and yet there is no reported instance of a the suit of any person, upon any judgment subject creditor ever resorting to such a remedy, when he to the provisions of this act, recovered in any

had the alternative one of a receiver in a court of action in any of her Majesty's superior courts at

Equity. Dublin, shall make and deliver execution unto the

We commend the alteration in the proposed bill, party in that behalf suing, of all such lands, &c., as

of depriving a judgment creditor for a small sum the person against whom execution is so sued, or

of the power of appointing a receiver, whilst the any person in trust for him, is seised or possessed present receiver system is allowed to continue ; of, at the time when such writ of elegit is delivered though the better test would probably have been to the sheriff or other officer, or over which the the value of the debtor's lands, and not the amount person against whom execution is so sued out has, of the creditor's debt; but we are by no means at the time when such writ of elegit is delivered as

enamoured of the remedy by elegit. aforesaid, any disposing power which he might,

The 12th Report of the Committee of Enquiry without the asseni of any other person, exercise into the courts of justice in Ireland, in giving a for his own benefit, which lands, &c., shall accord- history of custodiams, and the monstrous abuses to ingly be held and enjoyed by the party to whom which they led, contains a few observations on such execution shall be so made and delivered, sub- some of the defects connected with the law of elegits. ject to such account in the court out of which Amongst others, the expense of the remedy by

ejectment, as sometimes being very great owing to debtor in Trinity, 1851, which becomes a charge the obstacles interposed by setting up prior leases, from the date of its entry, and has thereby obtained by reason of which the creditor was obliged to file a priority over a judgment which was prior in point bill in Equity to remove temporary bars. They ob- of time, and the latter judgment creditor can dis serve, “It is likewise a hardship incident to the pro- place the former. ceedings under the elegit, that the debtor, in every There is an obvious injustice in this. The cause instance where

an account is to be enforced, is obliged of the outcry raised against the security by judg. to have recourse to a suit in Equity; a farther dis- ments has been not from its intrinsic mischiel, bør advantage arises both to the creditor and debtor from that of the receiver system, and because of it from the responsibility of the creditor, on the one are we to be forced back to the worse evils of an hand, in a court of Equity for the full, unascertained exploded system? It would have occurred to us at value, and his uncontrolled discretion, on the other, more wise on the part of the Legislature to have in in setting any lands extended which become out of quired whether the mode of managing estates under lease.”

the Court of Chancery was not improvable

, to have It may be as well to mention what discretion the traced out the cause of the evil and gone to its root

, courts of law exercised in granting or refusing an and if it were undiscoverable or irremediable to bare account. O'Brien v. Goold, (Al. & Nap. 41 ;) per explored a fresh remedy, and not through ignorance Curiam.—“Where it appears in the first instance or forgetfulness to fall back upon a practice which that complex questions are sought to be brought former statesmen condemned. before the officer, the Court will refuse the ac- The Committee of Enquiry, to which we hare count.”

already referred, suggested the expediency of perHolmes, amicus Curiæ, mentioned to the Court mitting the elegit debtor by summary petition toob. that the Court of Exchequer always refuses such a tain an account in a court of Equity, and this was reference when it appears to involve any complex by no means a bad suggestion, confining the quesquestion.

tion solely between debtor and creditor. For the It was to meet this state of the law that in all sake of the tenantry we wish to go further and vest probability the words were inserted in the 3 & 4 some power in a controlling hand pending the conVic. c. 105, s. 19, “ subject to such account in the tinuance of the elegit. court out of which such execution should have been If we be right in assuming that the alterations in 80 sued out, as a tenant by elegit was then subject to the bill were made with a view to keep small proin a Court of Equity.But the insertion of these perties from the control of courts of Equity, and to words effects little or nothing, as the officer of a extinguish cognovits, or judgments by confession for court of common law has not the power to take the trifling sums, we think those purposes would have accounts in the same way that an officer of a court been fulfilled by prohibiting the appointment of re. of Equity could; the former cannot examine the ceivers, and there should have been a difference as parties themselves on oath, the power of personal to classes of judgments, in respect of their being a examination being confined to courts of Equity. charge upon lands, in cases where they have been

It was not alone when considered with respect obtained in adverse actions, and when obtained by to creditor and debtor, that the system of elegit was confession; in the former they should, so long as productive of public mischief and private hardship; any judgments are a constituted and fixed lien on the

poor working farmer was the sufferer. Powerless land, be so likewise. The Receiver Committee sug. as the Court of Chancery has been to allow improve- gested that there should be a year of grace from the ments, it was enabled to attend to his interests better entry of the judgment in all cases before a receiver than the elegit creditor; he might, if the lands were could be appointed; in the amended draft bill we see out of lease, let at what value he chose, but whilst no such provision; it may, however, have been, ere this, the rent was reserved by lease, he could not abate, inserted. They further recommend that the costs or improve, or do a single act of a landlord, except of appointing a receiver should, as in causes, be paid screw out the rent. Amid the conflict of elegit cre- in the same priority as the demand, and not be the ditors, extending bit by bit of the debtor's land, the first charge on the fund; we know not whether unfortunate tenant knew not to whom he was to pay this provision has been inserted. his rent; and yet those evils are about to be re-in- Having regard to the lateness of the introduction troduced, the remedy of the creditor to be confined, of the measure, its great metamorphosis since that and to confine him to a bad one. The question is, introduction, and the importance of the subject

, we no doubt, one of extreme difficulty; it has not been trust sincerely the House of Lords will postpone it happily solved by the present bill.

until the next session. It has not been prepared Let us take a practical test of some of the injustice with sufficient care or thought, or steadiness of delikely to spring from the want of uniformity in the sign. same mode of assurance which will be occasioned by As a matter of legal curiosity we should be glad the proposed measure.

to learn whether it was ever submitted to the Irish There is no distinction made between judgments Law Officers, or whether their advice or suggestions obtained in adverse actions and those by confession. were ever asked. Let us suppose a just debt for which the creditor is obliged to sue ; he obtains his verdict and his The case of Molony v. Nugent will be found rejudgment in Michaelmas Term of the year 1850, ported in another part of this journal. An appeal brings his ejectment, and, after much difficulty, de has been lodged from the decision of his Honour, livers his writ

, and gets possession in Michaelmas, and, by permission of the Chancellor, will be heard 1851. A judgment for £160 is confessed by the same on Monday.

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