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On the merits of this particular case, whilst it is can add weight to testimony, recollects with gratistill sub judice, we shall offer no opinion. The tude and pleasure the incalculable benefits he rereasons assigned by his Honour for removing the ceived from the common-law lectures of our Univerreceiver, raise a question of considerable public im-sity Member † at the Dublin Law Institute, which, portance. It will appear from a perusal of his if published, would rank with the deservedly admired judgment, that the only ground of disqualification course on contracts by the late J. W. Smith, Esq. for office on which he relied, was the fact of Mr. This is but a return to the opinion of our ancesJoly having been an attorney. There is no rule of tors learned in the law, and carrying out the object court to prohibit such an appointment—no ground for which the Inns were founded. In the preface to of misconduct brought against him, except general Mr. Sullivan's series of lectures on the Feudal Law, charges of having allowed arrears to accumulate-delivered in the University of Dublin, where, after and the decision must stand or fall on grounds of commenting on the many advantages an educated publie policy.
lawyer may confer upon society, either in his profesThe question is raised rather unfavourably for sional or social character, and the imperative neceshis Honour, inasmuch as his decision has reference sity of his having in either character a competent to a past transaction, and not to a future regulation. knowledge of the laws, which magisterially or judiIt is a removal from office for a cause which was cially he may be called upon to administer, says, not assigned at the date of the receiver’s appoint-" that from hence likewise abundantly appears the ment, and on account of which no exception was necessity of proper methods being laid out for the then taken.
study of the laws, and proper assistance being given The case is regarded with considerable interest to the youth intended for this profession. This was by the profession; the Law Society were desirous always allowed, and for this purpose were the Inns that the appeal should be made; and it is expected, of Court originally founded: and it must be owned whatever may be the decision of the Chancellor on that in ancient times they, in a great measure, anthe particular facts, that his judgment will affirm swered this end. Their exercises in those days were or disaffirm the general principles enunciated by not mere matter of form, but tests of the student's his Honour. A decision falling short of this will proficiency. Their leaders laid down in their lecbe productive of dissatisfaction, and an explicit tures the principles of particular parts of the law, expression of the eligibility, or the contrary, of a explained the difficulties, and reconciled their seemsolicitor for the office of a receiver, is, in fact, ing contradictions." essential to put an end to the unpleasant differences To this I would add the opinion of Lord of opinion, and practice occasioned by that differ- Brougham, whose continued zeal for the advanceence, which now prevail amongst the different ment of legal, as well as every other species of judges of the court.
education, must necessarily have led him to bestow The Masters in Chancery have declined to sub- much consideration on the subject. Speaking of scribe to the reasoning of the Master of the Rolls, the utility of lectures says: “ Although many men and continue to appoint solicitors receivers, and learn law very accurately and even profoundly by they are unanimously of opinion, that their discre- their own studies, they would learn it better, and tionary power should not be controlled. It is obvi- at all events they would learn it easier, and save ous that nothing can have a greater tendency to themselves a great deal of fruitless labour in its bring the administration of justice into disrepute, acquisition, if they had the benefit of a learned and than that the judges of the same court should differ skilful professor, accustomed to teach, and who on points regulating their practice. We shall recur was versed in the didactic art, which a person may to this important topic next week.
be very ignorant of, and yet be very well acquainted with the art he teaches." And in the pamphlet we
have adverted to, the learned author expresses himTo the Editor of the Irish Jurist. self, p. 12: “ The main object of legal education SIR,
ought to be to guide the young student through the A rumour of the foundation of lectureships labyrinth which the law presents to the uninitiated, for the advancement of legal education by our Irish and to establish legal principles systematically in Benchers of the Queen's Inns, which has been some the mind, to ground him as a lawyer in the knowtime gaining ground, but of the fulfilment of which ledge of principles, as distinguished from a mere I have been unable to discover any trace, has in- mechanical collector of cases.” duced me to address you, in the hope that a revival
These passages bring forcibly to the mind the of discussion on the subject might tend to carry this present state of legal education in this country as desirable object into effect.
contrasted with that of the English Inns of Court, That great advantages are open to the student if as described in the quotation first made by my he diligently attend to a well-considered course of Lord Coke, (pref. to 3rd Rep.); and at the prelectures upon any branch of jurisprudence is now sent day they have united for the purpose of fully placed beyond doubt by the unanimous testimony of carrying out this object. the several learned persons examined before a Com
At a conference of the deputations from the Committee of the House of Cominons on legal education. mittees of each of the Inns of Court, 3rd June, By the able pamphlet of a member of our Irish Bar,* 1846, the following propositions were agreed upon in a series of letters on legal education to George A. to be offered for adoption to their respective Inns. Hamilton, Esq. M. P., and the writer, if experience
† Joseph Napier, Esq. A. M., Q. C., M. P. H. H. Joy, Esq. Q. C.
“ That it is expedient to institute rewards, or principal obstacles to the transfer of land in Ireland? honours, or both, by way of encouragement to stu- - conceive the facility with which land can be dents who may be willing to undergo examinations. encumbered is one great obstacle to its sale and
“ That for the purpose of preparing the students transfer; and there are obstacles in the expenses for such examinations, there should be established caused by the sale, and matters of that kind ; but four lectureships in addition to that on Civil Law the great difficulty is the making out a title, not as and General Jurisprudence already established by regards the land, but as regards all the encumbran
. the Middle Temple.
cers, who must be satisfied. “ That the subjects of the additional lectures Is there any other difference than that which you should be :
have alluded to between the laws of England and “1. Constitutional Law, Criminal and other Ireland, which makes it more difficult to transfer Crown law.
property in Ireland than in England ? — The law in “ 2. The law of real property and conveyancing, Ireland which makes a judgment assignable bas devises and bequests.
that effect also, to a certain extent. A judgment “3. Those branches of the common law which is a very common security for a debt in Ireland
, are not included in the two last heads.
and a judgment affects all the property of which a " 4. Equitable Jurisprudence as administered in man is possessed at the time of the judgment, or the Court of Chancery.
which he may afterwards become entitled to; so “ That the lectureship for constitutional law, that if a man sells a small portion of his estate he criminal and other crown law, should be maintained cannot give a title to it, unless he discharges all his at the joint expense of the four societies.
judgment debts. The practice is to accompany “ That the lectureship for civil law and general | every mortgage with a bond in double the amount jurisprudence should be maintained as now, at the of the mortgage, and a warrant of attorney confesssole expense of the Middle Temple.
ing judgment is annexed to that bond. Where you “And that the other three lectureships should talk of a bond in Ireland, it almost always means a he maintained at the expense of the three other judgment; a judgment being so much a matter of societies respectively,—one for each as shall be course. hereafter arranged among themselves.
Mr. Bright.] I understood you to say, that a “That no examination should be required of any judgment which was upon the property of an india student as a condition precedent of his call to the Bar. vidual extended to the whole of his property, though
“ That every student should be required, as a that property might lie in the four provinces of Lrecondition precedent of his call to the Bar, to pro- land 2-Yes, it extends to the whole of his property, duce a certificate of his having attended two of the wherever it lies. I may give an instance of a gen. courses of lectures, the selection to be deterinined tleman who owes 5,0001. or 6,000l
. for judgment by himself.”
debts; if he has bought a house, for perhaps 8001, These suggestions appear mutatis mutandis, ad- and wants to sell it, he cannot sell it till he discharges mirably calculated to form the foundation of a plan all his judgment debts. for the guidance of our law authorities, assisted by Would you alter the law in that respect, so that the now experience of the English Benchers, who each judgment should not extend over more than have since brought them into operation. Taking the property described in it ?—I should make the them for the present as such, I propose, Sir, with judgment what it originally was, and give the party your permission, in my next letter to consider their holding that judgment no right to take execution propriety, and the manner in which they would be against any property after it had ceased to be the best carried out in detail. But the present season, property of the debtor, just as personal property is when every person, public and private, sole and cor- situated now. porate, is seeking out some means of testifying Mr. Fagan.] And leasehold property also ?their joy at the expected arrival of our gracious The late Act of Parliament has made leasehold proSovereign, to commemorate that event the present perty subject to judgments in the same way as freewould appear to be auspicious for their creation-holds; that is the Act which in Ireland we call that Sovereign herself being remarkable for her Chief Baron Pigot's Act. patronage of literature, and her skill in the fine arts;
Have you any other suggestion to make as to her consort read in the laws of England, and a the improvement in the law respecting the transfer bencher of Lincoln's Inn.
of property: what would be the precise condition
in which you would say the law should be?-I We purpose to give extracts from the evidence would have judgments placed in the same position given before the Committees of the Houses of Par- as they were in formerly; that the judgment creliament, appointed this session to enquire into the ditor should have the right of execution against all Poor Law, and the system of Receivers under the the property which the debtor had when be took Courts of Equity in Ireland, so far as such evi-out execution against him, but he should not have dence bears upon legal questions, and contemplated the right to disturb the possession of any purchaser changes in the law. We shall commence with those of real and personal property from his debtor ; and portions of the evidence which bear upon the law the judgment then would cease to be an encumof judgments.
brance. HOUSE OF COMMONS.
You say you would have judgments placed in Poor Law COMMITTEE.
the position in which they were formerly ; what Montifort Longfield, Esq., LL.D.-March 17. was that position ?- The change was gradual ; first Will you state to the Committee what are the ! The statute of elegit, as it is called, which was
passed in 13 Edward I., gave the creditor the right have already been submitted to Parliament, as far to proceed against the land of the debtor, and the as you have seen them, tend to prevent the recurjudges held that that meant the land which he had rence of the evils which are now complained of ?at the time of the judgment, or at any time after. None whatever. That was not productive of much mischief, because At this moment that we are inquiring is the evil the executions originally were only taken out within going on and accumulating throughont Ireland ?--a year. Afterwards the statute of scire facias It is going on, but not accumulating, for there is a enabled parties, by means of the writ called scire double process ; at one end selling estates to pay facias, to take out execution at any period ; and it encumbrances, and at the other end putting new was held that that incidentally gave the creditor encumbrances upon estates by other people ; you the right, by the doctrine of relation, to take execu- may for some years have one process going on a tion against any land which was in the possession little more rapidly than another, but it will come to of the debtor at any time after the judgment was its average again. had against him.
As the process is going on at both ends, can you Have you any suggestion to make as to changes see a prospect of the country being restored from in the law, by which the evils arising from the the condition in which it is now placed by those facility of encumbering land in Ireland should be evils ?—No, no prospect wbatever, except that remedied ?-I should reduce every mode of encum- arising from a hope and wish that the country may bering land to one mode of charging it, and I would amend. not permit more than one charge to be on the same Will you give the Committee your opinion as to denomination of land, and I would not permit any what is necessary to be done to check the growth of trusts of that charge to affect the owner of the those evils ?- To alter the law, so that a man who land. Let the trusts of the charge be a matter wants money beyond what his income will yield between the trustees and the cestuique trust, pre- him may find it cheaper to sell a portion of his cisely like what happens with regard to the funds estate than to encumber it; he will be pulled up now, where the Bank takes no notice of trusts, but much sooner when he sees the estate going from will do with the funds whatever the trustees desire. him than when he merely signs a few extra deeds, of
Then, in point of fact, you would assimilate in which perhaps he does not understand the full effect. that particular real property to the custom now Then I would have each encumbrance expressed in observed with regard to personal and funded pro- a particular form, specifying the land on which it perty ?-Yes; to the law as regards funded pro- is placed, like passing personal property; and I perty; it is not mere custom, but it is the law. would permit an encumbrance to be only upon one
Have you any other observation to make with denomination of land. My idea, then, is this, that regard to the working of this measure ? (Encum- a man who wanted money would mortgage, or bered Estates Bill).—No. I think the measure rather charge, (because I would put an end to will work very well, but it will be of very little use mortgage)--would charge the Blackacre with it, to Ireland unless accompanied with measures to and let the rest of his property remain untouched ; prevent the making of encumbrances that is now and if afterwards he wanted more money he would going on. There are some estates freed from en charge another portion with that, or he would incumbrances by sales under the Court of Chancery ; crease the charge upon the first property, still have but on the other hand, there is a constant system ing only one charge upon it ; if he wanted to sell any of putting on fresh encumbrances, and unless you portion of his property he might sell that portion, check the latter process, you will have Ireland in because there would be only one charge upon it, the same state as before.
and he would not be obliged to discharge all the Can you suggest any remedy for the present un encumbrances by which he was affected. certainty of title in Ireland ?--I do not think there When you speak of increasing the charge, do you is any considerable uncertainty of title in Ireland ; mean that you would not allow a man, having borI think a purchaser in Ireland can be as certain of rowed a thousand pounds from A on a certain prohis title as a purchaser can be in England; there perty, to borrow another thousand pounds from B is an expense in making out a title, owing to the on the same property ?-I would not allow it; let number of encumbrances, but there is no uncer- him go to Å and increase his charge upon that tainty of title.
property, or go and charge some other portion of Mr. Bright.] Do you know whether that is the his property to B, or sell another portion of land. opinion of English conveyancers with regard to I collected from you that you traced the evils of Irish titles ?—I do not; but I am sure that the Ireland, not exclusively to registration, but to regisEnglish conveyancers do not understand the matter; tration combined with the law of judgment credithey do not know the law in Ireland, and I do not tors ? --The law relating to judgment creditors I think they are competent to give an opinion upon think also a bad one, and that it contributes to inthe point; I never knew a title in Ireland shaken crease the encumbrances. in the slightest degree, except where there was Your great principle, as I collect it, is that the gross neglect on the part of the parchaser, and owner of a real estate should exercise the largest where proper searches would have shown that the possible power over it while he lives and enjoys it? person was not buying the property of the proper - Yes. person.
Is not this jealousy of yours with respect to You spoke just now of what was necessary to charging inconsistent with the exercise of the larprevent the accumulation of those difficulties in gest power, during life, by the owner?--I do not future: do you conceive that any measures which I think it is, for it relates merely to his power as be
tween two innocent parties, as between a purchaser Are you able, as a matter of legal history, to state and the encumbrancer. I would let him charge it that that alteration has been found in date simulta
. as against himself
, but I would not let him charge neous with the increase of encumbrances in Ireland it as against a purchaser from himself.
--No; I am not able to state that as a matter of Why are you jealous of his exercising a minor history. power, namely, of charging within the full extent Has the net of encumbrances been more widely of the value ? --Because I see the evils to which the spread, and more difficult of extrication within the exercise of that power leads, and because I see that last generation in Ireland ?--Within the last two it is a power which is naturally liable to abuse. generations ; I think so. I have seen many old
You have admitted that it is a restraint upon the conveyances, and old searches for title, and certainly right of property during the life of the owner, which they were not attended with the same difficulties restraint you think must be imposed for the public that more modern ones have been. good ?-It may be called a restraint during the life With regard to the operations of judgment, has of the owner, but I do not think it is; it is merely not the mischief of judgments been very much in
. limiting or pointing out the manner in which he can creased by what is called the Sheriff's or Receiver's raise money on his property; he ceases to be the Act of 1835 P-Very much; and still further in owner when he encumbers it. I merely say that he creased by what is called Pigot's Act. shall sell it instead of giving the party a charge on it. Do you think that the difference between the
As I understand you, you would have no portion operation of the laws in Scotland and in Ireland of his land, whether it be a field or a township, sub- might be explainable in this way, that the one rather jected to more than one charge ?-Yes, subject only encouraged the frailties of the people, and that in to one charge.
the other case those frailties did not exist ?-I think I collect that whatever may be done with regard that that accounts for a great deal of the difference
. to arrears of poor-rate, whatever may be done with Was not the extensive use of judgments in Ireland respect to marriage settlements, or even with respect caused by the inability of the Roman Catholics to to primogenitare, still you think the danger of accu- grant and receive mortgages ?-It has been somemulating incumbrances in Ireland would be left un- times attributed to that cause. touched, while assignable judgments with registra Do you attribute it to that cause ?-I do partly. tion continues ?-I think so.
Therefore the confusion in our titles has been What would be the effect of placing the law of caused in fact by penal laws ?-It has been increased debtor and creditor in Ireland, quoad judgments, by penal laws. exactly on the same footing as that upon which it stands in England ?-The law in England respect
Isaac Butt, Q.C., March 22, 1849. ing judgments has been altered within the last few Will you state your opinion upon the effect of years; and I do not think that you have had yet full judgments upon landed property 2 --I have a very experience of the mischief of the alteration. strong opinion that one of the greatest mischiefs
Has there been an alteration of the law of Eng- to landed property in Ireland, and which is in land assimilating the law, quoad judgments, to the a great degree the cause of its present embarlaw as it exists in Ireland ?-Yes; a judgment in rassed state, is, that judgments are common assuEngland is now a much more formidable lien on land rances in Ireland. The law in England and in than it was formerly.
Ireland with regard to judgments is exactly the Does it act to the full extent to which you have same, with one exception, which may perhaps gone in Ireland ?-It has gone to the full extent, ex. have caused the difference that exists between the cept being assignable; it is not assignable in England. two countries; and that is, that in Ireland the
Is that an important difference?-Yes; because judgment is assignable by law, in England it is not it makes a judgment a more convenient security, and assignable at law. By an Irish statute passed in therefore tends to produce the habit of accepting a the reign of Queen Anne, a judgment was made judgment as a security.
assignable at law; that is, if a party has a judg. And being assignable it supersedes the necessity ment against another, by an entry on the records of of holding the deeds ?-Yes.
the court he can assign that judgment to any perIn England no security is considered first-rate son. By this entry the assignee becomes the legal without the possession of the deeds ?
-That was the owner, and there is no other party upon the rocase; but I think it possible that a contrary babit cords of the court acknowledged as the owner. will grow in England if the law is left unaltered. And his interest may be sold ?-Yes ; I am dis
There have been two great alterations in the law posed to think that that statute was passed in conin Ireland with respect to judgments, have there sequence of what are called the Popery laws—the not?-Yes.
penal laws against Roman Catholics holding mortWhen did they take place?- Those two altera- gages. It had become the object both of the Protions, to which reference was made yesterday, are testant landed proprietors, and of Roman Catholics hardly to be called alterations at all; they were in who had money, to get a security upon land that the time of George the Third.
would be in the nature of a mortgage, and evade Nothing since then?_Nothing since then; they the law; and very probably the same circumstances were alterations ralating to scire facias.
have led to this, that now a judgment is a very There has been no alteration in the operation of common way of borrowing money in Ireland by a the law, particularly in Ireland with respect to judg- landed proprietor instead of mortgaging. ments ? - There is the one law, making them assign Does it not appear a very natural and proper able.
thing that judgments should be as assignable as What is the date of that?-I think ninth Geo. II. any other kind of property ?--It does; but I think
that anything is impolitic that gives a landed pro- in execution, or take his land in execution; but I prietor facilities for encumbering his estate; and I would not allow a judgment to subsist as an indethink the use which has been made of judgments finite charge upon his land. in that way, has led very much to the encumbering Sir J. Pakington.] Is that system carried to of land. There is this difference between judg- such an extent that an Irish proprietor would find ments and mortgages which must not be forgotten; a difficulty in raising money without a conjoint a judgment is a charge upon all the lands that a judgment ? - I do not think money would be lent man bas, and not only upon all the lands that he him without a conjoint judgment. If I myself were has, but upon all the lands that he may hereafter advising a lender, the common practice of the acquire ; so that if a man has estates in every country being that the lender should take the secounty in Ireland in small lots, the judgment is a curity of a judgment, I should advise him to require charge upon them; if he sells one of those estates that security to be given to him. he must sell it subject to the judgment; and if he Colonel Dunne.] The receivers are appointed purchases another estate in another county, that under the Pigot and O'Loghlen Acts ? -_Yes. other estate is also subject to the judgment. There Sir J. Graham.] Do I understand the effect of is, I can conceive, nothing more mischievous, and your evidence correctly, when I suppose that the more calculated to embarrass property than the encumbrance of the judgment or judgments is as it system of judgments in Ireland.
were concentrated in the present owner of the land, Sir J. Pakington.] Is not the unavoidable effect so that however small the sum for which a judgment to charge a judgment upon any species of property may run against him, he cannot part with any porthat a man has 2 - There is no provision of the law tion of his estate without clearing off that judgment which enables you to do that.
debt?- It is so. Mr. Bright.] Is it not usual in mortgages in Colonel Dunne.] The evil effects of that system England for parties to insert a variety of property, are increased by the recent Acts of O'Loghlen and far more than is necessary for the real security of Pigot ? -_-The act introduced by Sir M. O'Loghlen the mortgagee, for the purpose of making the se- enables a judgment creditor to obtain a receiver on curity still more secure? Does not the lender very petition over the lands of his debtor ; it did not frequently wish to include all the property of the enable him to sell his estate. A judgment creditor party to whom the money is lent? I should think could not then sell the estate of his debtor during not all; in practice it is not so; but very often his life. After the death of the debtor he had the where mortgage and judgment are collateral, as they power that any creditor, whether by judgment or generally are in Ireland, you find the judgment otherwise, had of filing a bill to administer the asaffecting a number of estates that are not included sets of his debtor, and if his personal property were in that mortgage.
insufficient to pay his debts the land he left would Has it not the effect of encumbering estates un- be sold. But an act introduced by the present necessarily, if adequate security can be given to the Chief Baron placed judgments on a totally different mortgagee by encambering only a portion of the footing. It made them actual charges upon the land, estate, instead of encumbering the whole of the equal in operation to a specific charge created by estate ?-Yes; and a judgment affects not only the deed. By the operation of that act a judgment estate which a man may have now, but any estate creditor can file a bill for the sale of his debtor's which he may at any period of his life hereafter estate in right of the charge it gives him upon his acquire.
land. I think the effect of this act has been to add Sir L. O`Brien.] What would you say if it were to the embarrassments of the landed interest ; it has limited to the estates a man had at the time of ob- multiplied suits and receivers; and I think that these taining judgment ?-I think that would be an im- suits, which may be called profligate suits, that is, provement; but having thought a good deal upon suits instituted for the sake of the costs, have been that subject, I would be strongly of opinion that in most instances instituted by the operation of this the best thing that could be done would be to act. Small judgments have been purchased up for abolish the law altogether, making judgments a the purpose of instituting a suit. Before the act charge upon landed property.
a judgment did not entitle the party owning it to Sir J. Pakington.] From what cause has arisen institute such a suit. that practice of granting judgments conjointly with Sir J. Graham.] You would revise the whole mortgages in Ireland, which is so different from the law of Ireland with respect to judgments ? I have system of raising money upon landed security in formed a very strong opinion, and I think upon England ?—It is a very singular thing, that with very good grounds, and with sufficient experience the law the same in the two countries, with the to enable me to form a judgment; I would not exception of the judgment being assignable in Ire- make a judgment a charge upon land. land, but not in England, this material difference And consequently the whole process of appointhas arisen ; and I trace it to the circumstance of ing receivers under judgments would fall with it? judgments being assignable in Ireland. The prac- Yes. And in causes I think the courts in Ireland tice originated, I think, in the penal laws. grant receivers with too much facility. Receivers
But you would abolish the system of judgment ? ought not to be appointed in cases in which the -I would abolish the law of making judgment a termination ought to be a speedy sale; and I think charge upon land, as it now is; I would allow a if some change were made in the Court of Chancery, landed proprietor to borrow money on judgment the effect of which would be to bring causes to a under the penalty, if he did not repay it, of having speedy termination, receivers in causes would die his creditor take him in execution, or take his goods away of themselves.