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There has been no classification of receivers in be looked upon as interested parties. Many of their matters and causes, but there can be no doubt that body are receivers ; whilst the present system lasts the number of the former largely preponderates, it would be impossible and impolitic (as we have more especially when the estates of minors and luna- shewn in our last number) to introduce an absolute tics are thrown into the scale, and the sojourn of rule of disqualification. Under the present system those estates will be for no brief period. It may solicitors who would not accept the appointment of still be predicated that it is much easier to get into receiver have more or less of patronage in the nomi. the Court of Chancery than it is to get out of it. nation to the office, and more especially to the lucra
We cannot, therefore, reasonably expect that tive one of solicitor for the receiver. there will be such a sensible reduction of property There is as much of gangrene in that department under courts of Equity, from the sale of present as in any other branch of the whole system; and incumbered estates, and the non-introduction of new if that post were abolished or rendered undesirable
, ones as to render an improvement in the receiver much of the stimulus to throw properties into the system on that ground unnecessary.
Court of Chancery, and to keep them there, would That gradually one-half of the present two mil- be removed. We impute no improper motives, we lions may be withdrawn, we believe probable; but merely look to those which must more or less ani. the utmost buoyancy of hope and confidence in the mate human nature, and sway human judgment
. revived energies of the country, does not enable us The document to which we have adverted contains to look forward to the time when much less than a hints that go a great way towards amelioration, but million a-year of income will be under receivers. they do not go far enough ; when the wound is se
We cannot believe that a much less expensive vere the surgeon's knife must go deep to effect a mode of managing that vast amount of property, cure. To adopt the idea of Sir Robert Peel, let us than the present cannot be devised.
take hope from the magnitude of the evil, its imporAnother reason against a change, which was not tance, its hold on public opinion has brought it to so clearly expressed, was the laudable objection to that point, that it can no longer be disregarded
. a system by which extensive patronage and jobbing might be introduced. The misfortune of this country being that every office is almost always jobbed ; | In the case of Kinnersley v. Knott, (13 Jar. 658, at present—to use the language of one of Sir James C.P.) the question arising on the 12th section of Graham's questions to Sir Edward Sugden—"the the 3 & 4 W. 4, c. 42, Eng, the 41st sect
. of the multiplication of receivers produces many little 3 & 4 Vic. c. 105, Ir., was raised and determined jobs ; but the concentration of them would produce whether in actions upon written instruments the great jobs."
description by an initial letter only, without any We should be reluctant to give power where averment of an excuse for not setting it forth fully
, there is not a rational expectation of its being wor- is a good cause of demurrer. The action was by thily used ; and we should prefer a small present the indorsee against the acceptor. The declaration evil, to increased government patronage ; but we stated that the plaintiff complained of John M. cannot, for an apprehension of this sort, allow a Knott, the acceptor's name, &c. The causes of gigantic evil to remain unredressed ; and we should demurrer assigned were that the Christian name of take care that whoever are to be the dispensers of the defendant was not fully stated; that he was patronage should be obliged to exercise it under described with the initial letter “ M.” for his Chris. responsibility, and the broad eye of public opinion. tian name, which should have been in full, or a suf
The Law Society states one of the excellences officient excuse for the omission. The court relying the present mode of management to be, that each on the cases of Nash v. Collins, (17 Law Jou. N. estate pays its own expenses ; and certainly that is S. C. P. 91, S. C. 5 C. B, 177,) and Miller v. Hay, an excellence ; but it might be added that it very |(12 Jur. 985, Ex.) held that the demurter was often pays nothing else. The carrying out of this good. Maule, J., in his judgment, says, “I think principle is costly that small estates are absorbed that the statute which enables an amendment of in the expenses of management.
the declaration to be made on summons, in lieu of We find on looking at the language used by the a plea of abatement for misnomer, assumes that Law Society that we did not express ourselves with when the court sees letters put as initials, and which half the clearness they have done on the point of cannot be sounded by themselves, it will treat them each estate supporting itself. We had better give as initials. The cases which have been decided their own words: “The present system secures the have recognised that principle, namely, they have important principle of making each state defray its decided that the party pleading must particularize own expenses of management, and no more!” What the name of the person described in such pleading, an important admission from men best capable of or give some reasou for not so doing. Where the forming a deliberate judgment !
initial is a vowel, the courts have, I think, rightly That respectable and useful body will excuse us been astute to understand it as the Christian name ; if we mingle a little playfulness (a characteristic of but when the initial letter is a consonant, it must, our Irish nature) with the discussion of a serious I think, be understood as an initial only of the question, it would be well if it had been discussed Christian name." calmly at all times and on all occasions.
The great practical importance of this case, We cannot allow ourselves to be too much in- arising from the great uncertainty in which the fluenced by the suggestions of the Society; it is im- law upon this subject has been thrown, has induced possible for human nature to be altogether disinte- us to bring the attention of the profession to it at rested, and, to some extent, the Law Society must I the earliest moment. For ourselves we do not, in
this respect, clearly see the soundness of the dis
HOUSE OF COMMONS. tinction between vowels and consonants. The letter «M." sounds iu our ears as like a surname as A.or I.
POOR LAW COMMITTEE. when standing alone; it is in the combination of letters only that vowels have a particular efficacy. How- James A. Lawson, Esq.--May 18. ever this case and Lomax V. Landells, (18 L. Jour.
(Continued from p. 308.) N. S. 88, C. P.) where the initial letter was “ I.," established the distinction.
9843. Sir J. Graham] Any search, however We believe that the Courts of Queen's Bench diligent, does not necessarily exhaust all encumand Exchequer in this country have taken different brances which may exist in Ireland ?— No, but then views of the question. The cases have not been a purchaser will take discharged of encumbrances reported, but there is a received impression among which are not registered. the profession, that under circumstances similar to 9844. Mr. Napier.] By registering his deed ?those in the case stated, the former court over- By registering his deed. A judgment creditor is ruled, the latter allowed, the demurrer. We hope not a purchaser. this case, in the decision of which the court appears
9846. Can you suggest any remedy for the pre. to have adopted the view taken in the majority of sent uncertainty of a good title to the purchaser?
the previous cases, will be adopted by the courts in I think that where a party purchases under the this country In questions of this nature, almost court, and where notice is given to all the persons purely practical, it is much more important that the who appear upon the registry, the form of which I law should be settled, than that the conclusion have suggested, that purchaser paying bis purchase arrived at should be the true one. If this be done, money into court should get a parliamentary title. the rule will be plain. If there be no Christian 9817. How do you think the purchase-money name whatever fully stated, and no excuse for the ought to be disposed of ?-I think, of course, that omission, whether the letter be vowel or consonant, in sales under the court it should be paid into the the declaration will be demurrable. Appleman v. Court of Chancery; then all the encumbrancers Blanche
, (14 M. & W. 155); Turner v. Fitt, (3 C. and the owners who claimed to be entitled to any B.701); Esdaile v. M Clean, (15 M. & W, 277); portion of that purchase-money should get it out of Ley v. Wilkes, and Gatty v. Webb, (9 Q. B. 427, court; but the purchaser should have nothing to 431.) If the defendant have two Christian names, do with that; he ought, the moment he pays his the first of which be fully set out, the second by the purchase-money, to get a good parliamentary title. initial letter alone, and that letter be a vowel, the 9890. Is it your opinion that the alterations court
, to use the language of Maule, J., “ will be which you have suggested, and which Dr. Longfield astute to understand it as the Christian name." has suggested, or alterations in that direction, are Lomas v. Landells, (18 Law Jour. N. S. C. P. 88.) calculated to give great relief to proprietors in But if the letter before the surname be a consonant, many cases, and to place all classes depending upon the declaration will be bad on demurrer. Kin- the land in a more independent, and comfortable, nersley v. Knott, (13 Jur. 658); Nosh v. Collier, and safe position than they are at present?—I think (17 Law. Jour. N. S. C. P. 91); Miller v. Hay, they are ; they must inevitably have that tendency. (12 Jur. 985.) The only other question that could There was one suggestion which Dr. Longfield be raised would be whether this rule applies as made-namely, that of preventing parties from well to parties named in the record, but not parties creating encumbrances ; I do not acquiesce in that ; to the suit. This, we think, must necessarily fol. I do not think it would be practicable to prevent low the same rule; before the statute the rule of parties from creating encumbrances, because, allaw required the names of such persons to be fully though you may prevent them by law from making given, or an excuse for the omission—(Plow. 128; a second mortgage, they may create annuities, rentStephen on Pleading, 1 Ed. 320)—and the statute charges, and various other encumbrances, therefore raises no ground for the distinction. The words I think that it would be found impracticable; but are, " that in all actions upon bills of exchange or what I have suggested would give them increased promissory notes, or other written instruments, any facilities for selling portions of their estates ; and of the parties to which are designated by the initial consequently, as parties will always act for their letter, or letters, or some contraction of the Chris. own interest, if it were for their own interest to sell tian name, it shall be sufficient so to designate portions of their estates in order to raise the money, them."
rather than to create encumbrances, the effect must be to diminish the number of encumbrances created.
9892. Then you would give him the greatest
possible facility of borrowing money, or lending The Right Honorable John Richards, Third Baron money, or buying estates, or selling estates ?-I of Her Majesty's Court of Exchequer ; Montifort certainly would ; it may be very desirable for a Longfield, Esq., Q.C., LL.D., and C.J. Hargreave, party to purchase an estate, and it inay be very Esq. Barrister-at-law, 65, Chancery.lane, have been desirable for a party to raise money for the purpose appointed the Commissioners for the sale of encum- of improving that estate; I do not see why he bered estates in Ireland.
should be prevented from doing that ; I think as he has the power of selling, he ought to have all the lesser powers of charging and encumbering.
in Ireland, considered the common assurance of the Sir Edward B. Sugden, June 21, 1849. country, and where receivers cannot be obtained 416. During the time that you were Lord. Chan; upon judgments as they can be in Ireland, upon cellor of Ireland, was your attention much directed petition, I introduced a clause, which was passed, to the management of estates under the Court of that every judgment in England, and every Crow Chancery ?-My attention was very much directed bond also, should be registered every five years if to the operation of judgments, and also to the opera- it was intended to operate against purchasers and tion of receivers under judgments, and generally to mortgagees or creditors. That lessened the evil in the management of estates under the Court of Chan- this country very much ; instead of having to go cery
back for many years, and having to search in a 417. You introduced a good many important dozen different courts, you go into one court and changes in the proceedings of the Court ?-Yes, I pay half-a-crown for searching one book which did. The second time, when I went to Ireland, I contains all the registers.
When I returned to found judgments very much increasing in number, Ireland my desire was to assimilate the law in Ire. and of course that had been occasioned by the Sher- land to the law in England, and believing this lax iffs' Act; and the question arose, which it was neces- to be even more necessary in Ireland than it was in sary to decide, whether it was necessary to make England, I prepared a bill of the same nature as every judgment creditor a party to a suit in relation the bill which had been passed with reference to the sale of the estate.
the estate. As that was a question of England, applying it to Ireland, and introducing very great importance to Ireland, I begged to have the same clause requiring re-registration every five the assistance of the then Lord Chief Justice, and
years. There was a convulsion almost in the the then Master of the Rolls; and the question was country; the solicitors in a body resisted the mea. fully argued, and they delivered their opinion in sure, and prevailed upon their clients to believe open Court, in which I concurred with them, that that it was a great infringement upon their rights every judgment creditor was a necessary party to and would be the destruction of securities in Ire such a suit. The consequence of that was truly land; the bill came as far as the House of Com. alarming, and therefore I immediately, with the con- mons, and then I was under the necessity of giving currence of the Master of the Rolls, introduced a it up. I subsequently got a similar bill passed new rule, which very much lessened the evil, by without that clause, but with a mitigated classe rendering it not necessary, except under peculiar that parties should register every 20 years ; so that circumstances, to make all the judgment creditors in Ireland, where the evil is far greater
, forty-fold parties to such a suit.
probably greater than it is in England, parties may 418. You are aware of the Act of Parliament keep their judgments alive, without taking any which we call the O'Loghlen Act, which gave the step to indicate their intention to enforce them power to the Court, on the application of a judg- against purchasers and mortgagees or creditors, for ment creditor, to appoint a receiver over a property? 20 years. In England nobody objected to being -Yes.
put under re-registration every five years. Where 419. Do you consider that, under the true con- a party has been paid off, or his claim has been struction of that Act, it was imperative upon the satisfied, and he does not desire a lien against the Court, on the application of a judgment creditor, estate, he does not re-register; but if the party wishes to grant a receiver ? Certainly; the Lord Chan. to bind a purchaser, he ought to show, by re-regiscellor makes conditional orders for receivers; he tering his judgment, that he wishes to keep it alive has no power except ministerial, and every morning, as a lien still existing ; and in England, as I have when I was Lord Chancellor, I signed conditional already mentioned, the parties re-register every orders for receivers upon statements properly veri- five years. fied by affidavits; the Chancellor has no power 422. Sir J. Graham.] Sir Michael O'Loghlen's whatever to withhold the receiver ; it goes as of Act, with regard to judgments in Ireland, is not ebe
only legislative enactment which has recently passed 420. It was in the nature, in fact, of a statutory upon the subject ; we have heard of Mr. Pigot's execution ?-Undoubtedly; it was in lieu of the old act ; did not that act extend the operation of the remedy, very much enlarged, and I was going to law of judgments in Ireland ?-Tbat act was, in say, very unwisely accelerated.
point of fact, nearly a copy of the English act of 421. Do you conceive that the operation of that the 1st & 2nd. of the Queen, which had extended Act in compelling the Court to grant receivers in very largely the operation of judgments; their cases of judgments was injurious to the public inte operation was extended from the moiety of the rests ?-I never had the least doubt of it, and I did estate to the entirety of the estate, and their bindall I could to correct the evil arising out of the ing power was also extended to many descriptions multiplicity of judgments ; for example, when in of property which never before that act could have this country I was instrumental to the passing of the been reached by a judgment; but so far as the Act of Parliament which brought together for the Legislature gave additional privileges to the judg. first time into one office, the Queen's Bench Office, ment creditor, the wording of the act made it ne all judgments of every sort, crown debts, lis pendens cessary to go into equity to give it effect in many and other things; instead of having to search in a But the act very unwisely, I think, declared number of different offices, I brought all the judg- that every judgment creditor should be considered ments, &c., into one office, and a small fee was to have a charge precisely the same as if the per: paid ; that is in full operation now. And with son against whom the judgment was recovered had reference to England, where judgments are not as 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 security 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 427. Have you ever considered the question to the power in the Sheriff's act to appoint receivers whether the penal laws as existing in Ireland, with on behalf of judgment creditors, but it extended respect to real property, and the restricted rights that power to all the additional properties which of real property as originally enjoyed by members had been included in the English act, and in like of the Roman Catholic religion, accelerated the manner in this Irish act; aud rather inconsistently action of judgments and that particular mode of I must say, the framers introduced the clause post: obtaining security P—I do not apprehend they did, poning the right for a year, which is in the English but I do not mean to speak with any confidence act. Now under the English act, where a judg. upon that point. ment creditor could not obtain a receiver by petition 428. Whatever may have been the cause, the and where this new power could not be exercised fact still remains, that practically judgments have except after a year, it was evidently intended to been used from early times much more extensively give the landowner a little time to look round him, in Ireland than in England ?---Yes, so as to be and to prevent butchers and bakers from snatching considered in their own expression, a common asa judgment and fixing it upon the estate ; but in surance of the country. Ireland it would scarcely have any operation, be- 429. Are judgments assignable in England as cause the Sheriffs' act had already given the power they are in Ireland ?—Certainly not ; they are asover the whole property. It was before liable, and signable undoubtedly, but the assignment has not a a judgment creditor could, notwithstanding the legal operation. In Ireland judgments were made late act
, obtain a receiver in a very short time. It assignable as early as the act of the 9th of George was, therefore, of very little importance in Ireland, the 2d. One object evidently of that act was to though of very great importance in the English secure purchasers, for the act recites that it was act.
common to assign judgments upon purchases. If 423. Leasehold property, which is very extensive you bought an estate, you would take an assignin Ireland, especially collegiate and chapter pro- ment of the judgment against that estate in order perty, until the passing of Mr. Pigot's act, did not to secure you, and you would have the legal interfall under the operation of the law of judgment est by such an assignment ; the assignee under creditors ?-_Yes, all leasehold estates were bound that act and the later act of the 25th of the same by judgments before Mr. Pigot's act; a fieri facias King, is placed in the same situation exactly as the would issue against them on judgments.
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’Löghlen's act judicious. lic good in your opinion in favour of the law in Do you entertain the same opinion conjointly with Ireland as it stands, or in favour of the law of Engthat act of the provisions of Mr. Pigot's act ?-1 land with respect to judgments ?- If I were to anthink that taking that law as it now stands in Ire- swer that as an abstract question, I should say that land, it is mischievous to everybody. It leads to the rule in Ireland is the right one under which the rapid accumulation of judgments on estates, you may legally dispose of your whole beneficial which are created as permanent debts, and for interest in the property ; it is only by a strictness which receivers may be obtained at once; and these of the old law that you are prevented from exercharges prevent the owner from selling his estate cising the usual rights of property over that subto advantage, and constantly occasions litigation, ject; and therefore as an abstract question, I should with heary costs.
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 OʻLoghlen's and Mr. Pigot's acts conjointly ?-I do interest in Ireland. not apprehend that there is any difference as to 432. We have been told, that for small debts the property which they bind ; the question is not due to tradesmen, it is a growing practice in Ireto the extent of the right to bind any species of land to give judgments ?-Not only at this time, property, but the difficulty arises from different but when I was in Ireland, it gave me pain to disremedies being given in the two cases.
cover that practice. I had every day to make a 426. Practically, judgments are in much more good many orders in chamber ; I believe I may safely say that I had hardly ever occasion to sign executed a deed of a peculiar nature; for you can petitions which did not include petitions for receivers never keep people out of the Register Office. I upon judgments, and for the smallest sums. used to be said that people would not go there;
433. Though the law of England, as extended, Do they, it was asked, go as to wills ? We find that is very similar to the law of Ireland, the practice they do go as to wills; one reads every week in under it has not arisen to the extent, or anything the newspapers the gifts by will of men of whom like the extent, that prevails in Ireland ?--Certainly you have heard, and of whom you have not heard, not. I am not aware of there being any evil arising if they happened to have any property. And that out the law in England. Perhaps I may be allowed would be the case with deeds, if you gave them in to observe that the truth is, some of the landed full to the registry: their contents would be fur. proprietors in Ireland require a little protection, nished ready for every body's breakfast table in the they are so careless about their property and their morning. The Registration Act has not the
op money. Before I left Ireland one or two instances eration which people think it has ; the Registra
. struck me very much. Under the tithe commuta- tion Act never comes into operation till there is a tion act the court appoints a receiver (if the occu- conflict between bona fide parties, of whom the one pier is not liable to the payment), if the tithe rent- must suffer. It has not the merit, except indirectly, charge is 31 days in arrear. I have, as Chancellor, of saving any body; but if a man has notice of signed orders for receivers under that act, in one registered deed he is bound by it, but if a person case for £4, and in another case for £5 only; it is has not registered his deed, though it may be by a sort of insanity on the part of the owner ; for the the carelessness of the attorney, (I have known moment that order is signed it entails an expense cases in the course of my experience, in which of £30 or £40 for putting a receiver upon the pro- attorneys' clerks have put the fees in their pockets perty for a debt of £5.
and have not registered deeds at all, though they 435. On the whole, do you approve of that have been regularly charged for), the man's estate principle, that the judgment shall not attach to any may be lost. A general register would not inparticular portion of the property, but that it shall prove any man's title to his estate, but I will not over-ride the whole, however small the amount of enter further into that. But in answer to your the judgment may be ?-I think it is too late to question, I should say that if you are to consider it alter the law of England as to judgmen's, where it an evil that the owner may encumber his property has been carried so far. I think as the law stood to the whole extent of its value, then of course the before the 1st and 2nd of the Queen, the law of more you enable a man to make a good title, the England intended to affect only a portion of the more surely you lead to that conclusion ; but the property, for it gave execution only against the same thing that would enable him to encumber the moiety; and the legislature have gone on extend- estate, would enable him to sell it if the rules were ing it not wisely, I think ; but still you cannot now properly carried out ; however, as the law stands, alter the law of England as regards the general I think that judgments in Ireland have the operaoperation ; the 2nd of the Queen requiring a regis- tion represented to the committee. tration in the first instance, and a registration 437. You stated that the owners of real proevery five years, reduces to nothing the danger to perly in Ireland, from the peculiar circumstances purchasers, mortgagees and creditors, which is one of the country, should, as far as possible
, by law great point to look to.
be guarded from their own improvidence; the ques436. It has been represented to the committee tion I put was, considering the practice in England that the operation of the registration of judgments as to charging land, which is generally by mortis this: that it gives facilities to owners of real gage, attended with peculiar difficulties; and conproperty in borrowing, and makes judgments a sidering the facility that exists in Ireland for valid security almost up to the full amount of the charging land by means of assigning judgments, property; while it is a great impediment to the whether the policy of the law in Ireland does not sale of the property ; is that your view of the rather contravene that which you believe is desir
. operation of the registration ?-You are asking me able as a protection against the improvidence of a question of great extent. Many people think, and owners ?-My answer to that is, I think it does. I myself have thought, that as far as regarded 438. You have said that, whether wisely or not, judgments and Crown debts, and lis pendens, that we have gone too far in establishing the effects of it is necessary to have a register to secure purchas- judgments in both countries to recede. Having ers. I am responsible for that Act; but I have given that answer generally, what would you say always opposed a general register, for very differ- to a reversion of the law in Ireland, especially with ent reasons; I think it would be a great expense respect to judgments being made assignable, and imposed upon the country. If country gentlemen the effect of Sir Michael O’Loghlen's Act more would estimate what it would cost for a year, I particularly? I think it would not be advisable to think they would find that it is an immense burden take away the power of assigning judgments
, imposed upon the public for which there is no though it may be open to abuse, because now corresponding benefit. I hear it said, “Go and judgments have become almost as universal as bills register in full.” That is not the evil, there has of exchange. I can imagine now a small trades. never been any want of knowledge of the contents man getting a judgment for a mere household debt, where there is a register. The Registration Act and then assiguing it to another person in order to goes upon a very different principle ; that is, not avoid the odium of getting a receiver over his custo disclose more than is necessary, and not to tell tomer's property. I think that not at all desirable, to the whole world all my concerns, because I have but that is the custom of the country generally