and those alterations are the mildest that you think are indispensable?—Yes.

595. Time may show that rather stronger measures are necessary?—Yes.

596. But you recommend the alterations which you have suggested to be tried in the first instance? -Yes; and if I found the evil was not cured by them, it would be time to see whether you would strike at the receiver on petitions, or leave every thing as it stood. The Sheriff's Act not only extended this remedy over the whole estate, but gave extraordinary power besides.

property over which the receiver is appointed is very
inconsiderable. I can give two examples, which
occurred before me in the present sittings. In one
case, (and I have brought over a copy of the peti
tion for the Committee,) there was an application
to extend the receiver, and if you add the costs at
law and the costs in equity, the debt being £5 88,
you find a most enormous disproportion between the
debt and the costs.
The judgment was for more
than £5, because it included the costs at law; but
the petition stated that the debt was £5 8s. The
other case was an application to continue the pro-
ceedings under the provisions of Sir M. O'Loghlen's
act, which, by the death of one of the parties, it
became necessary to continue.
The property was
£10 a-year; and I need scarcely say

that appoint

597. Sir R. Peel] Anticipating for the sake of argument a failure of the measures which you now suggest, can you state what are the other measures which you would in that case suggest?-No, I have not thought of anything beyond; I should like to seeing a receiver, either with respect to a debt of only what the evil was before I addressed myself to the £5, which was one of the cases which was moved consideration of what would or would not be the before me this term, or with respect to property worth £10 a-year, must work most oppressively.

cure.

598. Sir J. Graham.] You have mentioned incidentally what would be a stronger measure, namely, the abolition in all cases of receivers on petition?— Yes.

599. But you would not think it wise to go that length at once?-No; I should think it would be too strong a measure.

be right,

947. Sir R. Peel.] Can you give the whole his tory of the £5 case?-I directed the registrar to give me a copy of the proceedings in that case, which I have brought with me. It may however, to say, in justification of the petitioner, that he had thought it right, on account of the small amount, to resort in the first instance to another mode of recovering the debt, and had failed in that; the registrar at the same time to furnish me with but I only give the case as au example; and I got what he believed would be the costs in equity of exdifficult, considering the very small remuneration tending the receiver. Now, in these cases it is very which the receiver obtains, to get proper persons to be receivers. But the second cause which leads to improper persons being appointed receivers over property, and which applies to every class of property, is, that the solicitor for the petitioner or plaintiff has, in my opinion, a direct interest in nominat

Right Hon. T. B. C. Smith.—June 28. 945. Will you state to the Committee what you think the prominent evils connected with the system of the management of estates under creditors' receivers ?-The mode in which the receiver is appointed is this: an order of reference is made to the Master to appoint a receiver, either upon a decree or upon motion in a cause, or upon petition under some of the statutes in force in Ireland; when the order is made, the solicitor who has the carriage of the proceedings, who is usually the solicitor for the plaintiff or petitioner, lodges an attested copying an unfit person. of the decree or order in the Master's office, to whom the reference is made, and a summons is 948. Will you explain to the Committee in what issued for some particular day, as I understand, and having a fit and proper person appointed receiver? manner the solicitor would have an interest in not the Master directs who shall get notice of the pro-If he was to appoint a completely independent ceedings; however, practically, as I understand, the solicitor for the plaintiff or petitioner is the only person who attends. I am speaking now of the majority of cases; he proposes to the Master some person to be appointed receiver, and I believe it would appear, if returns were called for, that in the vast majority of cases the person so proposed as receiver is the person appointed. I think that system has led to most injurious results, and I think it has led to the appointment of a very improper class of

persons as receivers.

946. The multiplication of receivers so selected must act very injuriously upon the general interests of the country?—I think so. It would be well that I should explain to the Committee why it is that, in my opinion, improper persons are appointed as receivers. In the first place, it frequently happens that in petitions under Sir Michael O'Loghlen's act, and Mr. Pigot's act, the judgment is for a very inconsiderable amount; if that be so, of course the receiver is appointed over a very small portion of the property; but it sometimes happens, without regard to the amount due on the judgment, that the

person, in all probability he would have no legal profit on the transaction; that independent person so appointed would either select his own solicitor, or would endeavour to manage the property in such a manner as to incur as little legal expense as pos sible: whereas the plaintiff's solicitor has a direct interest in appointing some person who will be a complete tool in his hands.

judgments in Ireland as contradistinguished from the 957. Have you traced the origin of the law of the penal laws of Ireland?-My attention has not law of judgments in England to any connexion with been called to that. I think there was a case relat ing to that point before Lord Redesdale, which is reported in Schoales and Lefroy, I speak from mesince I was called to the bar. I believe judgments mory, the popery laws not having been in force obtained by Roman Catholics were not within the popery laws, save that the amount could not be recovered by elegit; but I wish it to be understood that I am speaking from a vague recollection.

958. The penal laws in Ireland affected the title

of land as enjoyed by Roman Catholics?-No doubt they did.

959. But judgments, when held by Roman Catholics, were an available security to their full extent without regard to creed?—I do not know that, I shall look in the House of Lord's Library, at the rising of the Committee to-day, for the case I have mentioned; [see O'Fallon v. Dillon, (2 Schoales & Lefroy, 21,) and Read v. Aylmer, (Howard's Popery Cases, 80,)] but as this question has never arisen since I was called to the bar I am not familiar with

it.

961. Do you believe that the effect of the conjoint operation of Sir Michael O'Loghlen's act and Mr. Pigot's act has been advantageous or not? That is a difficult question to answer; they have produced evil effects, no doubt; but Sir Michael O'Loghlen's act was introduced with a view to remedy a greater evil. If the Committee would wish to know the cause of the introduction of Sir Michael O'Loghlen's act I think I can refer them to a document which explains it. I cannot give the exact date of the report, but several years ago there was a commission to certain gentlemen to inquire into the proceedings of courts of justice in Ireland. One of their reports related to the mode of levying the amount of a judgment by a custodiam proceeding and outlawry, but the remedy by outlawry and custodiam was so oppressive that I believe it was that circumstance which induced Sir Michael O'Loghleu to bring in

his measure.

964. Do you think that giving the right on the part of the judgment creditor to obtain the appointment of a receiver, considering the extent to which that right has been pushed, has been advantageous or otherwise?—I should say that it has been disadvantageous in this way. I am quite sure that there are a greater number of judgments affecting land in Ireland now, than there would have been if Sir Michael O'Loghlen's act had never passed.

could have been made available. Sir Michael O'Loghlen at the Rolls gave a more extended construction to the act, and considered that it authorised the appointment of receivers over an equity of redemption, or over terms for years. He so expressed his opinion; and the effect of the amendment of Sir Michael O'Loghlen's act by Mr. Pigot's act, was in fact to extend the remedy under Sir Michael O'Loghlen's act to those cases in which the Court of Exchequer had given a limited construction to the statute.

970. Then the conjoint effect of those acts has been to render a much larger surface of the whole of Ireland liable to management under the Court? Certainly.

971. And you have already said, that with respect to the appointment of receivers, the system is not satisfactory, in your opinion ?—It is not.

972. Therefore if the evils of the appointment of receivers remain unchanged, the effect must be very injurious to the cultivation and the management of property in Ireland?—I think it must. 985. As relates to the public good, the effect of judgments remaining unchanged in Ireland, and the power of appointing receivers still remaining unchanged, would there not be an advantage to the public in having only one jurisdiction by which receivers could be appointed ?—I think so; if the Court of Chancery was capable of doing the whole equity business of the country, it would be better to have only one equity jurisdiction. I had returns made to myself of the business done at the Rolls in the last nine or ten years; I could not lay my hands upon the returns previous to the last two years, but I have the latter with me, and when I rise from the present sittings, the number of orders which I shall have made for one year from the first day of Michaelmas Term, will be about 4,700, and the number in Sir Michael O'Loghlen's time did not, I believe, amount in any one year to 3,000.

990. Since the passing of Mr. Pigot's act, tenants under long leases may obtain loans upon judgments, with all the law of judgments affecting those long leases ?-No doubt they may.

965 Has the power of judgments, as affecting all property in the possession of the debtor, or to be acquired by the debtor, been enlarged to that extent by recent enactment?—Yes; Mr. Pigot's act introduced a clause independent of the clause 991. Do you think that it is politic in the present which was contained in Sir Michael O'Loghlen's circumstances of Ireland, to extend the leasing act, and the clause which was so introduced into power of tenants for life?—That is a very large Mr. Pigot's act, irrespective of Sir Michael O'Logh-question, which I do not know that I have consilen's act, was in fact copied from a recent act re- dered very much. lating to England; the clause which authorises you to take the entire of the land of a debtor under an elegit instead of a moiety was copied from a clause in the English act.

969. Then the extended effect of judgments in Ireland under Mr. Pigot's act, as contrasted with England, has arisen from the circumstance of the power of appointing receivers existing in Ireland ? -Yes; Sir Michael O'Loghlen's act gave for the first time the power of appointing receivers to the petitioner who either had sued out an elegit, or was entitled to sue out an elegit, and the receiver was not to be over the moiety, but over the entirety if necessary. There was a conflict of decision upon the construction of that act, between the Court of Chancery and the Court of Exchequer; the Court of Exchequer applying a strict construction, and only appointing a receiver in cases where the elegit

992. But it has a bearing upon the question of judgments and receivers: for as you extend the leasing power, you extend also the liability of the property so leased to judgments, with the appointment of receivers; do you not? Of course all leasehold property is subject to the operation of Sir Michael O'Loghlen's act.

993. By splitting the reversion, and by multiplying middlemen, you subject the same farm, the same corpus, to various judgments, and with various judgments to the appointment of different receivers over it? No doubt; and there are cases in which there is a receiver over the middleman's interest and over the landlord's interest at the same time.

994. As you multiply leases, and as you split the reversion, under the operation Mr. Pigot's act and the Sheriffs' act conjointly, you render more and more of the property of Ireland subject to the

effect of judgments, and to the consequent appoint- to judgments in Ireland being no longer assignment of receivers ?—I think you do. able?I read it hastily.

995. Then if that be an evil, has it not been the tendency of legislation to increase and aggravate the evil?-Certainly. If you authorise a tenant for life to make long leases, there is no doubt that that leasehold interest becomes subject to a receiver; but I feel some difficulty in stating how that exactly bears upon the consideration of the question. 996. If you were to increase the power of the tenant for life to grant leases, would it not be politic, conjointly with that power so about to be granted, to look at the operation of Mr. Pigot's act and the Sheriffs' act, with the view of checking the obtain ing of judgments and receivers as affecting property of small amounts?—I think it might. I think myself that it was very questionable whether subjecting terms for years to judgments was a beneficial alteration of the law.

(To be continued.)

CHANCERY.

Walter Humphreys, Plaintiff. PURSUANT to the Decree

John Bowen, the younger,

made in this Cause, bearing date the 10th day of May, 1819, I hereby require all persons having Charges or Incum.

and others, Defendants. brances affecting the Annuity of £300 per annum, and the other here. ditaments comprised in the Indenture of the 19th of May, 1817, in the pleadings mentioned, to come in before me, at my Chambers, Inns Quas City of Dublin, on or before the 22nd day of October next, and prove same, otherwise they will be precluded the benefit of said Decree. Dated this 4th day of August, 1819. E. LITTON.

A

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997. Looking at the present state of Ireland, with judgments the common assurance of the country, and the extended use which is now made of that mode of obtaining credit, would you think it prudent at once prospectively to put an end to judgments with the power of appointing receivers? -That is a question of very great difficulty. I apprehend that you must give the judgment creditor some remedy against the land; but the great difficulty of dealing with the question, is to determine which is the least oppressive mode of levying the debt out of the land. The oppression which outlawry proceedings led to, and which was the origin of Sir Michael O'Loghlen's act, is detailed very clearly in the report to which I have referred. If you were to repeal both the statutes, no doubt it would get property out of Chancery to a certain extent, or rather it would prevent property getting into the Court of Chancery, but you would still leave the debtor open to a proceeding by elegit; and it is right that the Committee should understand that the proceeding by elegit will of necessity lead to difficulty. I shall endeavour to explain how an elegit proceeding would lead to difficulty. Suppose there is a tenant in possession of lands and a judg ment against his landlord, if his lease bears date subsequent to the date of the judgment, the creditor A TREATISE ON THE LAW OF EVIDENCE,

may issue an elegit; he may have an inquisition in the ordinary way, and a finding upon that; and upon that inquisition he may serve, an ejectment on the tenant, and turn the tenant out of possession altogether. If the judgment is subsequent to the date of the lease, he cannot turn the tenant out of possession, but the judgment creditor, by the operation of the inquisition, is regarded as in the nature of the assignee of the reversion; he stands in the shoes of the landlord-and the difficulty is this: one judgment creditor having proceeded and attached the rent, may be dispossessed by a prior judgment creditor, and that prior judgment creditor may be dispossessed by another prior judgment creditor; and in this way the unfortunate tenant in possession may suffer very nearly as much by that elegit proceeding as he suffers at present by a proceeding by a receiver; the difficulty is, whichever way you turn it is only a choice of evils.

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AUGUST 25, 1849.

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:

tiff's own demand, or, as often happens, his entire claim should not be paid, it would be rendered still more deficient if to that claim were added the costs of puisne incumbrancers, which never could have been paid if the suit had gone to a hearing.

able out of the fund; on appeal this order was set aside, and the Lord Chancellor held that the plaintiff should forthwith pay them. This case, however, would seem not to be an authority, for these defendants were prior incumbrancers, and the plaintiff when filing his bill must have been aware that they In Levinge v. De Montmorency, (1 Irish Jurist, were entitled to be redeemed, and it is on that 251,) the Court of Exchequer, upon full argument ground Lord Manners based his decision when he and having all the cases before it, came to a consays, "The rule that the fund and not the plaintiff clusion which supports the view we have here taken. is to pay the costs only applies to formal parties, A bill had been filed in that court, and a decree not to prior incumbrancers, as to them it is a redemp-to account pronounced. Subsequent to the institu tion bill." This case, though cited by the Master of the Rolls in Croker v. Copley as shewing that a plaintiff is personally liable, distinctly lays down that the costs of formal parties, not prior incumbrancers, are to be paid out of the fund. And it does not appear to us that this learned judge would have sanctioned the practice which now prevails, by which all costs, whether of prior or subsequent incumbran-order was made in the Rolls for taxation of the cers, formal or other parties, are to be paid by the plaintiff in a stayed suit, although he may not have any other property whatever beyond the subjectmatter of the suit.

tion of the suit, but before the decree, a bill was
filed in the Court of Chancery by two of the de-
fendants in the Exchequer cause.
After the de-
cree an order was made in the Exchequer restrain
ing the plaintiffs from proceeding in Chancery,
giving them liberty to come in and prove their de
mand in the Exchequer; subsequent to this, an

costs of a defendant in the Chancery cause, these
costs were paid by the plaintiff in the stayed suit,
who applied to the Court of Exchequer to be
repaid by the receiver. Baron Pennefather in

In O'Keefe v. Holmes, (1 Irish Jurist, 78,) a de-giving judgment said:" The present motion is, fendant in a stayed suit applied that the plaintiff that the costs to which the plaintiff in the Chancery might pay his costs; counsel for the plaintiff insisted cause is liable, should be paid in the first instance, very strongly upon the great hardship of compelling by the receiver out of the funds collected by the the plaintiff to pay these costs before the funds were receiver, or that the defendants in the Chancery realized, as she had very little property except the cause be restrained from taking proceedings against subject-matter of the cause. The Master of the Rolls, the plaintiff in the stayed cause on their demand however, was of opinion that although there might for costs against him. In justice, it would appear be hardship in the case he was bound by the deci- that the plaintiff in the Chancery cause who is resion in Loftie v. Forbes, and that it was desirable strained from proceeding there by the order of this not to break in on a rule which tends to check the court, is substantially entitled to relief in one or institution of several suits. If that was the only other of the shapes in which he seeks it." And his effect of the rule, and if it worked only to the pre- Lordship referred to the manuscript note of Loftie judice of plaintiff's who-a suit being already in pro- v. Forbes by Sir M. O'Loghlin. Baron Pennegress in which they could obtain full relief-com- father also said:" As tothe costs of prior creditors mence another for the mere purpose of onerating whom the plaintiff brings before the court in the the estate with costs, we would be sorry to see it Chancery cause, he is undoubtedly liable in the event relaxed in the slightest degree; but when, as we of a deficient fund." "With regard to subsequent have already shewn, it may injure the bonâ fide creditors they must get their costs in the same pri plaintiff, perhaps the first to take proceedings forority as their demands. The costs of puisne creditors the recovery of a fair demand, there we certainly think the rule should be relaxed.

are not to be put out of their proper priority." It appears to us that the rule as laid down in that case is calculated to work fairly and justly and does not expose to utter ruin a plaintiff who, as we have shown, may have acted with the most perfect good faith, and without the slightest intention of instituting oppressive or unnecessary proceedings.

SIR,

To the Editor of the Irish Jurist.

The case of O'Keefe v. Holmes was again considered before the Lord Chancellor on appeal, who affirmed the order of the Rolls. In the same case (reported 1 Irish Jurist, 162,) an application was made by the plaintiff that the costs of the defendant, which he had been ordered to pay, should be paid to him by the receiver, and it was held that the plaintiff, who was a puisne incumbrancer, was only entitled to have these costs paid in the same priority as his demand; there was no positive decision as to IN a very recent number you expressed a hope the costs of prior incumbrancers; his Honor inti-in which all your readers participated-that the mated, however, that a case might be made out appointment of commissioners for the sale of incumwhich would entitle the plaintiff to these costs, not bered estates should be made from none other than in the priority of the plaintiff's demand, but in that the purest motives. of the prior incumbrancers; but the notice not having been so framed the motion was refused. It would appear to us that the costs of all the incumbrancers, whether prior or puisne to the plaintiff's demand, should be paid according to their respective priorities, otherwise the severity of the rule, making a plaintiff personally liable, would be carried still farther, as if the fund only sufficed to reach the plain

The motives which led to these appointments I do not question, but to one of the selections I object that of Mr. Hargreave. Towards that gentleman personally I not only entertain no ill-will, quite the reverse, I admit his talents; I acknowledge with the utmost satisfaction that general rumour does

* See 1 Irish Jurist, Rep. 352.