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IN CHANCERY.

Plaintiffs. PURSUAN, the Decree

in this cause, bearing date the flat day of June, 1849, I hereby require all

Hall and others, Defendants,
persons claiming to be creditors of Nicholas Price, late of Saintfield in the
County of Down, Esquire, deceased, the testator in the pleadings in the
cause named, to come in before me at my Chambers on the Inns Quay, in
the City of Dublin, on or before the First day of October next, and prove
their respective demands, otherwise they will be precluded from all benefit
under the said decree,

Dated this 30th day of July, 1849.

William Nevin Wallace, Solicitor for the plaintiffs,
30, North Great George's Street, Dublin.

A

JUST PUBLISHED,

E. LITTON.

ADDISON ON THE LAW OF CONTRACTS TREATISE on the Law of CONTRACTS, and Rights and Liabilities ex Contractor. By C. G. ADDISON, Esq. of the Inner Temple, Barrister-at-Law, Second Edition, 2 vols. 8vo. price £118, RUSSELL ON ARBITRATION.

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of the Court can do a great deal in correcting abuses
where he discovers them, and providing against Executors of Price, and others,
them by proper rules." The next question asked
was, "There is no alteration in the law with regard
to receivers that you would recommened?" and Sir
Edward's answer was, No, I think not; I would
prevent the appointment of so many receivers. Sup
posing it were an inevitable evil that they should
now have £1,700,000 of property under the Court
(which I think it is not, and I should be very much
disinclined to appoint receivers over such a large
amount of property, and I would take care that
such an amount of property should not come under
the management of the Court); but supposing it
were inevitable under the law as it stands and is
administered, that there should be that amount of
property under the Court, it might be very desirable
to have something in the nature of a Master, who
should have his whole time and attention directed
to the management of receivers." Do you agree
with Sir Edward Sugden in considering that it is not
possible for legislation to deal effectually and ad-
vantageously with the appointment of receivers?—
I cannot say that I agree in that; it may be difficult
to point out an adequate remedy, but of this I am
quite clear, that you will never have estates properly
managed under the Court of Chancery, so long as
you have the present system existing of the solicitor
for the plaintiff or the petitioner in the cause nomi-
nating the receiver, because Master Murphy has
informed me that in the majority of cases nobody
attends before him except the solicitor for the peti-
tioner. The Master cannot appoint any body of his
own motion without having some person named, and
the only person who attends to name the receiver is
a person deeply interested in having the estate ill
managed, because if it is well managed it will dimi-
nish the costs.

1121. Though Sir Edward Sugden in his answer rejected legislation, he points to rules of Court meeting the evils as they shall arise, and he suggests the appointment of a Master, whose exclusive duty it shall be to look after the appointment of receivers and the conduct of receivers?-I have no hesitation in saying that I agree with Sir Edward Sugden in the propriety of having an officer in Dublin who should have nothing whatsoever to do but to attend to the general superintendence of Chancery property. That has always been my view.

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The Right Honorable Henry John
Reuben, Earl of Portarlington,
and others,
Defendants.

WHEREAS it has been re

presented to me, that several

of the Creditors on the Estates of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named, have neglected or omitted to come in and file charges on foot of their respective demands and incumbrances, pursuant to the decree of the 9th day of February, 1847, and that the time limited by and for the said purpose has expired, and that it is expedient to extend said period: Now I require all Creditors and Legatees of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named, and also all persons having Charges or Incumbrances affecting the real and free. hold Estates of the said late Earl of Portarlington, to come in before me at my Chambers on the Inns Quay, in the city of Dublin, on or before Tuesday, the 20th day of November next, and proceed to prove and claim the same, otherwise they will be precluded the benefit of said Decree.

Dated this 30th day of June, 1819.

John Warnock, Plaintiff's Solicitor,

30, North Great George's Street, Dublin.

E. LITTON.

£1 68.

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COMMENTARIES on the Law of SURETYSHIP, and

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A COLLECTION of Copyhold PRECEDENTS IN

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THE course pursued by Her Majesty's Government with reference to the Irish Poor Law has been marked with precipitancy at the commencement, and infirmity of purpose at the close. Lord John Rus sell appointed a Poor Law Committee, and before a single witness was examined carried a resolution in favour of a rate in aid. He subsequently made that resolution law. His Committee examined a very large number of witnesses, and undertook a very laborious and vast enquiry, but before they had reported to the House, the Poor Law bill was introduced. This was disrespectful to the Committee. Enquiry was either necessary or it was not; if necessary, the result of that enquiry should have been made known before legislation were attempted; if unnecessary, no Committee nominated by the Government should have been appointed.

Assuming, however, that there was no intention to cast a slur upon the Committee, we can arrive at no other conclusion than that the Government had seen and heard enough to prepare them for legislation, and that their minds were made up to introduce a bill on their own responsibility.

Accordingly, Lord John Russell, on the 26th of April, deliberately laid his plan for an amended Poor Law on the table of the House. It was short, but proposed two important alterations in the law, which were received with very general satisfaction;-one by which jointures and rent-charges for life were made liable to deduction for poor-rate, and the other which adopted the principle of a maximum rate.

The Act has passed, without the clauses embodying these two changes. The sections were struck out by the House of Lords, and the alterations were submitted to by Lord John Russell.

The position of the Minister must be indeed pain

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ful who has not the power to carry in their integrity the measures which he introduces. It is to us almost incomprehensible how an objection could be persisted in and allowed to a change in the law so just as that which proposed to make rent-chargers liable to poor-rate.

We have shown to demonstration in previous numbers the glaring injustice of allowing the life proprietor to pay the whole landlord's rate, whilst the life rentcharger pays nothing; and this is strikingly exemplified in the case-which is probably not of unfrequent occurrence of the owner settling a rent charge upon one son for life, with remainder to trustees for the use of that son's issue, and then settling the corpus of the estate upon another son The first son confor life remainder to his issue. tributes nothing in aid of the poverty of that property from which he draws the first fruits, whilst the whole burden of supporting its pauperism, and contributing to a costly poor-law establishment is thrown upon the next son, who may be left with a miserable remnant to support the position and respectability of the family.

In both cases the quality of estate is equal, there should be an equality likewise in payment of a tax which has hitherto been, and ought always to be, payable out of the annual proceeds of the land subject to it.

The only arguments which can be stated in support of the present law are: First, that by dividing the amount of rate payable by the proprietor in possession, the stimulus to give employment and lessen the pauperism of the estate would be diminished, and that an incumbrancer would be taxed who has no control over the estate and its management.

And, secondly, that his case should form no exception to that of other incumbrancers.

We cannot admit the cogency of these arguments. The first assumes that a proprietor in all cases re

upon

The change originally proposed in the law was

quires a money-stimulus for the proper management injury inflicted by the sudden calling in of a rent of his estate. Suppose this necessity not to exist-charge, the annual amount comprehends the liability as in a vast number of cases we feel satisfied it does of the proprietor, not like interest money, (the prenot-is it just to punish the benevolent landlord mium of forbearance,) the transfer of the land to because there may be bad landlords upon whom it a new proprietor will not divest it from the charge. is necessary to place the screw tightly. Is it just Whilst thus great benefits can be conferred to punish the hard-working, struggling landlord who the proprietor, by taxing the rent-charger, no coldoes all in his power to make every one upon his lateral injury can arise. property comfortable, and to burden him with a fixed impost, for rent of which he is the mere re-just to the present proprietor, and it was politic in ceiver, and never can be the beneficial owner, be- the event of a sale of his interest towards a future cause there may be cases in which inhuman landlords owner-who might be induced to purchase, from may be induced to clear their estates-from a convic- the conviction that he would have but his equitable tion of self interest, rendered more intense by legis-proportion of rate to bear. lative injustice? Above all, is it humane-when the death of each pauper is a positive gain to the proprietor to give an increased interest to the unmerciful man to rid his estate of paupers, by imposing upon him, during their existence, the entire landlord's proportion of rate?

We very much regret that the House of Commons were obliged to acquiesce in the expunction of a clause which was calculated to remove one glaring anomaly in a poor law, where the pressure of liability is so unequally adjusted.

The manner in which the House of Lords dealt It is repugnant to common sense and common with the maximum clause has some justification, justice to allow one man who gives no return what-though, on the whole, we regret its loss. ever for the income he derives from the estate to escape untaxed, and to impose the whole rate upon the hardworking, benevolent, resident proprietor, or the idle, avaricious absentee,-as the case may be, in order to induce the latter class to lessen the pauperism upon their estates.

If there were no other reply to the first argument it would be sufficiently answered by the fact that the good and the bad proprietor are dealt with on the same principle, that neither the one who neglects, nor the other who fulfils every duty that devolves upon him, can ever shake off this burden. The proprietor in possession of the best managed estate in Ireland, who has reduced the poor-rate to its narrowest limits-the amount necessary for the support of the aged and impotent-must still pay a per-centage upon an income which goes to another person.

The second branch of the argument is also unsustainable.

In

On grounds of public policy,-derived from the consideration of the present encumbered state of the landed property of this country,-it may have been considered inexpedient to tax a class of incumbrancers, who would, from the diminished income derivable from their security, so long as it remained outstanding, at once demand payment, and by selling for non-payment, add to the glut in the land-market. Measures sufficiently stringent for the gradual confiscation of encumbered properties were adopted without resorting to one that would cause the precipitate extinction of the rights of their owners. the abstract it is unjust to tax the income derived from land as the sole fund for the support of pauperism, except that pauperism be altogether rural, more unjust to tax a portion of that income, and that portion the least able to bear it, but having regard to the particular circumstances of the period we can understand it being sound policy not to tax income derivable from redeemable incumbrances, except in common with every other species of income. But the reasoning fails when we have to deal with unredeemable charges, their burden and their duration are alike determined; there can be no

The Premier refused to state from what sources the funds necessary, after payment of the maximum, were to be supplied, and whilst this important blank was left unfilled, we are not surprised at the erasure of the clause. If from the solvent unions, the imposition of this impost-which would be, in point of fact, a rate in aid-would be inconsistent with the plan of diminishing the area of electoral divisions, and individualising responsibility.

The loss of this clause is, however, more properly chargeable upon the Minister, than upon the House of Lords; and upon him also we charge a grave omission in not providing some remedy for the injustice under which tithe rent-charge owners labour by the operation of the poor law. No unbiassed mind can come to any other conclusion, than that it is grossly inequitable to impose a double deduction upon this species of property, more espe cially when its application is not for the benefit of the pauper, but in ease of the landlord. Now that the ad valorem scale of payment is, as between landlord and tenant, repealed, it was very simple, and certainly very just, to have extended the new principle to landlord and tithe owner-a moiety of rate to be deducted from each pound of rent-charge.

The great inconsistency in the same code is no where more strikingly shewn, than by exempting a lay life rent-charger altogether, and doubly taxing the clerical life rent-charger, nay, more than doubly, for he is charged on his gross income, whilst every other rate payer is assessed upon his net.

A dozen lay lords were sufficiently powerful to make the measure deficient, and where it was deficient, inequitable-and not a voice was raised from the bench of bishops for the insertion of a clause, which would have been as clearly just, as the other was unjust. The House of Commons acquiesced in the one instance-it is not too much to say they would have done so in the other.

We have shown what the act does not contain; its contents will form ample subject for another article.

HOUSE OF COMMONS.

RECEIVER COMMITTEE.
Right Hon. T. B. C. Smith.-June 28.

(Continued from p. 332.)

1122. And that officer should be appointed by the Court, and be under the jurisdiction of the Court? I should be very much disposed to make it a higher officer, appointed by the Government; a Master, or something of that sort; I should not like to see him a nominee of the Lord Chancellor; I think for the due discharge of what are called public duties a man ought to be independent.

1123. If the properties which he was to superintend were brought under the jurisdiction of the Court, would there not be some anomaly in his being independent of the Court?—I think not. The Masters are independent of the Lord Chancellor; he could not remove any of them; I mean that the Lord Chancellor should exercise no more control over such person than he could exercise over one of the Masters, or over myself; he might overrule one of our decisions, but he could not remove us from office.

to the Court on petitions. I disppose of every petition presented to the Court of Chancery which is moved in court, except in lunacy and bankruptcy cases; therefore you are in that way getting into the court session after session new business.

1138. The legislation has a tendency to increase the business in Chancery?-Yes; if you will look back for the last 10 years, you will find Acts passed in almost every session, giving summary jurisdiction by petition to the Court of Chancery in various cases.

1139. Sir J. Graham.] Have you admitted a classification of minors' and lunatics' property on the one hand, and of judgment creditor's praying for receivers on the other?-I admit that there is a distinction, but I have not stated that the property of minors and lunatics is well managed; on the contrary, I can state that I do not think it is in many cases well managed, and I can give a remarkable instance of it. There is a minor a ward of the Court, who is an Irish Peer and the mismanagement of that very estate has been the subject of evidence so long ago as the Landlord and Tenant Commission. The state of that property is such that I apprehend it will be very difficult to have it well managed. An application was made to me under very painful

1125. You would have the new officer to be appointed Master of Receivers, as we will term him, responsible and obedient to the Lord Chancellor?-circumstances last year to pay the expences at Eton Yes, just as much as a Master in Chancery is.

1130. This new Master, if he were appointed, would be in the position of a Master in Chancery, and removable only for misconduct-Yes; but I have no doubt that both Houses of Parliament would have him removed, as a matter of course, if he were to think proper to dispute the power of the Lord Chancellor, or to act improperly.

1132. Mr. R. B. Osborne.] Sir Edward Sugden has hinted at something like a Master Receiver. Supposing the management of those estates were taken from the Court of Chancery, as they are at present managed, and concentrated under the controul of one governing body, would you not give a power of appeal from that body?-I think so. Though I have said that the receiver should not be appointed by the Court of Chancery, still there should be a controul vested in the Lord Chancellor. 1134. Supposing the jurisdiction, as respects the present system of receivers, were taken from the Masters, would it not relieve the Masters of the Court of Chancery from a great deal of business? It is very hard to anticipate the effects of any system of legislation. It was contemplated, and it was so stated in the House of Commons, that when the Encumbered Estates' Bill was passed, it would leave us much less to do; and there has hardly been an acre of land sold under it.

of this young nobleman. I thought it my duty, as I always do, whenever an ex parte application is made, (for I find it absolutely necessary from experince to do so,) to take the trouble of looking I closely into all the circumstances of the case. called for all the papers and took them home with me, and on investigating the case I found that the rents and profits of the estate were insufficient to keep down the interest of the encumbrances, and that there was not a single farthing forthcoming to pay the Eton expences; and I was obliged to adopt the painful course, considering I had no right to be generous at the expense of the encumbrancers, to refuse the application.

1140. My wish, in calling your attention to the classification which I suggested, was with reference to the equitable considerations which guided the Court in allowing an outlay for improvements upon properties under those distinct classes?The distinction between the two classes of cases of receivers in what may be called a creditors' suit, and receivers in minors' or lunatics' matters, is this: the Court of Chancery is considered as representing the minor or lunatic, those persons respectively being under a legal disability; and, representing the minor and lunatic, the Lord Chancellor standing in the position of landlord; and, standing in that position, he has a power which does not exist in the case of a receiver in a creditor's suit, and the power is accord

1187. But you would anticipate that there would be a diminution of business in your own court?-ingly not exercised in the latter case. I have no doubt there would, to some extent: but on the other hand, this is to be kept in mind, that our business is increasing every day as to matters with which hitherto we have had very little to do; for example, in the present term I have had a petition under the Winding-up Stock Companies Act; I have had two petitions with reference to trustees investing money; and Acts of Parliament are passing from time to time giving summary jurisdiction

1141. When you speak of the power that the Lord Chancellor has, the power in both cases is limited by his discretion with a view to his equitable jurisdiction, it is not limited by statute?—No, there is no limitation by statute.

1142. Assuming that the estate of a minor or a lunatic is a solvent estate, if it were proved to the Court that a certain outlay would lead to an improvement in the fee-simple value, and even in the

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life interest, the Court in the case of lunatics and encumbrancers, or only just sufficient to keep down minors, would not hesitate to order that outlay? the interest. Supposing an application were made I apprehend not; but there are some general orders for an outlay on drainage, of £300 or £400, the of the Court which relate to outlay. But the prac- difficulty the Court would be placed in would be tical difficulty upon the subject is that the Court this: To allow such an outlay would be substantially has no means of deciding the propriety or the im- making the property of the last encumbrancer bear propriety of the outlay, unless the Court is put in the whole expense, for you must let the receiver lay motion by somebody. If, for example, the guar- out the money, and allow it in passing his account, dian of any estate of a minor that was well circum- in which case substantially it would be paid out of stanced were to apply to me for permission to lay the property of the last encumbrancer. The effect of out money on improvements, I should not hesitate that outlay might be to leave the creditor and his for a moment. Take the case of Lord Powerscourt: family to starve. You are applying to improvement if Lord Roden, who is the guardian, said that he what may be the property of others, when there wanted so many hundreds of pounds to expend upon may be no available surplus to be appled to the imdraining, I should have no hesitation, either in re- provement of the estate. ferring it to the Master, or in making the order myself upon motion.

1144. In the case of minors, the Court stands in loco parentis, and it would order the outlay ?-Ex-with reference to outlay on estates for creditors? actly.

1145. In the case of creditors' estates under receivers there is a wide difference, and according to the established usage of the Court, based upon equitable principles, such an outlay would not be sanctioned by the Court?-No it would not.

1146. In reference to the interest of a creditor in posession of a judgment, and still more of a mortgagee backed by a judgment, you would hold that any outlay for the permanent improvement of the estate would be in fact an outlay of their money? Yes.

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1149. On the whole, viewing the difficulties which you have just enumerated, you would not be disposed by legislation to enlarge the power of the Great Seal I should say it was desirable to give the power to the Court; but what I mean to say is, that it would be misleading the Committee and the public to suppose that it would be productive of any very bene ficial results, because there are a great number of cases in which the Court could not justify the outlay proposed.

1155. Mr. R. B. Osborne.] Are there not cases in which, on public grounds, it is necessary, irrespective of the interest of the owner of the estate, or of the creditor, an expenditure should be made where both the owner and the creditor oppose it?-That is a difficult question. If you give authority to the Lord Chancellor to decide that question, you give him authority to take money out of another man's pocket for the purpose of improving an estate. I am under the impression that the object to be attain

1147. And without their consent being given, you would not think of permitting that outlay?-I would not do it, because sitting at the Rolls I feel bound to act upon what I have always understood to be the strict rule; that rule has been, without the consent of the creditor, or of the inheritor, not to sanc-ed by the Legislature is to simplify the proceedings tion any outlay upon improvements.

1148. Sir Edward Sugden was asked this question in No. 552. "In the case you have put, of an estate held on behalf of creditors, would not the Chancellor feel himself at liberty to order such an outlay ?" -And his answer was, "No; if the parties consented to it, he would do it, but not otherwise. "There must be a motion and notice to the parties?—Yes." "And considerable expence incurred? Yes, because it would be a question as to the laying out of money." Then in question 555, he was asked, " And even when it came on for hearing, it would be doubtful whether it was within the limits of his jurisdiction?" And his answer was, "When I was in Ireland I was constantly forced to refuse to relieve tenants on encumbered estates, becaue I had no power." "But if you had the power, you would have exercise it?-I should have exercised it without the slightest difficulty." He goes on to say that he thinks some legislative interference necessary, to enable the Chancellor within certain limits to sanction an outlay even upon estates under receivers for creditors. Do you concur in that opinion?-I think that is an exceedingly difficult question, having regard to the different circumstances of different estates. I will take this case, which frequently occurs in practice. Supposing there is no surplus rental whatever; suppose that the rental of the estate is either insufficient to keep down the interest of the

of the Court and the law of conveyancing, and thereby to reduce the number of cases in which the Court of Chancery should appoint receivers to collect the income of estates. The great object is to keep property out of the court, and not to impose a duty upon the Lord Chancellor which he cannot satisfac torily perform in the management of estates. If an estate could be sold rapidly under the Court, a receiver ought not to be appointed, except under special circumstances.

1156. Would it not be better for the estate if the owner was appointed by the Court as receiver?-I have no doubt of it; and I have expressed the opinion very frequently at the Rolls, that it was very desirable that the agent of the estate should be ap pointed the receiver: and I will mention one case in your county which came before me, in which I effected that object by the order I drew up. 1157. Which was opposed on petition?—Yes, it

was.

There was a Mr. Norris who presented a petition under the Sheriff's Act for a receiver over the estate of a noble Lord, and he having presented a petition, the course was adopted (which I thought under the circumstances was a very fit course to be adopted though it was rather a contrivance) of getting a friend of the noble Lord to file a bill with the view of preventing the attorney or some improper person being placed as receiver over his property. When the motion came on, on the part of the creditor,

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