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HOUSE OF COMMONS.
to the Court on petitions. I disppose of every peRECEIVER COMMITTEE.
tition presented to the Court of Chancery which is
moved in court, except in lunacy and bankruptcy Right Hon. T. B. C. Smith. June 28.
cases; therefore you are in that way getting into (Continued from p. 332.)
the court session after session new business. 1122. And that officer should be appointed by
1138. The legislation has a tendency to increase the Court, and be under the jurisdiction of the the business in Chancery?_Yes; if you will look Court?-1 should be very much disposed to make it back for the last 10 years, you will find Acts pasa higher officer, appointed by the Government; a sed in almost every session, giving summary jurisMaster, or something of that sort; I should not like diction by petition to the Court of Chancery in vato see him a nominee of the Lord Chancellor; I think rious cases. for the due discharge of what are called public duties 1139. Sir J. Graham.] Have you admitted a a man ought to be independent.
classification of minors' and lunatics' property on 1123. If the properties which he was to superin- the one hand, and of judgment creditor's praying tend were brought under the jurisdiction of the for receivers on the other? I admit that there is a Court, would there not be some anomaly in his be- distinction, but I have not stated that the property ing independent of the Court?-I think not. The of minors and lunatics is well managed; on the conMasters are independent of the Lord Chancellor; trary, I can state that I do not think it is in many he could not remove any of them; I mean that the cases well managed, and I can give a remarkable Lord Chancellor should exercise no more control instance of it. There is a minor a ward of the Court
, over such person than he could exercise over one who is an Irish Peer and the mismanagement of of the Masters, or over myself; he might overrule that very estate has been the subject of evidence so one of our decisions, but he could not remove us long ago as the Landlord and Tenant Commission. from office.
The state of that property is such that I apprehend 1125. You would have the new officer to be ap- it will be very difficult to have it well managed, pointed Master of Receivers, as we will term him, An application was made to me under very painful 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. of this young nobleman. I thought it my duty,
1130. This new Master, if he were appointed, as I always do, whenever an ex parte application would be in the position of a Master in Chancery, is made, for I find it absolutely necessary from exand removable only for misconduct --Yes; but i perince to do so,) to take the trouble of looking bave no doubt that both Houses of Parliament closely into all the circumstances of the case. I would have him removed, as a matter of course, if called for all the papers and took them home with he were to think proper to dispute the power of the me, and on investigating the case I found that the Lord Chancellor, or to act improperly.
rents and profits of the estate were insufficient to 1132. Mr. R. B. Osborne.]'Sir Edward Sugden keep down the interest of the encumbrances, and has hinted at something like a Master Receiver. that there was not a single farthing forthcoming to Supposing the management of those estates were pay the Eton expences;
and I was obliged to adopt taken from the Court of Chancery, as they are at the painful course, considering I had no right to be present managed, and concentrated under the con- generous at the expense of the encumbrancers, to troul of one governing body, would you not give a refuse the application. power of appeal from that body? I think so. 1140. My wish, in calling your attention to the Though I have said that the receiver should not be classification which I suggested, was with reference. appointed by the Court of Chancery, still there to the equitable considerations which guided the should be a controul vested in the Lord Chancellor. Court in allowing an outlay for improvements upon
1134. Supposing the jurisdiction, as respects the properties under those distinct classes?--The dispresent system of receivers, were taken from the tinction between the two classes of cases of receivers Masters, would it not relieve the Masters of the in what may be called a creditors' suit, and receivers Court of Chancery from a great deal of business? in minors or lunatics' matters, is this: the Court It is very hard to anticipate the effects of any system of Chancery is considered as representing the minor of legislation. It was contemplated, and it was so or lunatic, those persons respectively being under a stated in the House of Commons, that when the legal disability; and, representing the minor and Encambered Estates' Bill was passed, it would lunatic, the Lord Chancellor standing in the posileave us much less to do; and there has hardly been tion of landlord; and, standing in that position, he an acre of land sold under it.
has a power which does not exist in the case of a 1137. But you would anticipate that there would receiver in a creditor's suit, and the power is accordbe a dimination of business in your own court?- ingly not exercised in the latter case. I have no doubt there would, to some extent: but 1141. When you speak of the power that the on the other hand, this is to be kept in mind, that Lord Chancellor has, the power in both cases is limiour business is increasing every day as to matters ted by his discretion with a view to his equitable with which hitherto we have had very little to do; jurisdiction, it is not limited by statute?-No, there for example, in the present term I have had a peti- is no limitation by statute. tion under the Winding-up Stock Companies Act; 1142. Assuming that the estate of a minor or a I have liad two petitions with reference to trustees lunatic is a solvent estate, if it were proved to the investing money; and Acts of Parliament are pas. Court that a certain outlay would lead to an imsing from time to time giving summary jurisdiction provement in the fee-simple value, and even in the
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 my 1149. On the whole, viewing the difficulties which self upon motion.
you have just enumerated, you would not be disposed 1144. In the case of minors, the Court stands in by legislation to enlarge the power of the Great Seal loco parentis, and it would order the outlay ?-Ex- with reference to outlay on estates for creditors? actly.
I should say it was desirable to give the power to 1145. In the case of creditors' estates under re- the Court; but what I mean to say is, that it would ceivers there is a wide difference, and according to be misleading the Committee and the public to supthe established usage of the Court, based upon equi- pose that it would be productive of any very bene. table principles, such an ontlay would not be sanc. ficial results, because there are a great number of tioned by the Court?-No it would not.
cases in which the Court could not justify the outlay 1146. In reference to the interest of a creditor proposed. in posession of a judgment, and still more of a mort 1155. Mr. R. B. Osborne.] Are there not cases gagee backed by a judgment, you would hold that in which, on public grounds, it is necessary, irresany outlay for the permanent improvement of the pective of the interest of the owner of the estate
, or estate would be in fact an outlay of their money? of the creditor, an expenditure should be made where Yes.
both the owner and the creditor oppose it?-That 1147. And without their consent being given, you is a difficult question. If you give authority to the would not think of permitting that outlay ? _I would Lord Chancellor to decide that question, you give not do it, because sitting at the Rolls I feel bound him authority to take money out of another man's to act upon what I have always understood to be pocket for the purpose of improving an estate. I the strict rule; that rule has been, without the con.. am under the impression that the object to be attainsent of the creditor, or of the inheritor, not to sanc-ed by the Legislature is to simplify the proceedings tion any outlay upon improvements.
of the Court and the law of conveyancing, and there1148. Sir Edward Sugden was asked this question by to reduce the number of cases in which the Court in No. 552. “ In the case you have put, of an estate of Chancery should appoint receivers to collect the held on behalf of creditors, would not the Chancel income of estates. The great object is to keep prolor feel himself at liberty to order such an outlay ?" perty out of the court, and not to impose a duty -And his answer was, "No; if the parties consen- upon the Lord Chancellor which he cannot satisfacted to it, he would do it, but not otherwise. " There torily perform in the management of estates. Ifan must be a motion and notice to the parties ?--Yes." estate could be sold rapidly under the Court, a re“ And considerable expence incurred?-Yes, be- ceiver ought not to be appointed, except under specause it would be a question as to the laying out of cial circumstances. money." Then in question 555, he was asked, “ And 1156. Would it not be better for the estate if the even when it came on for hearing, it would be doubt- owner was appointed by the Court as receiver?! ful whether it was within the limits of his jurisdic- have no doubt of it; and I have expressed the opition?" And his answer was, “When I was in Ire- nion very frequently at the Rolls, that it was very land I was constantly forced to refuse to relieve desirable that the agent of the estate should be aptenants on encumbered estates, becaue I had no pointed the receiver: and I will mention one case power.” “But if you had the power, you would in your county which came before me, in which I hare exercise it?- I should have exercised it without effected that object by the order I drew up. the slightest difficulty." He goes on to say that he 1157. Which was opposed on petition? -Yes, it thinks some legislative interference necessary, toen was. There was a Mr. Norris who presented a peable the Chancellor within certain limits to sanction tition under the Sheriff's Act for a receiver over the an outlay even upon estates under receivers for cre- estate of a noble Lord, and he having presenteda peditors. Do you concur in that opinion?-I think tition, the course was adopted (which I thought under that is an exceedingly difficult question, having re- the circumstances was a very fit course to be adopted gard to the different circumstances of different es- though it was rather a contrivance) of getting a tates. I will take this case, which frequently occurs friend of the noble Lord to file a bill with the view in practice. Supposing there is no surplus rental of preventing the attorney or some improper person whatever; suppose that the rental of the estate is being placed as receiver over his property
. When either insufficient to keep down the interest of the the motion came on, on the part of the creditor,
there was a motion on the part of the friendly en- the plaintiff's or petitioner's solicitors; and when you cumbrancer who had filed the bill, seeking in fact find that to be so, you may infer that in nine cases to get the carriage of the proceedings with a view out of ten, if not in 99 out of 100, the appointment of naming the receiver. You can have no idea of is not a proper one. the struggle that was made in that case to get the 1165. If Sir Edward Sugden's suggestion of a carriage of the proceedings, although it was at Receiver Master were adopted, and if an officer the suit of a creditor who I believe has not the were appointed of high station and character, and slightest chance of being paid a shilling; the solici- it were his duty, in the absence of parties, to make tor by getting the appointment of the receiver would inquiries before the selection of a receiver were made, have put into his pocket some hundreds a-year in the would that obviate the evil ?—It would be better shape of costs, and I defeated that by drawing up a than the present system; but it is quite plain, in my special order, directing the Master in appointing a opinion, that you ought to have the receiver named receiver to have regard to the person who was named by some person who has no object in view but to being the fittest person for the office, without regard have a local agent resident in the district, who is to to the circumstance of the person proposing him act independently of the solicitor and everybody in having the carriage of the proceedings, and that led the cause. By what particular machinery you are to Mr. Richard Pennefather being appointed re- to arrive at that result is a question of difficulty. ceiver.
1166. You have rejected the solicitor's clerk and 1158. You are aware that he was connected with the agent of the solicitor, and you have stated the the estate?-Yes, that was the reason I took these difficulty of arriving at the truth in appointing a measures with a view to his being appointed. receiver in the absence of parties; does it not ap
1159. Are you aware that since he has had the re- pear to you that the great evil of the system, whatceivership the estate has improved ?- That was what ever rules the Court may adopt, arises from the cirI expected; my object was to have hiin appointed cumstance of so large a quantity of encumbered proand I framed the order in such a way as to defeat perty coming within the jurisdiction of the Court? the very pettifogging object of Mr. Norris and his No doubt. solicitor to have the estate badly managed.
1167. Is that evil without remedy ?-I do not 1161. Are you aware that there are improvements know that it is. I am under the impression that you going on on that estate, through the appointment of might simplify conveyancing so much, that, having Mr. Pennefather as receiver? I did not hear that; also simplified the proceedings of the Court, you but the advantage of having a proper receiver I can might sell property quickly in Chancery, provided exemplify, by a case that came before me this term. always, that from the improved state of the country An application was made to abate the rents upon there were purchasers for it. You might in that that property; in general, when applications of that case sell property within a year after the filing of the kind are made to me, I feel great difficulty in dis-bill, and the Court would then be justified in refusposing of them; I cannot tell but that the receiver ing to appoint a receiver in any case, unless there may be bribed to request me to abate the rents, would be danger to the property. For example, if when probably I ought not abate them. But when I it were a leasehold, and the property liable to be saw the title of this estate in the paper, I stated that evicted for non-payment of rent, or the property if Mr. Pennefather would write me a letter, stating was deficient; but in case the property would be what abatement he thought it would be right to make ultimately sufficient to pay every creditor, I think the I would at once make the order.
Court ought not to take possession of the property 1162. Are you not of opinion that if you could if they could sell it within any reasonable time. get men connected with properties as receivers, in 1168. You have stated what alterations of the law a high class of life, and of high character, the whole you would recommend with reference to judgments, system would be very much improved ?>I think that and you have given in a draft of a bill which touches the public is vitally interested in obtaining that re a portion of the evils which now arise from the law sult.
of conveyancing; if famine should disappear, and 1163. Sir J. Graham.] Is it not within the pur- purchasers could be found, by these legislative alteview of the Court, and within the power of the Court, rations do you think that the condition of Ireland to regulate the appointment of receivers?—I did so would be as much improved as we could hope to see in that case, and in the case of another property, it by legislation ?-I have already stated that that where the same circumstances occurred in another bill had only relation to such alterations in the law county. The gentleman who was agent of the estate of conveyancing as occurred to me upon the cases was a gentlemen of most respectable character; he that arose in the court; but it would require a totally had been agent for 30 years. I drew up a similar independent and distinct measure to simplify the law order in that case; I defeated the object of the peti- of conveyancing generally, not only with reference tioner, and I got that agent appointed receiver. But to sales in the court, but sales out of the court. it rarely happens that the respondent or defendant 1169. Mr. R. Osborne.] Have you seen the plan comes forward to litigate the point; and the fact, as which I have submitted to the Committee for the Master Murphy tells me, and which I believe to be purpose of simplifying proceedings ?- I have read 80, is, that if Parliament were to call for a return of it over, but I cannot say that I am familiar with it. the parties who nominated the receivers, and whose 1170. You are not able to give any decided opinames are I believe given in the Parliamentary re. nion whether it would or would not effectually return, in the vast majority of cases you would find medy the present evils ?—I have not the slightest that the receivers appointed were the nominees of hesitation in saying that it would be an improvement
upon the present system; any system by which you 1177. Sir J. Graham.] Have you any security would appoint independent receivers, whether they that those will be the gentlemen who will get the were nominated by the Government or by the Chan appointments ? —No, but the success of the system cellor, or any person upon whom you would impose will altogether depend upon it. The present evils the performance of the duty, subject to public re- arise from solicitors abusing their patronage
, and the sponsibility, whatever might be the details, would same evils would arise from a similar abuse of pabe an improvement.
tronage under any system. 1171. As far as you have read that plan you think 1180. Chairman. Have you any objection to it a great improvement upon the present system?- giving the Court the same power in creditors' reYes, I do. I do not see how you could suggest ceivers matters as they have in the case of minors? anything worse than the present system.
I not only see no objection to it, but I should think 1172. Any system would, in your opinion, be on the whole it would be desirable; but I wish to better than the present?-Yes.
guard myself against being understood to express 1173. Sir J. Graham.] Does not the creation of an opinion that it could be carried to so great att new officers to a considerable extent, throughout the extent as some persons would anticipate. various counties of Ireland, unhappily open the door 1181. The Court would be cautious in exercising to a great deal of jobbing?--I have no hesitation in the jurisdiction ?-Yes. saying that the working of any system of this kind 1182. You are aware that it is proposed to make will depend upon the honest discharge of the duty judgments for poor-rate a primary charge upon by the persons in whom the patronage is vested. If property ?-I did not know that. it is vested in the Government, and it is made a means 1185. Has your attention been called to the clause of political advancement to friends of the Govern- in the Sheriff's Act which gives the judgment crediment, it will fail. If the Lord Chancellor nominated tor applying for å receiver the costs of the petition? persons without due regard to their qualifications, -Yes, that is å mischievous clause. Although I the measure would fail. Any measure of this kind observe that it purports upon the face of it not to be must depend upon the honest discharge of public imperative upon the Court to allow those costs, yet duty; but I do not suppose that there is a country practically, ever since the passing of Sir Michael gentleman of Ireland on the Committee who could O'Loghlen's Act, it has been the uniform practice, not name at this moment, from 'recollection, three both of the Court of Exchequer and the Court of or four persons in every county, who it would be Chancery, to order those costs in priority; and thereuniversally acknowledged hy every gentleman in the fore, though a single Judge may disapprove of that county would discharge the duty in a satisfactory construction, or of the course adopted in carrying manner.
out the statute, it is too much to expect him to say, 1174. Supposing the Executive Government were “ I differ from all the Judges who have acted upon vested with the appointment of district receivers, this construction.” But I have not the slightest would not the pressure upon the Government be hesitation in saying that it is most desirable for the excessive from each county to job the appointment? Legislature to alter that portion of the Act, and to - That might be a reason for not giving it to the let the costs be paid according to the priority of the Government; but my opinion is that country gen- demand. Any gentleman of the Conimittee who is tlemen, acquainted with country duties, might be desirous to know the mode in which the funds in selected, and they would act under public responsi-these cases are distributed, and the rule of law apbility, and I may say Parliamentary responsibility. plicable to their distribution, will find a most able There are persons in every county who might be judgment of Sir Edward Sugden upon the subject found willing to take the office, and who would pro- in the third volume of Jones and Latouche's Reports, perly discharge the duties of it; but whether they in the case of Abbott v. Stratton. The rule, I may would be the men selected by the persons in whom observe shortly to the Committee, is this: if a puisne the patronage was vested is another question. creditor obtains an order for a receiver under Sir
1175. Considering the present unhappy condition Michael O'Loghlen's Act, he is entitled (and that is of Ireland, would not the competion for the office reasonable, I consider,) to apply towards the pay, be extreme?-Yes; but on the other hand, from ment of his puisne demand, all rents actually received that very circumstance you might get gentlemen at before the order for extending the receiver; and thus, present willing to take the office who formerly would if a judgment creditor of the year 1848 had obtained not have accepted the office, and whose qualifica- an order for a receiver, and after six months a judge tions would stand higher than the qualifications of ment creditor of the year 1847 extended the receiver, the persons selected would have been if the present you would pay the puisne judgment creditor of 1848 unhappy state of affairs did not exist.
so far as the rents actually realized by the receiver 1176. Mr. R. B. Osborne.] You are of opinion in the interval between his appointment and his exthat in adopting any system for the managment of tension. That is reasonable enough; but it has been estates very much of the success of that system carried further than that; although the receiver bas would depend upon the characters of the men who not received one single fraction prior to the extende were appointed?--No doubt every thing would de- ing order
, the costs of the puisne creditor are pracpend upon that; but if Colonel Dunne, or yourself tically paid in priority. The language of Sir Michael or Sir William Somerville, were asked whether you O'Loghlen's Act would appear not to make it impe. could mention gentlemen in the counties in which rative. I will read the first words of the Act, which you reside, you would have no difficuly in selecting at first sight it would be said did not require altepersons who would be acknowledged by all as the ration; the words of the 38th section are, " The best persons for executing the duties.
Court shall have power, if it shall think fit, to direct
in any case that the costs incurred by the person at produced, that the recognizance of such tenant has whose instance the receiver was first appointed, in been duly enrolled." Upon the whole my opinion procuring such appointment, be paid out of the funds is, that it would be desirable to dispense with all collected by the receiver, without regard to the pri- those Orders. ority of the person on whose application such re 1195. The burden upon an estate is very much ceiver was appointed.” That would appear to be increased by accumulated stamps? Yes. My opi. discretionary with the Court, which perhaps it is; nion, in considering the point is, that upon the whole but, as I have already said, practically it has been it would be desirable to assimilate the case of tenthe course in both courts always to pay those costs ants under the Court to that of other tenants; and in the first instance; and if that rule had not existed to get rid of the expense, which though nominally in the case that was mentioned by Mr. Osborne just paid by the tenant, may be considered very often now, Mr. Norris would never have presented his as substantially paid by the estate; for you thereby petition, if he had not been certain that when he got deprive the tenant of money that is properly applihis order he would at all events get his costs. The to the payment of rent. solicitor knowing that at all events the costs will be 1200. Do you think the recognizance a security paid him, multiplies to a great extent applications which it is desirable to uphold ?-I should say that under the Sheriff's Act; but if he knew that the it would be desirable to do away with it. costs would be paid according to the priority of the 1202. Have you ever known those recognizances demand, except as regards the rents received prior put in suit ?-Yes, I have; the recognizance is not to the extending order, he would be very slow in a mere form; it is used as a mode of recovering rent. making his application.
1203. Is it of frequent occurrence that the re1188. Sir J.Graham. Whenever there is a new cognizance is put in suit?-I should say not; at tenant to be obtained, is it the invariable practice least I have not known of many cases of it. that he obtains his occupation by public auction at 1225. Is not the suit a peculiarly difficult one; is the highest bidding ?-I believe it to be the invari- it not necessary to state the conditions of the lease? able practice.
-No; a scire facias issues upon the recognizance, 1191. Master Brooke states that there is a sum and it is heard upon the Petty Bag side of the Court paid, however small the yearly rent, whether £5 or of Chancery. Upon this scire facias it is open to £10 of £6 4s. 4d. for the lease and the recognizance? the party to do what he very often does in suits - That is applicable to every case.
upon recognizances; to employ some very clever 1192. Do you think that those recognizances special pleader, who puts in very special pleas. This work well, or that they afford greater security for terminates sometimes in a deinurrer, and sometimes the payment of the rent?—No, my opinion is against in a replication. And there is no doubt that in many them, considering the expense. But I have to ob- cases before Sir Edward Sugden there were inost serve that there is a great deal of difficulty in that technical objections raised. as in other cases, in the Lord Chancellor taking 1226. In fact, it is a suit peculiarly open tó techupon himself to alter the course of practice which nical objections ?- I consider that it so. has existed for 99 years. I have the original Order, 1227. Have you known many instances of money which was made in the year 1750, requiring secu- being recovered by suits on recognizances ?- I canrity; it is an order of Lord Chancellor Newport, not say that I have. and bears date the 29th of March, 1750. I cannot 1228. Have you knowo one?-It would not come find any earlier Order ; this is the Order: “The before me. I do not exercise jurisdiction on the Lord Chancellor declares it for a general rule for Petty Bag side of the court; but, the way in which the future, that in every case where a Master shall it comes before me is, by parties making an appliset lands pursuant to the Orders of this Court, that cation at the Rolls to sue on the recognizance, the he do take security for the rent." And Lord Man- object being to save the expense of the proceeding. ners, by an Order of the 23rd of November, 1821, And when a party comes in that way there is an abwent further; that Order provides in these terms: solute order against the tenant, where an attachinent " Whereas it hath been made known to me that in has issued against him; but there is a conditional several instances where a tenant hath been declared order against the sureties; but I cannot call to mind under the Order of the Court, that the recognizance at this moment any particular case. entered into by such tenant has not been duly filed 1229. In fact it is rather in terrorem than any in the proper office; now I, the Right honourable practical benefit?--I should say that it has not been Thomas Lord Manners, Lord High Chancellor of productive of much practical benefit. Ireland, do declare it as a general rule, that in fu. 1234. Mr. Solicitor-general.] The costs of such ture the Masters shall not perfect any lease under a a proceeding I understand to be, including the costs letting to a tenant, until the certificate of the clerk of law, the costs of obtaining the order, the costs of of the recognizances, that the recoguizance of such the receiver and of perfecting the recognizance, and tenant has been duly enrolled, shall be first pro- the costs of the tenants are not less than £40 or £50? duced." Sir Edward Sugden, in his General Or- -I do not think you should tot all those together; ders
, adopted the same principle. The 142d of Sir I do not know the exact sum, but if the Committee Edward Sugden's Orders, following up the view of were desirous to know what the costs of appointing Lord Chancellor Newport and of Lord Manners, is and extending a receiver were, I remember calling this: “That the Masters shall not perfect any lease for bills of costs two or three times; I did so for my under a letting made to a tenant, until the certifi- own information, and I can state generally that the cate of the clerk of the recognizances shall be first cost of the appointment of a receiver I believe to be