Page images

against him, the court (upon motion) will not suffer is to serve only those in possession ; in Ireland the execution to be taken out till the right be tried." practice of all the courts is to serve not only every

This case and others referred to in Fairclaim v. person in possession, but every person claiming a Shamtitle, (3 Burr. 1290) shew that the anxious legal or equitable estate on the premises sought to desire of the courts has been to assist those who be evicted, who is known to the lessor of the claimed rights in the subject of the ejectment plaintiff, and resides within the jurisdiction of the But as the court could not be put in motion without courts. Boardman v. Grier, (2 F. & S. 55, note,) an application on the part of the person seeking to Longfield Eject. 31, Ed. 1846. And for this reason join in the defence, and as the rights of those who it was deemed unnecessary to extend the provisions remained in ignorance of the proceedings would of the 11 Geo. 2 to this country. If this be so, be barred, the 11 Geo. 2, c. 19, was passed to there can be no reason why the same rule whichi prevent fraudulent recoveries of the possession by has been adopted in cases of ejectment on the title, collusion with the tenant of the land, (Crocker v. should not also be adopted in cases of non-payment Fothergill, 2 B. & Al. 652,) who, by the 12th of rent. The two cases being in their nature section, is directed, as soon as the declaration in without distinction, are now looked upon as disejectment is delivered to him, to give notice of tinct actions, by reason of the ejectment statutes, such delivery to his landlord, under pain of forfeit- which make no change in the persons who should ing three years improved, or rack-rent of the be served. premises holden. And Lord Mansfield, in the The result of the English practice is this, that case before cited, Fairclaim v. Shamtitle, speaking where it concludes all parties having interests in of who should be considered a landlord within the the lands, it provides for their having notice ; meaning of this act, says, “it extends to landlords where it does not so provide, it allows cross-ejectde jure, as well as to landlords de facto. A prob- ments to be brought. Now, our Court of Queen's able cause of claim is sufficient to entitle the land- Bench concludes persons, without giving them lord to be made defendant.” And accordingly a notice, who would be without redress, after the devisee in trust, Loveland d. Norris v. Doncaster, time had expired for redemption, if the Court of (4 T. Rep. 122,) and a mortgagee, have been per- Exchequer adopted a similar practice, and did not initted to defend as landlord, as falling within the allow cross-ejectments to be brought. Therefore meaning of the act, Doe d. Telford v. Cooper, we think that the practice of the Exchequer is (8 T. R. 645) though perhaps not such as would more calculated to do justice, and more in accord. be entitled to notice. That statute and these ance with that established in England. cases do not apply to this country, but both illus It has also been always consistent. In Howard's trate the design of the legislature, and desire of the Prac. Ex. of Pleas, p. 39, it is said, “that all persons courts, to aid persons whose interests would other who are in possession, or claim any title in the wise be defeated, without any opportunity of land, must be served ; and in page 64, “where an defence, in a court of law, and whose sole remedy ejectment is brought for non-payment of rent the would be through the instrumentality of a court of practice is the same as where it is upon the title, equity.*

except that there must be a notice that it is brought This being the English practice, has it been for non-payment, &c." And some of the older adopted by our Court of Queen's Bench, and is cases in the Queen's Bench appeared to have fol. the decision of the Common Pleas, in the case in lowed the same practice, until the cases of Nugent question, consonant with it? Certainly not in v. Earl of Bantry (2 H. & Br. 156), and Dunne v. spirit, and, we submit, not in practice either. The Butler (Batty, 316, note), in which a different rule persons having intermediate interests in England, appears to have been first established, not without are not served with process in ejectment, not being some hesitation on the part of the court, who exin possession, but provision is made that they pressly rested their decision on the basis of the shall have notice-imperfect and indirect we admit English practice. If we have shewn that the prac---from the tenant, and may come into court, as we tice was not, nor is, really what it has been assuined have shewn, either at common law, or under the to be, we think the rule cessante rutione cesset lex provisions of the statute, (11 Geo. 2, c. 19,) should be applied to their mode of proceeding on whereas, according to our Queen's Bench practice, this subject. they may be in total ignorance of the attack upon So far, we have treated this question without their property, until it be, perhaps, too late to undo reference to the provisions of the Ejectment Stawhat has been done.

tutes. The next consideration will, therefore, beIn ejectments on the title, the English practice Have they made any change as to the persons to be

served ? And, for distinctness, we shall consider It will of course be understood that these observations this branch, first, as to lessees and their assigns ; are only applicable to the ejectment for condition broken, and, secondly, as to mortgagees and their assigns; , in which it appears incontrovertible that all estates derived and it appears to us, from an attentive considera

under the lease are divested Ab. 474 ; 6 Co. 40, b, 41, a.). With respect to ejectments shewn an intention of interference with respect to

(Co. Litt. 202, b. (1) 1 Rol. tion of this code of laws, that the legislature have on the title-in contra-distinction to those for condition broken-the ejectment may be brought as often as the

the latter class alone. parties please. Now, persons whose claims rest on the The first statute (the 11th of Anne, g: 11, s. 2) evicted lease, if the practice of the Court of Queen's Bench enacts that the summons in ejectment

stall stand be the correct one, have not this advantage, and this is an in place of the demand and re-entry at common additional reason for the service of all persons legally in- law;" that if it should appear that more than terested in the lease.

half a year's rent was due, and that there was no case, correct, the cases of registered mortgagees and sufficient distress on the premises," then the lessor their assigns, being especially excepted from what should recover as if he had demanded, &c., " and a we conceive the general rule was, and should be, re-entry made,” &c.; "and in case the lessee or and whose rights were their first submitted to the lessees, his or their assignee or assignees, or other opinion of a court of law. person or persons, claiming or deriving under the We admit the force of the argument ab inconsaid leases, shall permit or suffer judgment to be had, venienti advanced by the advocates of the practice &c., and without filing any bill for relief in Equity of the Court of Queen's Bench, that it is a hardwithin six months, that all such persons should be ship upon landlords that their rights may be debarred and foreclosed from relief at law or equity,” feated at the trial by a legal estate created by the &c. These words permit and suffer, &c, have tenant-perhaps with that very object-and of been used as an argument to shew that the legisla. which the landlord could have had no means of ture intended the service of all persons claiming discovery. This would but postpone his rights on interests. This, it will be observed, is an Irish the other hand, substantial interests, and rights may act of an Irish legislature, and was in advance of not be postponed merely, but wholly defeated, if English legislation on this particular subject. It the party having the right happen not to have would appear, therefore, to be a more reasonable notice of the ejectment proceedings till the six construction of those words to say, that the legis- months for redemption have expired. This may lature found the practice of serving all persons be said to be improbable, but it is not impossible; having interests already in existence, and legislated and if so, the mere postponement of rights is preaccordingly. The analogous act (4 Geo. 2, c. 28, ferable to their destruction. Besides, the former Eng.) contains the same words; and the 11 Geo. 2, evil' might be easily remedied, by requiring such a c. 19, Eng., was then passed to remedy the mis- registry of the assignments of interests under chiefs created thereby, which the Irish courts had leases, as is required of mortgages by the 8 Geo. 1, already abolished, by their more equitable prac- and, if not registered, that they should be incapable tice. The 4 Geo. 1 c. 3, s. 3, gives the right of of being set up at the trial in opposition to the ejectment when there is a year's rent due, though landlord's rights. there be sufficient distress, but is otherwise similar to the 2nd section of the 11th of Ann.

With respect to mortgagees, the 3rd section of We publish elsewhere the general orders prepared the Statute of Ann, and the 5th section of the by the Chancellor and Master of the Rolls, under 4 Geo. 1, c. 2, save unconditionally the rights of the Act to facilitate the sale of Incumbered Estates mortgagees not in possession. The previous sec- in Ireland. tions of these acts being large enough to include Taken in conjunction with the act itself, they them as persons claiming under the lease ; and the 8 Geo. 1, sec. 4, extends the provisions of the former greater facilities—having regard both to rapidity statutes, and enacts that registered mortgagees, and and cheapness-than any one accustomed to the their assigns, if served with the ejectment, shall be slowness of Chancery proceedings could reasonably bound, unless the premises be redeemed within have anticipated. There are many points left unnine months ; and, if not registered within the fifth touched ; and some of the orders will, so far as section, in that case, they were bound although not incumbrancers are concerned, probably render served. These provisions are, as we have said, in many costs untaxable, as between party and party, advance of the English legislation on the same sub- which yet must be incurred ; and the effect will be ject, and are evidently framed with a view to the from this and other causes, that this act will rarely, then uniform practice of the Irish courts; and in if ever, be resorted to by incumbrancers. this view there appears to be no contradiction or

People in this world are very selfish, and dislike difficulty in arriving at a conclusion as to theird trouble-except they are paid for it--and the meaning, which we would understand to be this orders require so much inquiry beforehand, so the saving in the statutes of 11 Ann and 4 Geo. 1, much pains-taking accuracy, so much risk as to being too general, the statute of 8 Geo. I was costs, that few creditors will choose a new course passed, which did not enact that they should be of proceeding, without any profit to themselves, served that being already the practice of the for the philanthropic motive of saving expense to courts—but the unlimited saving in the previous the estate to be sold. Under the bill system and aets being found inconvenient, the object was to the privilege of filing them still exists--they had provide a registry of the mortgagees of the lease, only to take care of themselves, and leave the other that they might be more readily discovered, and creditors to do likewise ; under the new, they then, if served, they have but nine months to re- have not only to state their own case correctly, but deem; if they are not served, but are registered, that of every other purchaser on the estate, and to their rights are to be as before that is, with an swear that there is not any person baving any unlimited saving. And if they had not registered estate or interest in the lands or lease mentioned under the fifth section, in that case they were to in the petition, or any incumbrance or charge be treated as if served, and should redeem within thereon, or whose consent is necessary to a sale nine months, or be barred of all right to the thereof, other than the persons severally named as lease. For this reason, we think the conclusion such in the petition.” The petitioner is to do this arrived at by the majority of the Judges of the without being allowed the expense of searches preCourt of Common Pleas was, in this particular paratory to filing the petition. The Master, for

the purposes of title, may, after an order on the ing to forms to be submitted to and approved of by the Lord petition has been made, direct them, but the peti-Chancellor, the several particulars required to be stated in tioner is in the awkward position of being obliged, the return directed by the said act to be laid before parlia. without the means of knowledge, to make a perfect respective offices will enable them so to do; and all such case by his petition, at the risk of having it dis- entries shall be made weekly at the least, so as to show at missed with costs.

the end of each week the total amounts and quantities to Again, when there is any question of fact to be that time of the several matters required to be set forth in elicited, or point of law to be raised, the machinery such return. of the act gives no apt form of pleading. Nor does it offer temptation to those who require haste petitioner to submit to such order as the court may think

5. Every petition shall contain an undertaking by the to begin and leisure to conduct the suit when the proper to make, in the event of its appearing, on any en. defendants are brought before the court.

quiry to be directed under the petition, that such petitioner Now, a bill may be filed in a day, without oath, was not a person authorized by the statute to present such or without the consent of any individual except the petition. plaintiff, and, as the suit progresses, may be amended

6. That the petition by the owner of land, under the as occasion may require. We do not say that this second section of the said act, or by the owner of a lease, system is better than the one proposed, but it is under the fourth section of the said act, who shall have con. less troublesome and more independent for the tracted, subject to the approbation of the court, for the incumbrancer, and therefore more likely to be sale thereof, shall be entitled, and shall contain the state. adopted by him. We are disposed to think that ments as herein-after set forth, with such variations as the the act, for some time at least--and never, except

nature and circumstances of each case may require, in simple cases, such as those which are now In the matter of the Act to 7 TO THE RIGHT HON. called friendly suits-will be little used by incum facilitate the Sale of Incum

THE LORD CHAN. brancers.

bered Estates in Ireland.

CELLOR, Ex-parte [State the Name of the

The humble Petition of

Court Papers.

The petition shall state

Ist.--The date of the contract for the sale of the lands or Chancery.

lease, the parties thereto, and a concise abstract of the con.

tents thereof. GENERAL ORDERS.

2ndly. In case the petition is by the owner of a lease AN ACT TO FACILITATE THE SALE OF under the fourth section of the act, the petition shall state INCUMBERED ESTATES IN IRELAND.

the date of and the parties to the lease, and the short par.

ticulars thereof. Dated the 13th day of January, 1849. The Right Honorable Maziere Brady, Lord High Chan 3rdly.--The petition shall state the estate or interest of cellor of Ireland, by and with the advice and assistance of the petitioner in the lands (or lease] so contracted to be sold

, the Right Honorable Thomas Berry Cusack Smith, Master and the uses or limitations, and the trusts, if any, to which of the Rolls, doth hereby in pursuance of an act of parlia- the said lands (or lease, as the case may be,] stand limited ment, entitled “ An Act to facilitate the sale of Incumbered or settled ; and shall also state the name of every person

, Estates in Ireland," and in pursuance of all other powers who, to the knowledge or belief of the petitioner, has any in him vested, order and direct in manner following

estate or interest in the lands or lease in the said petition

mentioned; and the dates of and parties to the several instru1. Every petition to be presented under the said act for ments referred to in the petition ; and the party by whom the confirming and carrying into effect any contract for sale the petition is prepared shall take special care that the abor for the sale of any land or lease, shall be verified by the stract of the material parts of said instruments, stating the affidavit of the petitioner or petitioners, or by that of some said uses or limitations, and trusts, shall be made with as other person or persons, stating special reasons why the much conciseness and brevity as is consistent with a clear affidavit of the petitioner or petitioners, cannot be obtained statement of the same. in support of said petition,

4thly.-In case the purchase money of the lands or lease 2. That the deponent or deponents in every such affidavit contracted to be sold is less than the amount of the sum shall depose to the truth of the several matters stated in due on foot of the incumbrances and charges in the second the petition ; and in addition thereto shall state that there schedule to the petition mentioned, the petition shall further is not to his, her, or their knowledge or belief any person state, the lands, if any, not contracted to be sold, which having any estate or interest in the lands or lease, mentioned are subject to or affected by such incumbrances or charges in the said petition, or any incumbrance or charge thereon, and the estate or interest of the petitioner therein; and the or whose consent is necessary to a sale thereof, other than name or names of the other owner or owners thereof

, if any; the persons severally named as such in the petition. and the gross rental thereof; and the several charges and

incumbrances, if any, affecting said last-mentioned lands, 3. That the fees to be paid upon proceedings under the and which shall not be specified in the second schedule to said act, and all costs to be allowed thereon, shall be the the said petition; and the net annual rental thereof. same as may be now lawfully received by or allowed to the officers and solicitors of the Court on similar proceedings 5thly.-The petition shall further state, that in the first in any cause or matter pending in the Court; and all rules schedule thereunto annexed, is set forth a true and accurate and orders of the Court for the taxation of costs shall apply rental of the lands (or leasehold interest] contracted or proto the fees and costs of such proceedings.

posed to be sold; and such schedule shall be in the form

herein-after set forth, and shall state the names of each 4. That the masters in ordinary of the Court, and the sub-denomination, if any, the names of the tenants, the registrars, shall cause to be duly and regularly entered in dates of and parties to the leases or other instruments under proper books, to be kept in their respective offices, accord which the said tenants respectively hold, the tenurea, the

number of acres held by each tenant, the annual rents, the forth the short particulars of the consent, and the date gale days, and the arrear due by each tenant to the last gale thereof. day.

9thly. In case the lands are subject to any mortgage or 6thly. The petition shall further state, that in the second mortgages, the petition shall state that they do not, nor do schedule thereunto annexed, is set forth a true and correct any of them contain any power of sale: or in case a power list of all the incumbrances and other charges affecting the of salo is contained in any such mortgage, that the mortgalands (or lease]contracted or proposed to be sold ; and the gee has consented to the application ; or if there has been names of the several persons entitled thereto, or interested a refusal or neglect to use diligence towards the exercise of therein ; together with the sums due on each incumbrance such power of sale, the petition should state such refusal or charge, distinguishing principal from interest; and such or neglect, as specified in the sixty-seventh section of the schedule shall be in the form herein-after set forth, and shall act. distinguish such incumbrances or other charges which affect a derivative estate or interest, or less than the whole estate 10thly.--The petition shall further state, that no suit or interest in the lands or lease contracted to be sold, from for foreclosure, redemption, or sale of the said lande (or such incumbrances or charges as affect the whole estate or lease, as the case may be,] or any part thereof, commenced interest in the lands or lease contracted or proposed to be before the first of July, 1848, is pending; or if any suit is sold; and shall also distinguish those incumbrances or pending, state the parties thereto, and when the bill was charges which affect all the lands from such as may affect | filed; and if such consent, as is stated in the sixty-seventh only a portion thereof; and the petition shall state that section of the act, has been obtained, state same. there is not, to the knowledge or belief of the petitioner, any incumbrance or charge affecting said lands (or lease, 11thly.--The prayer of the petition should be carefully as the case may be,] save the incumbrances and charges in framed in accordance with the tenth section of the act, acthe said schedule set forth.

cording to the circumstances of the particular case; and it

should further pray, that the contract for the sale should be 7thly. The petition shall state the crown rents or quit carried into effect, in case the petitioner has previously to rents (if any) subject to which such lands (or lease, as the the petition entered into a contract in pursuance of the act, case may be,] shall be contracted or proposed to be sold. or if not, it should pray for a sale of the lands or lease, as

the case may be, under the provisions of the act; and the 8thly.—The petition shall further state, that no incum- petitioner should also pray for general relief. brancer is in possession of any part of the lands, and that no receiver has been appointed over the said lands (or lease, The form of the petition, where the petitioner has not as the case may be,] or any part thereof; or if any incum previously contracted for the sale of the land or lease, shall brancer is in possession, or has obtained an order for a be the same, (omitting the statements numbered 1 and 4,) receiver, add-save and except the party named, and that with such variations only as may be necessary in consequence the consent in writing to the petition has been obtained, of no previous contract having been entered into. signed by such incumbrancer--and the petition should set


Containing Rental of the Lands of

in the County of

(contracted to be Sold)—or where the Owner has not contracted previous to the Petition (which the Petitioner applies to the Court for the Sale of,) under the Provisions of the Act.

[blocks in formation]

If any part of the Lands is in the actual possession or occupation of the Petitioner, state the number of Acres of which

the Petitioner is so in the possession or occupation.

SECOND SCHEDULE TO WHICH THE FOREGOING PETITION REFERS. Containing a List of all the Incumbrances and Charges affecting the Lands (or Leasehold Interest, as the case may be?

contracted to be Sold; or (sought to be Sold, under the Order of the Court, as the case may be.]

4. 5. 6.

8. 9.

10. Nature of Incumbrance ;

Whether the Incumdescribing the

brance, Judgment, Departicular na

cree,&c. affect the whole ture of the

Estate and interest in same, accord.

the Lands (or Leaseing to the de

hold Interest] contractfinition there

ed or sought to be sold of in the First

under the order of the Section of the

Court, or only a derivaAct, i.e, whe

tive Estate or Interest, ther it is a

or less than the whole mortgage, or

Estate or interest in said money secur

Lands (or Leasehold ined by a Trust,

terest], and if so, the naor by Judg

ture and extent of such ment, or by

particular or derivative Decree, &c.

Estate or interest.

Charge, if any, not falling within the defini.
tion of an Incumbrance under the Act, e. g.
a Jointure, or Rent Charge, or other An-
nual Charge not re-purchaseable on pay-

Date and nature of the Instrument by
which the Incumbrance or Charge was cre-
ment of a gross sum of money.
ated, e.g. whether by Deed, Will,&c. and the
date of the Judgment, Decree, Order, &c.
Parties to the said Instrument, Judgment,

Decree, &c.
Parties in whom incumbrance or charge

now vested.
Whether the Incumbrance, Judgment,
Decree, &c., affect the whole or a part, and
if so, what part of the Lands contracted to
be Sold, or sought to be Sold, under the

Principal sum due on Incumbrances fall.

ing under first column.

Interest due on Incumbrances falling un-
der the first column, stating the rate of In-
terest payable on each respectively, and the
day up to which the Interest in each case

Arrear, if any, due on the Charges specified in the second column and up to what day such Arrear in each case is calculated. is caleulated.

That the petition by the first incumbrancer on any land 4thly.-The petition should further state, that in the or lease, under the second or fourth sections of the said schedule thereto annexed, the petitioner has set forth, to act, shall be entitled and contain the statements as herein- the best of his knowledge and belief, a true and correct list after set forth, with such variations as the nature and cir- of all the incumbrances and other charges affecting the lands cumstances of each case may require.

(or lease, as the case may be,] proposed to be sold ; and In the Matter of the Act to7 TO THE RIGHT Hon. rested therein ; together with the sums due on each ineum.

the names of the several persons entitled thereto, or inte. facilitate the Sale of Incum. THE LORD CHANbered Estates in Ireland,


brance or charge; and such schedule shall be in the form of

the second schedule annexed to the petition by the owner Ex-parte (State the name of the The humble Petition of

of land ; and which form the said incumbrancer sball fill up

to the best of his knowledge and belief; and the petition Petitioner.]

shall state that there is not, to the knowledge or belief of the The petition shall state

petitioner, any incumbrance or charge affecting said lands 1st. The incumbrance vested in the petitioner, and how (or lease, as the case may be,] save the incumbrances and created, and if same was created by an instrument in writ. charges in the said schedule set forth. The petitioner, how. ing, the date of and parties thereto; and the petition shall ever is not to be allowed any costs for searches. This and further state the material parts of such instrument, and no the preceding provision, however, as to costs, are not to other parts thereof; such statement to be made, and the apply to any searches which may be directed by the master instrụment abstracted, with as much conciseness and brevity to whom the petition may be referred. as is consistent with clearness. If the incumbrance be a

5thly.--The petition shall state the crown rents and quit judgment, decree, or order of the Court, the petition shall rents, if any, subject to which such land (or lease, as the state the date and parties thereto. If the petitioner was no

case may be,] shall be sought to be sold. party to such instrument, judgment, decree, or order, &c.

The petition shall further state the matters to be stated, the petition shall state concisely the instruments by which eightly, ninthly, and tenthly, in the petition, by the owner the right to such incumbrance is vested in the petitioner ; of land; and the prayer shall be framed under the tenth the party preparing the petition taking special care that the section of the act, according to the circumstances of the title to the incumbrance shall be set forth in as concise a

case; and the petition shall further pray, that the lands (or manner as is consistent with a clear deduction of such title. lease, as the case may be,] may be sold under the provisions If the incumbrance is a judgment, and shall have been re- of the act; and general relief. vived, the petition shall state the revival, and the parties A petition by an incumbrancer under the second or fourth to such judgment of revival.

sections of the act, (not being the first incumbrancer,] 2ndly. - If the petition is under the fourth section of the and being in possession of the title deeds and writings relatact, it shall state the date of, the parties to, and the short ing to the land (or lease, as the case may be,] shall be particulars of the lease sought by the petition to be sold similar to a petition by a first incumbrancer, stating, in a under the order of the Court.

schedule to his petition, a list of the deeds and writings in 3rdly.--The petition shall state the uses or limitations, his possession. and the trusts, if any, to which the land or lease stands

7. That every petition as aforesaid shall be headed asfollimited or settled, so far as the petitioner is acquainted with lows, according to the circumstances of each case:same, and in whom the estate or interest in the land or lease

1st. Petition by the owner of land who has contracted for is vested; and the name of every person who, to the know- the sale thereof, under the second section of the act; or ledge or belief of the petitioner, has any estate or interest 2ndly, petition by the owner of land, under the second secin the lands or lease in the said petition mentioned; but the tion of the act, who has not contracted for the sale thereof; petitioner is not to be allowed any costs or expenses for or 3rdly, petition by the first incumbrancer on land, under searching the registry.

the second sectiou of the act, for the sale thereof; or 4thly,

« EelmineJätka »