judgment they should be included in one peti tion. Any solicitor who nominates a solicitor's clerk or Mr. Brewster, Q. C., and Mr. De Moleyns, on behalf of the plaintiffs in the first cause, moved that Henry Joly, the receiver in this cause and matters, be removed from said receivership, and that the said receiver do proceed forthwith to pass a final account. By | [The facts of this case will be found fully set forth in the Master of the Rolls's judgment.] Mr.Hughes, Q.C.and Mr.Tuthill, for the Receiver. MASTER OF THE ROLLS.-In this case a motion has been made on the part of the plaintiffs in the cause, that Henry Joly, of 76, Harcourt-street, the receiver in the matters and cause, should be removed, and that he should proceed to pass a final account, and that the balance, if any, which shall appear due on foot of his account, shall be paid to the plaintiffs in part discharge of the interest due to them. The plaintiffs contend that Mr. Joly is a solicitor, and should on that account be removed; and it is insisted that he has been guilty of default in the discharge of his duty. As to any particular acts of default they should have been specified in the notice of motion if intended to be relied on, but there is no doubt that the arrear due on the property over which the receiver has been appointed has considerably increased. The counsel who moved this motion were not fully instructed, but having had inquiries made, and having called for the documents, the following appear to be the facts of the case: In Michaelmas Term, 1844, a judgment was obtained at the suit of John Henry Dunne against the respondent, Edward John Nugent, in the penal sum of £823 11s. deed of assignment of the 17th of Dec. 1844, J. H. Dunne assigned the property to the petitioner Michael Molony. In Hilary Term, 1842, Richard Deane Keane obtained two judgments against the said respondent, each for the sum of £71 5s. 9d. Mr. R. D. Keane is a solicitor. How two judgments were obtained for what appears to be the same demand, does not appear. By deed of assignment of the 4th of January, 1845, the said two judgments were assigned to the petitioner, Mr. Michael Molony, the deed reciting that there was due on the two judgments £65 4s. 5d. In Trinity Term, 1845, Mr. M. Molony, and a Mr. M'Cullagh, being trustees in a settlement, the particulars of which do not appear, obtained a judgment for £3,200 against the said respondent. The judgment of Michaelmas Term, 1844, and the two judgments of Hilary, 1842, being vested in Mr. Michael Molony, and the judgment of Trinity, 1845, being vested in Mr. M. Molony and Mr. McCullagh, Mr. M. Molony appears to have employed Mr. George Augustus Labatt as his solicitor. The judgment of 1814 was vested in Mr. M. Molony for his own benefit. The two judgments of 1842 were vested in him as trustee for his solicitor, Mr. George Augustus Labatt. The judgment of 1845 was vested in Mr. Michael Molony and Mr. M'Cullagh, as trus tees in a marriage settlement, the trusts of which do not appear. The petition in the first matter was presented in the month of February, 1846, on be half of Mr. Michael Molony, by Mr. G. A. Labatt, as his solicitor, under Sir Michael O'Loghlen's act, for the appointment of a receiver. The effect of Mr. Labatt not including the other judgments in the same petition was to accumulate costs. In the month of May, 1846, Master Henn, under the order of reference in the first matter, appointed Mr. H. Joly to be receiver over certain lands in the County of Westmeath, the profit rent of which was stated in the petition to be £173 6s. 9d. a-year. On the 4th of March, 1847, Mr. George Augustus Labatt, as the solicitor for Mr. M. Molony, presented another petition under the same act, in respect of one of the two judgments of 1842, which was vested in Mr. M. Molony, when the former petition was presented, praying that Mr. Joly, the receiver, should be et tended to the second matter, and to appoint him over additional lands, the profit rent of which was £153 9s. a-year. The latter petition alleged that as to this judgment Mr. M. Molony was trustee for his said solicitor, Mr. G. A. Labatt. The receiver was accordingly extended, and appointed over such additional lands in May, 1847. Mr. Labatt omitted to include the second judgment which was vested in Mr. Michael Molony, as trustee for him, reserving that, I presume, for a future petition. In Trinity Term, 1847, Mr. Labatt presented a third petition on foot of the judgment of Trinity Term, 1845, in the name of Mr. Michael Molony, and Mr. M'Cullagh, to extend the receiver already appointed, and to appoint him over additional land in the county of Longford. That petition was dismissed with costs, on what ground I am unable to say. There ought to have been but one petition to appoint a receiver, and supposing that the Lord Chancellor's Secretary should have objected in respect of his fees to the including all the judgments in one peti tion, there should at the utmost have been but two petitions, the one to appoint and the other to extend the receiver, the costs of the former being about £26, and of the latter about £10; but by the course adopted of presenting separate petitions, and seeking on each occasion to have the receiver appointed over additional lands, the three petitions, if an or der had been made on the third petition, would have involved costs to an extent which, according to the ordinary calculation, would have amounted to from £75 to £80; and there was no excuse whatever for not includinig in the same petition the judgments in the first and second matters. The costs were doubled by the course adopted. The plaintiffs in the cause, who are in no default, and who are merely seeking obtained an order to extend the receiver in July, in a legitimate manner to recover their demand, 1847. What the rental of the additional lands over which the receiver was extended in the cause I do show the oppressive use made, and attempted to be made, of Sir M. O'Loghlen's Act. With respect to the appointment of Mr. Henry Joly to be receiver, I have made inquiry, and I find that he was admitted an attorney of the Court of Exchequer on the 13th of May, 1844; an attorney of the Court of Queen's Bench in Hilary Term 1847; a solicitor of the Court of Chancery in July, 1847; and an attorney of the Court of Common Pleas in May, 1848. When the order of reference to appoint a receiver was made in 1846, in the first matter, Mr. George Augustus Labatt, as solicitor for the petitioner, proposed four names to the Master for the of having one of them appointed receiver. purpose The four persons named were Marcus Tuthill, of Mountain View Cottage, Sandymount, Esq.; James Twigg, of North Cumberland-street, in the city of Dublin, solicitor; Henry E. Joly, of Harcourtstreet, in said city, solicitor; and Lewis Darcy, of Jervis-street, in said city, Esq. Mr. Labatt has produced a letter from his client, the petitioner, which it is stated was received in May, 1846, recommending Mr. Henry Joly for the office of receiver. The petitioner states in that letter that Mr. Henry Joly was receiver in the cause of Joly v. Rumley, in which the petitioner was tenant; and he says, "see him and mention my name." Thus of the four persons nominated to act as receivers over lands situate in the county of Westmeath, two were Dublin attorneys, another resided at Sandymount, near Dublin, and the fourth in Jervis-street, Dublin. Who the two esquires are I am not aware, probably some of the same class of esquires who figure in the list of receivers returned to Parliament, several of whom I understand turn out to be attorneys' clerks and attorneys' apprentices. I cannot find the names of these esquires in the Directory. Mr. H. Joly was not at this time (1846) a solicitor of the Court of Chancery, but he was an attorney of the Court of Exchequer, and Master Henn appointed Mr. Henry Joly to be receiver. I am clearly of opinion that an attorney or solicitor ought not to be appointed to the office of receiver, and I shall upon that ground remove him, and this question can be raised before the Lord Chancellor on appeal. I stated my opinion upon that subject very fully in the case of Reynolds v. Reynolds, so long ago as January, 1848. It appears from a report which was published of that case that I made, amongst others, observations something to the following effect:-"The gross mismanagement of estates under the Court of Chancery was a matter of public notoriety, and from a return recently published it would appear that from 1841 to 1843 (and the return would probably be still more remarkable if carried down to 1847) an additional arrear of something amounting to a quarter of a million of money had arisen from the bad management of estates by receivers. The case then before him was one which called for the animadversion of the court, and the mismanagement had arisen from the person who had the carriage of the proceedings not having felt it to be his duty to exercise care and consideration in nominating a competent receiver; for was it to be supposed that a practising attorney or barrister was a proper person to act as receiver? Was it, he would ask, extraordinary when such an appointment had been made that the tenants upon the property were in such a state of combination MASTER LITTON'S OFFICE. have stated, either by the Lord Chancellor or by the costs, as the Masters have thought it right to the Masters upon this subject, or by the solicitors appoint attorneys and solicitors to the office, but of the Court of Chancery, and as the Masters have they must abide their own costs. It is satisfactory been in the habit of appointing solicitors, shopkeep- to me that I am in no way responsible for the enor ers, attorney's clerks, apprentices, and other unfit mous evils which have arisen from the system, my persons to the office of receiver (imposed on I have opinion expressed in January, 1848, having been no doubt in many cases by the party having the entirely disregarded. If, however, in future a solicarriage of the proceedings)-it may be right that citor or attorney should be nominated to the office I should inform the solicitors who practice in this of receiver and appointed, I shall fix the party who court, that if any solicitor, solicitor's clerk or ap-nominates him with the costs of appointing a new prentice, shopkeeper, or other person carrying on receiver. any profession or trade, shall be in future nominated and appointed to be receiver, I shall, upon an application for that purpose, unless some strong reason to the contrary is shewn, remove such receiver, and make the plaintiff, or the petitioner, or receiver, or the solicitor having the carriage of the proceed ings, pay the costs of the appointment of the new receiver. The masters ought to open books in their offices, in which queries should be put, which should be answered by every solicitor proposing a receiver, and by every person nominated to the office. The answers to such questions should be inserted in writing in such books, and signed by those parties; and if those questions were properly prepared, it would be impossible that the class of unfit persons who have been appointed under the denomination of esquires and gentlemen could in future be appointed. The Masters ought, in my opinion, to submit to the Lord Chancellor, under the provisions of the 108th general order of the court, such suggestions as would prevent a recurrence of the improper appointments which have hitherto so frequently taken place. Many other steps should be taken which it is not necessary upon this occasion to state. I was informed when in London, that upon inquiry it appeared that many of the esquires and gentlemen in the list of receivers returned to Parliament turned out to be attorneys' clerks and apprentices. A system of the grossest fraud and deception has, I believe, been practised upon the Masters. I have no power to make general orders, but orders are necessary to reform the disgraceful system, which, I am glad to say, is now fully exposed. Whether the Lord Chancellor should or should not do so, I am unable to state; but I shall in this court, visit any future attempt to nominate an improper person to be receiver with the utmost severity; and if I shall find an attorney's clerk or an attorney's apprentice, again nominated to the office, I shall not have the slightest hesitation in suspending from further practice in this court the solicitor who adopts such a course. What has been the result of appointing an attorney to be receiver in this case? The rental is stated to be several hundreds a year; the arrear due by the tenants has greatly increased; not a shilling has been paid to the creditors; a sum, however, of £187 13s. 10d. costs has been paid to the receiver and petitioner's solicitor, and £30 more is claimed, amounting to £217 13s. 10d.; and thus the main object of petitions under the sheriffs' act has been obtained in this case. I shall, therefore, order that Mr. Joly shall be removed as receiver, and proceed to pass a final account that it be referred to the Master to appoint, a fit and proper person to be receiver in his place and that the plaintiffs shall have the carriage of this order. I do not fix Mr. Labatt or Mr. Joly with MOLONY v. NUGENT—July, 27th. MASTER LITTON.-It is my desire to correct some errors which appeared in a report in the public papers of what I stated here on Wednesday last. Since the Master of the Rolls' judgment in the case of Molony v. Nugent, the question continues to be daily proposed to me, whether if a competent, and respectable, and solvent man, or man of business, understanding the duties of an agent, and resident upon, or close to, the lands named in the pleading, and whose appointment as receiver is desired by the parties, shall be proposed to me for the office of receiver, I will refuse to entertain the question of his nomination, because the party proposed is a solicitor? My answer has been that I shall not refuse to entertain it, notwithstanding the judgment and opinion given by the Master of the Rolls in that case. And further, that if I shall deem him, upon a consideration of the circumstances of the estate and his qualifications, the best man, I will appoint him. I am bound, in the first place, to follow the law as I find it; and, in the next place, in the important duties with which I am entrusted, and which I am bound to perform to the suitors and the public, I must follow my own opi nion, if it be not opposed to, or at variance with the law. The course which I thus announce it is my intention to pursue, is sustained by the law, and the uniform practice of more than half a century, both in England and in Ireland-by the Court of Exchequer-presided over by four learned and experi enced men, its barons-by the uniform practice of the four Masters in Chancery, and of the Chief Remembrancer of the Exchequer; and, above all, by the opinion of the head of the court, the present Lord Chancellor, who, in the case of Loftus v. Stephenson, to which I shall again advert, has decided the very point. If the Lord Chancellor should ever be found to agree with the Master of the Rolls, and should, by his decision, alter the law as it has uniformly prevailed in his court, the suitors and the public may be assured, that the Masters will follow, in spirit and in letter, whatever decision shall be so pronounced. If he shall pronounce a general order on the subject, as suggested by the Master of the Rolls in his judgment (but which for the sake of the suitors and the public I anxiously hope he never may), he may be assured that he will find that the Masters of the court will yield implicit deference to the order of the head of the court, whatever their own opinions may be. If an act of parliament should pass, by which solicitors shall be pronounced incapable to act as receivers, much as we should deplore an enactment as very injurious to the interests of the public, we should, of course, carry it into full effect. But, on behalf of the suitors and the public, we have a right to require that the law of the land shall be altered by act of parliament, or by the head of the court, before we shall be called upon to act as upon an altered law-especially where we are of opinion that such alteration would prove greatly detrimental to the public interests. In giving my reasons for considering that the opinion of the Master of the Rolls-" that solicitors should never, or should, only under special circumstances, be receivers,"―is erroneous, and that it cannot, consistently with the interests of the suitors, be followed, I premise that I have, in my appointments of receivers, always required, as essentials, residence upon or near to the lands, personal character, habits of business, solvency, and a knowledge of the duties of an agent, having reference as well to the interests of the tenant, as to the interests of the landlord. In all these qualifications, I find, as a general proposition, the local resident solicitor infinitely superior to the country gentleman; and yet, the class of country gentlemen would appear to be the only class left to us, if the Master of the Rolls' judgment be rightly reported, from which we could in future select a receiver. A solicitor has some knowledge of the law of landlord and tenant, and hence he avoids the perpetual irregularities and illegalities into which, in dealing with the tenantry, a country gentleman so often falls. A solicitor knows the peculiar rules of the court, as to the dealing with tenants of the court, the limited powers of distress, the favour shown to good tenants in the letting of lands, the form of affirmance by the receiver of the justice and fairness of the proposals for the taking of lands, which are brought before the Master for his approval, and he is acquainted with the many other protections to both landlord and tenant, which, by the rules of the court, are thrown around the suitors, as well as around the tenants of the court. A country gentleman receiver knows not any of them, hence continued delay, expense, and trouble. He is wholly ignorant of all the points which arise between landlord and tenant (and they are many) in relation to the poor laws. He pays away money (as, for instance, interest on charges and maintenances) which he ought not to pay without an order; and he requires an order for the payment of head rent and tithe rent charges, which he is bound to pay without an order. He does nothing without reference to his solicitor, and his solicitor becomes the receiver, without the responsibility of the office. Hence heavy demands for costs made, because the solicitor has been employed by the receiver, but which would not, and could not be made if the receiver were a solicitor. In the passing of accounts the contrast is still more apparent, and it is all in favour of the solicitor receiver. Various rules as to accounts have been of late years made by the Masters, and confirmed by the Lord Chancellor. When these rules are attended to, the account presents upon the face of it arithmetical demonstration of its accuracy which cannot err. When they are neglected all is confusion, and the suitor is subject to the effects both of mistake and of fraud. I advert especially to the reconcilement rule, now the law of the court, and to other practical rules regulating the form of accounts, the value of which, to the suitors and to the public, none can appreciate save those who are conversant with the details; and no man filling a judicial office in the Court of Chancery can be so, save the Masters in Chancery, before whom these details pass daily and hourly, and whose duty it is to require that these rules shall be accurately abided by. The accounts brought before the Masters by the receivers, who are solicitors, are, in most cases, excellent. Perfectly acquainted with these rules, they, generally speaking, accurately follow them. They lodge their accounts within the periods prescribed by the rules of the court, saving the expense of extending the time for passing the account, and all the mis. chiefs attendant upon delays-whereas, the accounts sent up by country gentlemen receivers are, generally speaking, tissues of errors, and have in a very great number of instances to be sent back to them for correction and amendments-hence extensions of time for passing the accounts, and its attendant costs become necessary- balances remain in the hands of the receiver-failure in his circumstances-necessity to require payment from his sureties, and all the evils which attend the administration of an estate by an inefficient officer. I repeat it, and aver it upon the experience of nearly seven years as a Master in Chancery, and of thirty years of Bar practice, confined for many years almost exclusively to practice in the Courts of Equity, that a resident solicitor, possessing adequate qualifications in other respects, is the best agent and receiver. And, I will add, (a fact which every practical man knows), that in many counties of Ireland at present we cannot obtain any others than solicitors who would be at all qualified to act as receivers. So that, in this point of view also, the rule proposed by the Master of the Rolls, if adopted, would prove quite destructive to the suitors of the court. The opinions of the Master of the Rolls, I would say, have been adopted from three or four extreme cases (and none but extreme cases appear in his court) which have been brought before him-cases which have presented very large arrears of rent uncollected; but it is to be remembered, that these cases have occurred within the last three years, the most disastrous to the agricultural interests of Ireland, which have occurred within the memory of the present generation, and a period exactly coeval with the period of the exercise of his judicial functions. As to the suggestion that a solicitor can create costs for himself, by reason of his office as receiver, no practical man can, for one moment, entertain such a question. No proceeding can be adopted by a receiver without the order of the Master, made in the presence of, or upon notice to, all parties. No costs of any other proceedings can be, by the law of the court, allowed. I have thus, I think, shewn that the opinion of the Master of the Rolls, that in no case (save on special grounds) shall a solicitor be appointed a receiver, is not a well-founded opinion; and I am now to state that it is opposed to the opinion of the Court of Exchequer, and of the Chief Remembrancer-to the opinion of the four masters of the Court of Chancery-and, above all, to the opinion of the Lord Chancellor, the head of the court, whose ous, but decided terms, to the Master of the Rolls in open court (which was done), that I could not follow his opinion, as declared in the case of Reynolds v. Reynolds, but must continue to appoint solicitors receivers in all cases where I considered them, under the circumstances of the estate, the best men. The appeal came on to be heard in the Rolls Court. The discussion of it occupied almost an entire day. The Master of the Rolls, yielding to the force and power of the law, surrendered his opinion, and confirmed my report. There was an appeal to the Lord Chancellor; he confirmed my report so far forth as the principle of appointing solicitors receivers was involved, and though the report was sent back to me for the moment, that I might reconsider a question as to the association with Mr. Bruce of other persons as advisers in reference to a certain question touching the machin opinion has been expressed by a deliberate decision upon the subject. The law of the Court of Chancery in this respect has never been doubted. Sir William McMahon, a very experienced and painstaking judge (as stated by the Master of the Rolls himself in his judgment) decided the point-Mr. Smith, in his book on receivers, lays it down as the law of the court-all the Masters of the Court of Chancery have acted upon it, uniformly, as long as any living man can remember. Sir Edward Sugden's general orders, in excluding solicitors' clerks only, virtually established that solicitors are eligible. The general orders of the Court of Exchequer, in excluding solicitors' clerks and solicitors concerned in the cause, virtually established that solicitors generally are eligible, and the four Barons of the Exchequer and the Chief Remembrancer have given this construction to their rule, and act upon it. The Master of the Rolls is right in saying, that Sir Edward Sug-ery of a mill, yet on the return of my second report, den, at one time, entertained the opinion that it Mr. Bruce, solicitor, was confirmed in his office as would be better not to appoint a solicitor or attor- receiver, and holds it still. Will the Master of the ney receiver. Whether he still entertains that Rolls remove him, and make the solicitor who opinion I have not any means of knowing. But nominated him pay costs? I trow he will not. this I do know, that whatever his individual opinion This case, in the view of the profession, established was when he was Lord Chancellor of Ireland, he the law of the court, if it had ever been doubted. acted not according to that opinion, but according In point of fact, it did-not by mere opinion, but to the law and practice of the court. That he did by the concurrent decisions of the Master in the so is established, not only by the general order I cause, the Master of the Rolls, and the Lord Chan have adverted to, but in the case of Pepper v. Fos- cellor, in a very contested case, devoid of any ter, in which case I appointed Mr. M'Creight, at- peculiar circumstances-establish that a solicitor, torney-at-law (so describing him) receiver. Sir if otherwise eligible, and where there were rival Edward Sugden who perused my report, commu- candidates, is not ineligible because he is a solicitor. nicated with me upon this very subject, and having I do not understand how it is that the Master of heard my reasons, and been assured of the law and the Rolls can free his judgment from the force of practice of the court, he deliberately confirmed my this decision, to which he was a party, affirming report, and Mr. M'Creight is still acting as receiver. and following as it does the settled law of the Will the Master of the Rolls remove him, and make court. He may make orders, setting aside the apthe solicitor who nominated him pay costs? I trow pointment by the Masters of such receivers (which he will not. In this state of the law and practice about appointments they must continue to make); but I two years since, there came to be discussed, in the must say that it appears to me perfectly clear, unRolls Court, the case of Reynolds v. Reynolds. less the law of the land shall be altered, that all In that case, the Master of the Rolls expressed his such orders must be reversed. I conclude my ob opinion as strongly as he has done in the case of servations by reading what Master Henn has put Molony v. Nugent. The Masters did not, as sug- into my hands, in writing, that what he publicly gested by the Master of the Rolls, disregard his stated two or three days since in his court may not opinion; but having considered it, the Masters be misunderstood. He has desired that I should arrived at the conclusion that it was not a sound read it publicly. Whatever comes from that learned opinion, or one which could be acted upon consist-functionary and most just judge, has ever been ently with the law of the court, or the rights of the suitors, or the interests of the public, and they declined to act upon it. In this state of things, the case of Layton v. Stevenson, about a year since, came before me upon an order of reference for the appointment of a receiver. It was a case of great magnitude in point of property, and there were proposed two candidates for the receivership-one a solicitor, Mr. Bruce, of Belfast; the other gentleman not a solicitor. Able counsel were heard by me on both sides. The case of Reynolds v. Rey-general order of the court prohibiting such an appointment, I do consider nolds was relied upon as establishing the Master of the Roll's opinion; and it was fairly stated that, if I should appoint Mr. Bruce, there would be an appeal from my decision. I did, notwithstanding, ap-in point Mr. Bruce; and that there might be no mistake as to my intentions, I styled him in my report, Attorney at-Law ; and requested of the able counsel who attended before me, to state in courte 66 received by his brother Masters as it has been with the public, with that attention, deference and respect which his learning, his experience, his sense of justice, his caution in dealing with the rights of others, and his strict adherence to the law and practice of the court, so justly entitle him to. His words are these: "If the head of our court were to pronounce a decision affirming the principle, that in no case ought a solicitor to be a receiver, I would hoid order of the court were pronounced to the same effect, I would strictly obey it; but, in the absence of a direct authority by the head of the court, or of any myself bound by the authority, and would follow it strictly; or if a general that in every case in which, by the law of the court, the selection of a pra per person to be a receiver is committed to my discretion, I am not only entitled, but bound to exercise that discretion to the best of my own judg ment, without reference to the opinion of any individual, leaving it to the judge of the appellate jurisdiction to deal with it according to the dictates of his judgment, and that I would be guilty of a dereliction of my duty, if, were to yield up my opinion in deference to that of any other person, unless I knew the opinion of that other person to be final and conclusive. Holding that to be my opinion, be it right or wrong, the such a case, suitor is entitled to, and I would act corruptly and dishonestly if I did not give him the benefit of it." |