then is a case of evidence on both sides for the plaintiff, that John Maxwell had a lease from the College, for the defendant that it was the lease of Henry, and that John was his tenant from year to year. It was said that Henry Maxwell was a trustee for John Maxwell, or that John may have assigned his interest to him-and it was left to the jury to presume that there was a legal or equitable title existing in John Maxwell. There is no inconsistency between the evidence of the plaintiff and defendant; but there is a difficulty in reconciling the interest of John Maxwell with that of Henry. The charge of the judge should not have told the jury that there was evidence on the one side and the other, but that there was no evidence of a title on the one side or the other. It is not easy to account for the payment of the £950, as but £70 was given for the assignment. TORRENS, J.-I shall confine my opinion to the question of damages, having changed my opinion as to the substantiality of the charge of my Lord Chief Baron, it is right to state it. The question is whether John Maxwell had not such an interest as would enable him to grant a renewal; the question was already decided by the Court of Queen's Bench, (reported 9 Ir. Law Rep. 74.) It is necessary to see what is the evidence by which it is shewn that John Maxwell held from the College. The lease had been renewed from 1792, according to the custom of the College. John was appointed executor, and took out probate of the will of Robert Maxwell; and it is important to observe that no estate vested in Henry till the assent of John Maxwell was first had. We have then a legal possession in him springing from the death of Robert. There was undoubted evidence of the title and possession from 1754 to 1800, and it is clear that without the covenant for renewal the £950 was an excessive consideration. There was no evidence of any rent having been paid to Henry Maxwell, or any other person prior to 1818. I do not see anything in the evidence inconsistent with the estate being that of John Maxwell. PENNEFATHER, B.-I concur in the opinion of my brother Moore as respects the exceptions to the evidence. But as to the exceptions to the charge of my Lord Chief Baron, although there clearly was evidence to go to the jury at the close of the plaintiff's case to entitle him to a verdict for substantial damages, I think at the close of the defendant's case there was conclusive evidence the other way; and that the plaintiff's evidence was entirely displaced. The difficulty on my mind is that the question of damages was left to the jury in a manner calculated to lead them to form a wrong conclusion on the matters referred to them. This bill of exceptions, as far as it relates to the judge's charge, is framed in a manner not to be brought into a precedent; it is taken to different portions of the charge, and is not framed in such a manner as to enable me to say in what way or to what evidence the defendants required the learned judge to direct the jury, or what the learned judge did say. With respect to the authority of the Lord Chief Baron to sign the bill of exceptions, I should not have put my signature to them. These observations are thrown out, not from any doubt on my mind as to what ought to be done, but as to what actually was done. I have read these exceptions with as much care as I could, and have been able to find nothing to show that any exception was presented so as to lead the mind of the Court to what the learned Chief Baron did say in that case. If we take this portion of the learned judge's charge alone, it could not be sustained: "That if the jury believed the whole of the evidence they might find a verdict for the said plaintiffs for substantial damages, but the amount thereof, and whether the same should be substantial or other wise was entirely a matter for them;" if that portion stood alone it is impossible to say that the jury were properly directed. The defendants say they required the Lord Chief Baron to tell the jury that on the whole evidence they should find for nominal damages; that exception is not properly framed. I cannot come to the conclusion that the real case was properly submitted to the jury. If John Maxwell had an interest either as cestui que trust, or otherwise, the plaintiff would be entitled to substantial damages; if he had no title, the plaintiff' should have but nominal damages. Henry Maxwell was the legatee of this property, and the legal estate of John Maxwell was barred by the statute of limitations. The effect of a series of renewals executed to the Maxwell family was not stated to the jury by the Lord Chief Baron; it can only be guessed that it might have been so properly left to them. 3 PIGOT, C. B.-I have been anticipated in great deal of what I had intended to say. In the absence of any averment to the contrary, I must hold that all the jury were properly elected. Of the remaining exceptions, those to the evidence were taken during the progress of the trial, and the others to the charge. I am of opinion, that whether there was a demand of renewal, or a tender of a deed for execution, those facts not being in issue, could not affect the question of damages, the breach of covenant having been committed. As to exception on the question of variance, I agree in the opinion of my brother Moore; and with that of my brother Pennefather, on the dislocated manner in which the exception to the charge has been framed. I regret I did not scrutinize the manner in which this bill of exceptions was made up. The simple question left to the jury was whether there was such an estate in John Maxwell, as would serve a renewal, and warrant a verdict for substantial damages. First, with a view to the amount of damages upon the admitted breach of the covenant to renew. Secondly, that there was evidence of such an estate in John Maxwell, proper to be submitted to the jury. The first proposition follows from the ruling of this court, and the sole question was whether there was evidence that John Maxwell had or had not a title to renew. There was evidence that John Maxwell had, under his hand and seal, declared that he held these lands by a lease under the College; that he had received rent to 1819, and also of the payment of renewal fines. The question was one of damages. It was for the jury to weigh the evidence. It is contended that the evidence for the defendants showed an estate in the Maxwell family, not in John Maxwell. It was the province of the jury to estimate the weight of that evidence. In my opinion the evidence given by the defendants did not extinguish the evidence of the plaintiffs. There might be a sub-lease; Maxwell Close does not say that John Maxwell had no lease. If there was any evidence from which a jury might infer that John Maxwell had an interest out of which a renewal might have been served, the plaintiff was entitled to substantial damages. DOHERTY, C. J.—I coincide in the judgment of the majority of the court. BLACKBURNE, C.J.-I also concur in the opinion of the majority of the court. The main question which has been argued, namely, whether there was sufficient evidence of any such estate or interest in John Maxwell, at the date of the lease in 1808, as would have enabled him or his executors to execute a renewal, is a question not raised, and independently of that question, I am of opinion that the bill of exceptions is totally deficient in precision, and on that ground alone that these exceptions should be overruled.* Judgment affirmed. COURT OF CHANCERY. Molony, PETITIONER, Nugent, respondent. Geale and wife v. Nugent.—July, 30, 31. Practice-Receiver-Solicitor-Judgment Creditor's Petition. A solicitor may be a receiver. Two or more judg· be included in one petition under the ments may Judgment Creditor's Acts. The facts of this case sufficiently appear in the judgment at the Rolls, reported ante p. 319, from which this was an appeal. Mr. F. Fitzgerald, Q.C. and Mr. Tuthill for the appellant. Mr. Brewster, Q.C. and Mr. De Moleyns contra. Mr. Gayer, Q. C. for the Incorporated Law Society. LORD CHANCELLOR.-The question which I have at present to dispose of is, whether, upon the grounds on which this case was argued before me, or on the grounds on which the Master of the Rolls decided to dismiss the receiver, his order ought to be affirmed. This was an order obtained on the motion of the plaintiffs in the cause, who have an interest in the proper management of the property which is subject to their incumbrance; and they are fully justified in coming to the court on every occasion when they think it material to call attention to the conduct of the receiver. They applied to the court to discharge from his office a receiver appointed in 1846, appointed according to the course of the court in regular form, when it was open to every one interested to suggest persons for the appointment, and to call the attention of the court to the objections to any individual nominated if he were an improper person. However, the plaintiffs have a right to move to displace an improper person. I do not understand that he other parties in the cause concur in this applica ion, but they do not dissent from or oppose it. Under these circumstances an order was made by he Master of the Rolls, an officer assisting the Chancellor, to remove the receiver. Although this rder did not reflect on the moral character, it did n the competence of Mr. Joly. While, therefore, This case is reported 10 I. L. Rep. Ex. Ch. the plaintiffs had a right to call the attention of the court to the circumstances, I cannot say that Mr. Joly was not entitled to come in here against an order made on affidavits, reflecting on his integrity, competency or care; at all events when an order is mnade against an officer of the court I cannot think him wrong in coming here to have the order set aside. When I say that none of the parties in the cause oppose this motion I do not mean that it is made on consent, for it was competent to remove him by consent if the parties chose. The matter was discussed on various grounds; but not the least embarrassing part of the case was that those grounds were not the foundation of the order below, for the counsel here did not insist on Mr. Joly's being disqualified by being a solicitor, but on this intelligible ground, that, having regard to the condition of the property, it had been improperly managed. Now, in that point of view, it is important to see what authority there would be for affirming the Rolls' order. In general the grounds for removal are that the receiver has become unfit from some personal calamity, from bankruptcy, or insolvency, or from default. If he has not collected the rents with sufficient diligence he may be charged in his account with the arrears. While, if not satisfied with the decision of the Master, the parties may bring the case before the court, though it has never been the habit of the court to encourage appeals against receivers from the Master's decision, unless a question of principle be involved. By the rule in England, at least, the court will not re-discuss items unless on a question of principle: in the office all parties have the opportunity of scrutinizing every thing. The court has there a machinery by which minute facts can be better ascertained than in court on solemn motion. It is a question what may be the character of this motion? It is not to open or to review the accounts; it is not to complain that any particular charge has been allowed or has been disallowed; that the Master has charged or omitted to charge the receiver with any particular rents; it is not founded on any default of the receiver, or on any attachment against him. It seems to be founded on this, that on the face of the accounts there is something to show the court that a professional gentleman residing in Dublin is not a fit person to have the management of this property, and in that way it was argued at the bar. I confess I should be startled at causing the introduction of such discussion, considering the length it might go, and the number of cases which might occur; for instead of making a specific case, this would call on the court to examine all the dealings of the receiver from his appointment, to see whether too much arrear had been allowed to accumulate; and, in fact, to institute a kind of revision of all his proceedings. There are officers of the court appointed to watch step by step all the proceedings of receivers; these accounts have all received their approval, there has been no default nor attachment for any disregard of any orders of the court, and the only question of detail is as to the propriety of certain proceedings, although those proceedings were sustained by the rental returned by one of the defendants; but on examination of the circumstances of that part of the case I find the receiver per fectly blameless, and free from censure. These few as it were, under tutelage. It was very wise to matters were referred to in detail not as showing exclude individuals whose time was not their own that more rents might have been received from the from a situation of this nature, but the office of solitenants, but as showing that the receiver tried to citor was not considered a disqualification: eligibility get rents to which he was not entitled, and that costs of solicitors seems implied by the exclusion of the were thereby accumulated. If costs were improperly others. When the Court of Exchequer framed their incurred, that matter could be disposed of in the rules they examined very particularly the new rules office, (the proper place for such investigation,) upon of Chancery, and endeavoured to adapt them to the passing the receiver's account. I cannot see where exigencies of their court; some they modified, some would be the end if the time of the court were to be they adopted, and some they rejected in regard to occupied in reviewing from first to last the acts of the matter in hand; to others they added a few receivers, and in considering why a particular por- words, making a specific rule out of an established tion of the rent was not got, or what was a sufficient practice, that solicitors in a cause were not to be quantum of rent; or if it were to be held that be- receivers, but left untouched the general question. It cause certain rents had not been recovered this or is in the knowledge of every one that, in point of fact, that person was not to be continued as receiver, I the appointment of solicitors to be receivers is a com do not know how to determine how much rent would mon practice in the Master's office. Few cases were entitle the court to say that a receiver was good, mentioned, but I may refer to Reynolds v. Reynolds, how little would make him deserve to be called bad, where a long discussion took place on a large arrear what quantity would constitute an indifferent re being brought in against a receiver. It was menceiver; I therefore think that so far as the case tioned that he was a solicitor, and some stress was rests on any amount not having been collected laid on that as showing that the arrears had accrued there is no point of principle; I cannot say that on that account, but the question was not raised because out of £600 he only collected £400 he is whether he ought to have been appointed receiver to be discharged. The only principle which I or not. When that case was discussed before me I could discover is one open in every case, to en- thought that the Master ought to re-consider his quire whether, having regard to the entire cir- judgment on the grounds that he had not sufficiently cumstances of the case, the receiver should be resi- weighed certain matters which required to be taken dent on or near the property, and whether, having into account, and not being sure whether he had regard to these circumstances, it is expedient that considered these matters I referred it back to him the receiver should be continued. Even that is for that he might have the whole case before him on reference to the Master's office, where the court is principle, he then came to the same conclusion that sure that it will receive full investigation. It is only the receiver was in default, but it was not before with reference to that part that the plaintiffs seem me as a matter for any one to decide that a solicitor to have made a case to come before the court, and could not be a receiver. In Lupton v. Stevenson it if they wish to have an enquiry whether it is desirable was mentioned that Mr. Bruce, a solictor, was apthat a person residing near the property should be pointed a receiver, but it was not discussed on the appointed receiver I will grant it. As the case was ground that he was a solicitor, but that by the arargued before me the only intelligible principle it rangement on his appointment he was bound to be involves is, whether, having regard to the condition guided by the advice of another person who was not of the property, it was expedient that a particular responsible to the court; I sent it back on that kind of receiver ought not to have been appointed. ground. I believe, that he was re-appointed, and The case was not decided on that ground, for, as that he, as well as the receiver in Reynolds v. I find it reported, the judgment of the court below Reynolds, are both still receivers. Till this order, professed to proceed on the abstract principle of the it has never been decided in any branch of the disqualification of the receiver as being a solicitor of court, that a solicitor is a disqualified person; an the court. I shall only say that when a question is opinion has been thrown out that they are not com raised as to the law of the court on a particular point petent, but I must decide upon the practice. The the decision ought not to be founded on a specula- practice is, that solicitors are eligible, and it was tive notion of what ought or ought not to be the so decided by Sir William M'Mahon, in a case proper practice; every judge is bound to determine so far back as 1826. On this ground it seems according to the course and practice of the court, that if the case rested solely on the objection that which are the law of the court, until it be changed Mr. Joly is a solicitor, his removal would not be by the Legislature or by a general order made by consistent with the law of the court. Whether the the authorities, to which the power of legislation for Masters will in any case appoint solicitors, must be such purposes has been delegated; until that is done left to the discretion of the Masters, who, both in the law and practice of the court ought not to be England and this country, are considered the prochanged. Now, what law, practice, or rule of the per judges; and it will require a strong case to court exists which prohibits a solicitor from becom- entitle a party to call on the court to re-agitate ing a receiver? No case until this has decided that a question which has been disposed of by the a solicitor as such is disqualified. The rule of court, Master by whom these matters of detail are to be framed by Sir Edward Sugden and the late Master considered, and the business of this court would be of the Rolls, the present Chief Justice, does not con- overwhelming if such questions were considered by tain one word to prohibit them; on the contrary the it. So far as regards that ground, the order canrule is directed against very inferior classes, the not be sustained. So far as the particular details, clerks and apprentices of solictors, persons obviously I do not see my way to make any order against Mr. not in a proper position to be receivers, they being Joly, unless the parties will consent (which they may do) to refer it to the Master to consider ceivers when there is so likely to be a change which whether it would not be better, under the circum- may also require further alterations. It may be that stances, to have a receiver resident in the neigh- the subject will be taken up by the Legislature, bourhood of the property. The Master may then when it will be for it to consider whether, as it has re-consider the question, and appoint another per- prohibited the ordinary officers of the court from son. The cost of such a course might be matter acting in any other capacity, receivers should not for further discussion. Many matters were adverted likewise relinquish all other pursuits. There is, to, which seem not to bear much on the case. It however, this distinction that the other officers havwas said that petitions had been presented for the ing secure and permanent employment may well purpose of making costs; but the receiver was not be required to give up all other professions, while a party to those petitions, and is not responsible for in the case of the temporary and precarious rethe course taken. With regard to what was stated ceiver, no such abandonment of former connections as an excuse for the oppression practised in this could be required. If, however, receiverships should case, by accumulating orders, that a separate peti- be made permanent this distinction would vanish. tion was required for each judgment, it is a mistake Again, it may be necessary to consider whether reto suppose that any such difficulty exists. I can ceivers should be professional men or not, whether state that the secretary does not refuse to receive such appointments should be exclusively from a class a petition, on the ground that several judgments of persons whose recommendation is that they have are included in it; and I have now here two orders, not anything else to do. Whether a knowledge of one in Roper v. Whiting, where the petition was legal detail is not necessary, whether some additional founded on three judgments, and another in Bate- guarantee is not obtained by the position of a soliman v. Piers, also founded on three judgments, and citor, an officer of this court; whether it is necesI am informed that such is the constant practice, sary to re-consider the orders of the court, and wheand no person need be afraid to introduce into the ther a change which could be effected by a general petition several judgments, if vested in the same order might not be beneficial. These questions inparties. I might content myself with the case as it volve most important considerations, and must be at present stands, but I have not been insensible to matters for further consideration. In the event of the great mischief which results from the appoint- it so appearing it will be my duty to submit to the ment of a number of receivers, and removing the Master of the Rolls such alterations as the nature of proprietors from the management of estates, who, the case seems to require, and to receive with the it must be adinitted, ought to be the best mana- attention due to his experience the suggestions he gers; but I feel that there is great difficulty in may offer. It is also the duty of the Chancellor considering this question. There is no use in specu- to give all weight to the opinion of those whose lating on the causes which have led to the increase duties bring them in constant connection with these in the number of receivers; it may have arisen partly cases, and whose experience is therefore most valufrom the practice in this country of selling instead able, the Masters of the court. If my opinion had of foreclosing in a mortgage suit, and thus estates been adverse, it would have been much shaken by are kept under the management of the court until the following certificate from Master Henn, the accounts are taken. The judgment acts have had oldest of the Masters, one whose views are entitled great effect, and in fact this court has now become to the highest consideration :-"I beg leave to an enormous sheriff's office, carrying out executions state to your lordship as the result of my experience, by means of receivers. The question of a remedy derived from a practice for more than 29 years, for the evils of receiverships has much engaged during which I have, I am confident, passed at public attention. Shortly after my appointment to least five thousand receivers' accounts, and appointed my present office, a bill was prepared by my direc- at least one thousand receivers that the best retion, which provides remedies which, in my judg- ceivers I have generally found to be amongst the ment, would be effectual in removing much of the solictors, and the worst amongst those called country evil of the present state of receiverships, and I hope gentlemen and esquires. There are exceptions, that, as the attention of Parliament is now directed and many exceptions, both ways, but most assuredly to the subject, it will lead to some general reform so far as my experience goes, the majority of the of the system, which alone can be an adequate good ones I have found amongst the solicitors, and remedy. In the meantime, whatever may be the the reasons are these-there are scarcely any of result, I must act on the law of the court as I find the country gentlemen receivers who are men of it, and on established principle. The Committee business, or who were trained or educated to be of the House of Commons, which has been referred such. The consequence is, that they are as a class to, was justified in making their report on the evi- the most slovenly, slobbering and bungling receivdence before them; but it cannot be an authority ers I have to deal with not one of them ever for any judge to alter the law, and make a change thinks of framing his own account, few of them are in the practice, which he would not otherwise be capable of drawing them up in form, and it is even entitled to do. The system of examination in this difficult to get from many of them the materials court, or the law of primogeniture, or marriage, necessary to put them into proper form, and I have may be the subject of the report of a committee of scarcely ever a first account from one of that class the Commons, as recommending a change; but in that I have not been obliged to send back once, my court I will uphold the law of the land till it twice, and sometimes a third time for amendment shall be changed by statute, and will leave to others or correction; if they are, as they sometimes are, the responsibility of altering the law. It may be a of the class of respectable farmers, they are conquestion whether it will be wise now to disturb re-stantly blundering from ignorance and scarcely ever are kept right, except they have a solicitor at their elbow, who does not give his services for nothing; if they are of higher order of that class called country gentlemen, they frequently leave the greater part, if not the whole, of the business to be done by the bailiff and the solicitor. When I was Taxing Master, I have repeatedly had bills of receivers' costs to tax, whole pages of which consisted of reading letters from and answering letters to the receivers, and of attendance to pay the creditors and head landlords their interests and headrents, all of which should have been done by the receiver himself, and since the introduction of poorrates both these classes of receivers are constantly in the habit of either making wrong deductions or, as frequently happens, not making any deductions when paying the head landlord's rent. Now these errors, and blunders, and inaccuracies very rarely occur in those cases in which attorneys or solicitors are receivers. They are all trained in some degree to regular and business-like habits, and they are sufficiently acquainted with what country gentlemen receivers scarcely ever know, the rules and orders of the court in relation to their conduct; and they are both more regular in passing their accounts, and more punctual in the disposition of their balan ces; and more exact in executing the orders and certificates by which the Masters direct the application of the balances,; and when I was a taxing officer, their costs were lighter than those of the country gentlemen, because they did without charging, or if they charged, without being allowed, what they were clearly entitled to when acting as solicitors merely, such as attendances on themselves, and other similar charges; while, as collectors of rents they were, and in my opinion are, quite as efficient and as honest-I speak of them as a class-as any other receivers I have had to deal with. Many of them reside principally in or near country towns, and are quite as well acquainted with country business and farming as any other class in the community with which I am acquainted." This is not a singular opinion among those who have to deal most with these matters. If the plaintiffs choose an inquiry on the principle above suggested, they may have it. ROLLS COURT. CULLY, Petitioner, v. LUCAS, Respondent, AND SEVERAL OTHER MATTERS.- -May 29, & June 3. Mortgage Act-Receiver-Conditional order does not attach rents. mortgage, on the 26th of April, 1848, a petition was presented for a receiver under the mortgage act 11 & 12 Geo. 3, c. 10, and on the 28th of April an order was made, referring it to the Master to appoint a receiver unless cause be shewn within 10 days after service of the order. On the 4th of November 1848 an order was ob tained that service of the conditional order on one of the respondents should be deemed good service upon them all. On the 6th of December a certifi cate of no cause was granted, and on the 20th of January, 1849, the conditional order for the appointment of the receiver was made absolute. On the 24th of June, 1847, a receiver had been appointed by certain judgment creditors of the respondent over a portion of the lands comprised in the mort gage. This receiver was extended by a Mr. Morris, a judgment creditor-the sum of £217 8s. having been lodged in court to the credit of the several matters. This was an application on behalf of Martin Morris, petitioner in the 5th matter, for the sum of £107 6s. 5d. being the amount of rent received subsequent to the 6th of May, 1848, when the receiver was extended, and prior to the 20th of January, 1849, being the date of the absolute order for the receiver on foot of the mortgage. There was also a cross notice on behalf of the Ecclesiastical Commissioners that the entire sum in court might be paid to them, as being rents received subsequent to the 28th of April, 1848, the date of the conditional order. Mr. Hughes Q. C. and Mr. P. Blake on behalf of Morris, the judgment creditor, contended that the rents were not attached by the mortgagee until the order of January, 1849, and referred to Boyd v. Burke (8 I. E. R. 660); Morrogh v. Hoare, (51. E. R. 195); Evans v. Blennerhasset (Ex. M.S.S. cited in Reilly on Receivers, 133); Ex parte Wilson, (2 V. & B. 252.) Mr. Martly, Q.C., contra, moved the cross notice for the Ecclesiastical Commissioners, and contended that where an order for the appointment of a receiver is made absolute, it relates back to the date of the conditional order, and attaches the rents from that time, and referred to Coleman v. Mason, (L. & T. 545); Barry v. Wilkinson, (3 I. E. R. An Act for rendering securities by mortgage more effectual, "Whereas by default of the punctual payment of the interest payable upon mortgages, and on account of the great delays in bills of foreclosure, securities by mortgage are fallen into disrepute; for remedy whereof be it enacted, &c., that from and after the 1st day of December, 1772, in all cases where one year and a-half's interest shall be due, mentioned, shall appoint a receiver to receive such part of a Court of Equity, upon application in manner hereafter the rents of the mortgaged premises, as shall be sufficient to pay such arrear of interest, and also the accruing interest Upon an order for a receiver under the mortgage act, 11 & 12 Geo. 3, c. 10, it is the absolute and not the conditional order which attaches the rents. By indenture of mortgage, bearing date the 8th of June 1838, and made under the 3 & 4 W. 4, to of the said mortgage money, from time to time, one halfsecure to the Ecclesiastical Commissioners of Ire- such interest due on the said mortgage shall be discharged, year when the other shall become due, until the whole of land the sum of £1090 6s. 7d., being the purchase and no longer, together with such fees or salary as shall be money of the fee and inheritance of certain lands appointed by said court for such receiver; as also the netherein mentioned. The lands of Clontibred were cessary costs out of pocket of such application, and that limited to the use of her Majesty, her heirs and out of the sums so received, such interest, salary, and costs successors, subject to redemption upon payment of shall be ordered to be paid. Sec. 2. And be it enacted by the authority asoresaid, that such order shall be made upon the said principal sum, with interest at the rate of petition and affidavit, after reasonable time given to shew £5 per cent. A considerable sum for interest hav-cause, and whether any bill has or has not been filed rela ing been permitted to grow due on foot of this tive to the said mortgage." |