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Frish Jurist

No. 35.-VOL. I.

JUNE 30, 1849.

The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of
Law and Equity in Ireland, are as follows:
ROBERT LONG, Esq.,
and

JOHN PITT KENNEDY, Esq., Bar-
risters-at-Law.

Court of Chancery, including Bankruptcy Appeals

..........

Rolls Court......

Equity Exchequer......

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(WILLIAM BURKE, ESQ., and

WILLIAM JOHN DUNDAS, Esq., Barristers-at-Law.

CHARLES HARE HEMPHILL, Esq. and WILLIAM HICKSON, Esq, Barristers-at Law.

Bankrupt Court...... ROBERT GRIFFIN, Esq. and W.G. CHAMNEY, Esq. Barristers-at-law.

DUBLIN, JUNE 30, 1849.

-A BILL "to amend the law of judgments in Ireland," which will be found elsewhere in our present columns, has been brought into the House of Commons during the past week, the provisions of which, if enacted in their present shape, will rank among the most important statutes of the session, repealing the 9 Geo. 2, c. 5, and the 5 Geo. 2, c. 14—the acts giving power of assigning judgments, the 5 & 6 W. 4, c. 55, s. 31, and 3 & 4 Vic. c. 105, s. 21, which gave creditors the power of appointing receivers by petition over the lands of their debtor-the statute of Westminster, 13 Ed. 2, c. 18, and 3 & 4 Vic. s. 19-so far as they relate to the time at which the sheriff is to find the seizure or possession of lands by the defendant, (which, after the 31st of December, 1849, is to be the period when the writ of Elegit is delivered to the sheriff for execution, instead of, as heretofore, the entry of the judgment,) and repealing the 3 & 4 Vic. c. 105, s. 22, by which judgments were made a charge upon land.

Whether benefit will be derived from those portions of the contemplated Act which deprive a creditor of the power of assigning his judgment, and make it to be no longer a charge upon the lands of his debtor, we apprehend, will create much difference of opinion. The difficulties thrown in the way of the transfer of land, in consequence of the number of judgments affecting property in Ireland, operated most injuriously both upon debtor and creditor, the expense of clearing the title from these charges being great.

It had been also a matter of doubt, whether the release of a judgment over part of the lands of the debtor did not extinguish it as against the residue ; but this has been set at rest by the 98th section of

PRICE SPer Annum, £1 10 [Single Number, 9d.

Court of Exchequer
Chamber.

.........................

JOHN BLACKHAM, Esq., and
A. HICKEY, Esq., Barristers-at-
Law.

(FLORENCE M'CARTHY, Esq., and
SAMUEL V. PEET, Esq.,
Barristers-at-Law.

Queen's Bench, including Civil Bill and Registry Appeals......... Exchequer of pleas, in- CHAS. H. HEMPHILL, Esq., and cluding Manor Court WILLIAM HICKSON, Esq., Barand Registry Appeals. risters-at-Law.

Common Pleas .........HAMNEY, Esq. Barristers-at-law. ROBERT Esq. and W. G. ROBERT and W.G Admiralty Court..... {CHAMNEY, Esq. Barristers-at-law

the 11 & 12 Vic. c. 48, (the Incumbered Estates Bill of last session ;) and a judgment may now be released as to part, and be preserved as to the rest of the land which it bound.

Much of the evil connected with this species of security arose from the want of a single and proper registry; this has been removed by Sir Edward Sugden's last act, 7 & 8 Vic. c. 90, an act for the protection of purchasers, which, for the purpose of binding purchasers, rendered it necessary that every judgment should appear on the same registry; and no purchaser is affected, even though he have otherwise notice of the existence and validity of the judgment. Another evil arose from the universality of the judgment binding every existing interest in lands, and every future interest. And a still greater practical evil, was the facility of placing a debtor's lands under under the controul of a Court of Equity for a trifling debt of £5 or £10; and this was much enhanced by the defective and ruinous system of managing estates by absentee receivers; and by a court which was powerless for improvement, and unfitted to assume the duties of a landlord over an impoverished or rack-rented tenantry.

These evils were curable by limiting the amount of debt for which a judgment creditor could obtain a receiver, and by improving the system of managing estates under the control of the Court. But despite even them, judgments were a favourite security in Ireland; they were the common assurance of the country; any change in the laws affecting them required caution, practical knowledge, great care, and deliberation.

That part of the bill which deprives the creditor of the power of appointing a receiver for judgments to be obtained after the 31st of December, 1849, appears, we think, very objectionable.

We believe, the policy of the legislature in proposing this measure was, to render the mode of

proceeding upon judgments for the recovery of debts less facile, and the security less valuable, and thus drive capitalists to lend their money upon mortgage security. Even admitting the policy of the measure to be well founded, there appears to be considerable doubt as to its well-working. The remedy by elegit is still left open to the creditor. This is objectionable. That proceeding is more expensive to the debtor, and less satisfactory to the creditor. The sheriff having found by inquisition the metes and bounds, cannot deliver actual possession, but only such seizure as will enable the creditor to maintain his ejectment. The costs of these proceedings the debtor must bear, and perhaps those of litigated accounts, as to how much of the profits of the debtor's estate the creditor should or should not have received without default. is at the uncontrolled mercy of his creditor. His estate lets for less than the value, as the creditor can give no certain tenure, and is precluded from abating rents, making allowances or improvements, as all would be charged against him in the account, as so much that might have been received by him towards the liquidation of his demand.

He

The policy of the measure being, as we have said, to prevent the borrowing of money upon judgment security, and supposing it fully effectuated by the proposed measure, there still must be a very large number of judgments in debt and damages, in actions in the superior courts; decrees, orders, and rules of the Courts of Equity, Law, and Bankruptcy, which have, and under this bill are proposed to be invested with, the effect of judgments entered after the 31st day of December, 1849-which cannot be said to come within the evils to be remedied, they not being strictly money advances. On all these, if execution against the body or goods be unavailing, the creditor must resort to his elegit. This could, we think, be better and less expensively done through the means of an improved system of receivers; for which purpose a committee of the House of Commons is, at this moment, collecting evidence as the foundation of a measure for the improvement of the receiver system. What we would propose is, that all persons obtaining a judgment in an action prosecuted in a superior court of law, and all persons having a money demand under such decrees, rules, or orders, as would have the force of judgments, and which judgment or demand, exclusive of the costs of obtaining such judgment or decree, &c., should not exceed £100, should still have the power of appointing a receiver; and it might be provided that all persons whose judgments, under a certain amount, should be founded on a warrant of attorney, should not have this power. This, with an improved system of receivership, and a reduction in the expenses of the petition, would work beneficially for creditor and country.

Whilst on the subject of receivers, though perhaps not within the scope of our present subject, we would suggest, that, whilst the amount of the judgment over which a receiver could be appointed should be limited in the one direction, to preserve the policy of the measure under consideration, and for the benefit of debtors a receiver should not be

appointed, when the amount of the judgment ob tained by confession was less than £100, or the income of his property available for the purpose of payment less than £50. In such case a summary power of sale, on petition to the Master of the Rolls, or Lord Chancellor-who should be enabled to give a parliamentary title-would be most desir able. A measure of this nature, instead of interfering with, would work in the direction of the present bill, by facilitating the transfer of land.

If the intention of the legislature was to abolish the system of receivers in toto, we would not advocate their retention for this purpose alone; but independently of their existence in causes, receivers will be still appointed under the mortgage acts, and for at least twenty years under the 5 & 6 W.4, and 3 & 4 Vic.

Independently of the policy of the bill before us, we have never seen one which, on a cursory glance, discloses a greater number of legal doubts. The first section repeals all those portions of the 5 & 6 W. 4, and the 3 & 4 Vic. 105, relating to receivers under the judgment acts, save so far as they relate to judgments or decrees, &c., entered into before the 31st of December, 1849. Suppose a judgment entered in March, 1849, revived within twenty years, could a receiver be appointed on the judg ment of revivor? This, we apprehend, will raise a serious question, which, we believe, has not been satisfactorily settled, and will be found discussed in the cases of Farrell v. Gleeson, (11 Cl. & Fin. 702); and Ottiwell v. Farran, (10 Cl. & Fin. 319.)

In the next place, under the provision in this bill there is no method whatever in proceeding upon a recognizance, except by bill. The 31 sec. of the 5 and 6 W. 4, c. 55, enacts that no grant in custo diam shall be made after the passing of that act, except in trust for the crown; a receiver cannot be appointed upon any recognizance entered after the 31st of December, 1849. So that there will be no summary made of proceeding on a recognizance entered into after that date.

The 2nd section enacts that the sheriff shall deliver execution unto the party, in that behalf suing, of such lands, &c. as the debtor, at the time when such writ of elegit is delivered to the sheriff, had any disposing power. The 3 and 4 Vic. c. 105, extended the statute, West. 13, Ed. 1, c. 18, by conceding to the creditor the power of extending the whole of the debtor's lands, but did not repeal it, nor does this act. So that a question may arise whether the creditor may not still have his execu. tion for the moiety, the enquiry being as to what lands the debtor was seised or possessed of, as to the moiety, at the time of the entry of the judgment instead of the delivery of the writ to the sheriff under this act.

The 3rd section leaves the equitable rights of judgment creditors as they existed before the passing of the 5 and 6 W. 4, c. 55.

The 4th section preserves the rights of judgment creditors after the 31st of December, 1849, with respect to the administration of assets, as they are at present.

The 5th section is a valuable enactment, giving

judgments a preference to such conveyance, as under the statute of Frauds, 10 Car., 1 Stat., 2 c., 9 Ir., would be deemed void against purchasers for money, or other good consideration.

The 6th section gives decrees and orders of the Court of Chancery, and of the Equity Exchequer ; and rules of the courts of common law; and all orders of the Lord Chancellor, or Master of the Rolls; or of the Court of Commissioners of Bankruptcy; or of the Lord Chancellor in matters of Lunacy, to be made after the 31st of December, 1849, the same efficacy as judgments entered after that date will have by virtue of this act.

The 7th section gives the same force to judgments of the inferior courts removed to the superior, as the last section gives decrees and orders, &c.

The 8th section gives the power of framing new writs.

Looking at the general frame and policy of this bill, with the exceptions stated, we think this is one of a class of measures which have been introduced without due consideration. That portion of it which takes away the power of appointing a receiver and re-introducing the exploded system of elegits, and the taking possession of the debtor's lands subject to an account in a court of law, we consider mischievous in the extreme. It is a recurrence to a bad system, fraught with the most extensive national evils. We hope the Irish Members will make a stand against the Bill. They will deserve the greatest censure, if it does not meet with a reasoning, well-considered, but most determined opposition.

The measure before us is sweeping, and will be received with great alarm by every professional man and every judgment creditor in Ireland.

THE 21st general order of the Court of Chancery, 1848, directs, "That when the plaintiff shall make a party to the suit, any person against whom no account, judgment, conveyance, or other direct 11 relief is sought; or any person having a demand founded upon a recognizance or judgment, who shall not be in possession of the land or property, the subject of the suit, or some part thereof, and shall require such party to appear and answer the bill, the costs so incurred shall be paid by the plaintiff, &c."

ceived any of the proceeds of the estate, in discharge of their demands, can be considered within the meaning of the rule in question, as "creditors by judgment or recognizance in possession of the land or property the subject of the suit."

If a suit be instituted in a court of Equity, and the land, the subject of the suit, be liable to more than one judgment debt, and the owner of oneprior to the filing of the bill-have appointed a receiver by petition under the 5 & 6 W. 4, c. 55, and the 3 & 4 Vic. c. 105, over the whole or a portion of the land, and though the receiver be in the actual receipt of the rents and profits, and the subsequent creditors have extended that receiver to their own judgments, a question may arise as to whether the subsequent creditors, not having re

In practice, we believe, it is usual to make such persons parties to the suit, and, perhaps, in the absence of judicial authority, it is the safer course -the inconvenience accruing from payment of their costs, if they should be held to be unnecessary parties, being less than that arising from their absence, if necessary. Following the analogy of the law and practice of Elegits, for which the receiver, under the statutes mentioned, is substituted, the better opinion would appear to be that until the creditor receives a payment on foot of his demand, he is not in possession within the meaning of the order, except he is either the creditor appointing the receiver and having a priority, who, in that case, must be taken to be in possession from the completion of the appointment of the receiver, or having originally extended the receiver, is the next in order to be paid, the demand of the prior creditor being satisfied, and the creditor accounted with by the receiver. In these cases the receiver being in perception of the rents for the benefit of the creditor it must be taken to be his possession though no money be actually paid him.

Before the passing of the 5 & 6 W. 4, c. 55, generally known as the Sheriff's act, if a judgment creditor issued an elegit, and went into possession, and another creditor of the same nature issued a second

elegit, he could not get possession of the moiety already extended; if his judgment were of the same term as the first, the sheriff would give him the other moiety; if not, a moiety of that moiety (Cro. El. 481), that is, a fourth of the whole. And if the whole of the lands of the debtor, by two elegits of the same term, or by successive ones of different terms, were to come into the possession of creditors, sheriff would return to any subsequent elegit, “no no other creditor could go into possession, as the lands," (Imp. office of Sheriff, tit. Ex. Elegit.) And since the passing of the 3 & 4 Vic. c. 105, sec. 21, the debtor's bonds, no subsequent creditor could get possession till the first were paid off.

which enables the creditor to extend the entire of

The 5 & 6 W. 4, c. 55, sec. 31, enacts, that any person entitled to sue out, or who has already sued out a writ of elegit, upon any judgment in any of the superior courts of law, &c., may apply by petition to the Court of Chancery, or to the Court of Equity Exchequer, for an order that a receiver may be appointed of the rents and profits of all lands, tenements, and hereditaments which he would be entitled to have extended or appraised under a writ of elegit. This enactment plainly substitutes the receiver for the elegit. The creditor must not only be in a position, with respect to his legal proceedings, to issue an elegit, but he can have his receiver over such property alone, as he could have extended under an elegit; and on examination of the multifarious cases on the appointment of receivers under

The analogous rule is the 9th of the Equity Exchequer this act, the courts will be found to have acted strictly orders, 1844. in accordance with the decisions in elegit matters. The

subsequent act, 3 & 4 Vic. c. 105, s. 19, extended the jurisdiction of the court enabling them to appoint receivers over property which, neither under the former act, nor by elegit could the creditor reach. With this exception neither the 5 & 6 W. 5, nor the 3 & 4 Vic. alter in any way the nature of the receiver's position as the mere representative of an elegit creditor in possession, and when extended by a second creditor, who could not get possession in consequence of the possession of a prior creditor, he was in the same position as if the second creditor, having kept his elegit alive by continued returns, until the first being paid off, the sheriff was enabled to give him possession. So, under the provisions of these acts, a continuing statutable right to go into possession by each creditor who might extend him to his demand according to his priority, is vested in the receiver; and the inclination of the authorities appears to be in this direction. In Morrogh v. Hoare, (5 I. E. R. 195,)

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it was decided that where there was a fund in court, or in the hands of a receiver appointed at the instance of a judgment creditor, it should be treated as if it had been realized by the judgment creditor himself when in possession under an elegit, and that it consequently should be paid to him, notwithstand ing a claim by a prior specific incumbrancer. And in Hanley v. Langford, (5 L. Rec. 2 S. 203,) the court-where it appeared on the face of the bill that the judgment creditor had proceeded by petition for a receiver, but was disappointed in recovering his demand, in consequence of objections raised, and that the whole demand was still due-expressed an opinion that it need not be averred that he had issued an elegit; such proceeding being equivalent to the issuing execution at law-Mr. Baron Foster observing, that "the creditor was in the same situa tion as if he had issued execution, and there were a return of nulla bona. The court had, in fact, told him there were nulla bona.”

LEINSTER.

B. Pennefather.
Jackson. Baron Richards.

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21st June, 1849. "remedies of creditors against the property of

"debtors, and for the further amendment of the

A BILL TO AMEND THE LAW CON-law, and the better advancement of justice in CERNING JUDGMENTS IN IRELAND.* 66 Ireland," it was enacted that it should be lawful for the sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, should be directed at the suit of any person upon any

judgment which, at the time appointed for the commencement of that act should have been recovered,

or should be thereafter recovered in any action in any of Her Majesty's superior courts at Dublin, to make and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments including lands and hereditaments, which might be of copyhold tenure, as the person against whom execution was so sued, or any person in trust for him should have been seized or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person should, at the time of entering up such judgment, or at any time afterwads, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, in like manner as the sheriff or other officer might then make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit was sued out, which lands, tenements, rectories, tithes,

in Ireland, and the more effectual audit and pass-rents, and hereditaments by force and virtue of such

ing of their accounts; and for the more speedy
return and recovery of fines, fees, forfeitures, re-
cognizances, penalties, and deodands; to and abo-
lish certain offices in the Court of Exchequer in
Ireland; and to amend the laws relating to grants
in custodiam and recovery of debts in Ireland;
and to amend an act of the second and third years
of His present Majesty, for transferring the powers
and duties of the commissioners of public accounts
in Ireland to the commissioners for auditing the
public accounts of Great Britain,' it was enacted,
that it should be lawful for any person entitled to
sue out or who had already sued out a writ of elegit
upon any judgment recovered in any of His Majesty's
courts at Dublin, or to issue or who had issued ex-
ecution in any suit or proceeding on any recogni-
zance there, to apply by petition to the Court of
Chancery, or to the Court of Exchequer at the
Equity side thereof, for an order that a receiver
might be appointed of the rents and profits of the
entire, and not of a moiety only, of all lands, tene-
ments, or hereditaments which he would be entitled
to have extended or appraised under a writ of elegit,
or extended, seized, or taken under a writ of levari
facias, or other proceeding on such recognizance,
or to have a receiver thereof appointed by that
court extended to that matter, and it should be law-
ful for the court to appoint or extend a receiver ac-
cordingly over the whole thereof, or over so much
thereof as should appear to it sufficient for the pur-
poses of paying the sum due on such judgment or
recognizance: and whereas by an act passed in the
fourth year of Her Majesty's Reign, intituled "An
"act for abolishing arrest on mesne process in civil
"actions, except in certain cases, for extending the

execution should accordingly be held and enjoyed
by the party to whom such execution should be so
made and delivered, subject to such account in the
court out of which such execution should have been
sued out as a tenant by elegit was then subject to
in a court of equity; and it was enacted, that it
should be lawful for any person entitled to sue out
or who had already sued out a writ of elegit upon
any judgment recovered in any of Her Majesty's
courts at Dublin, or to issue, or who had issued ex-
ecution in any suit or proceeding on any recogni-
zance there, to apply by petition to the Court of
Chancery, or to the Court of Exchequer at the
equity side thereof, for an order that a receiver
might be appointed over any lands, tenements, rec-
tories, tithes, annuities, rents, or hereditaments by
that act made liable to be seized, extended, ap-
praised, or taken in execution on any such judg-
ment, or to order that any receiver appointed before
the passing of that act over the property of any
judgment debtor might be extended to the matter
of such new petition, and that in proceeding under
the said act of the sixth year of King William the
Fourth and the act now in recital the said court of
Chancery and court of Exchequer at the equity
side thereof should have power to appoint or extend
a receiver in a summary way, on a petition at the
instance of such person, over any property of such
judgment debtor which such creditor would or could
make available for the payment of his judgment
debt by filing (after a writ of execution had been
issued and returned at law upon such judgment) a
bill in a court of equity, or by any writ of execution
at law, or (subject to the proviso therein-after con-
tained) by petition under the provisions of the act
now in recital, and it should be lawful for the said
courts respectively to appoint or extend a receiver

Note-The words printed in Italics are proposed to be

inserted in the committee,

Whereas an act of the Parliament of Ireland was

"

passed in the ninth year of King George the Second,
passed in the ninth year of King George the Second,
intituled an act for the more effectual assigning of
judgments, and for the more speedy recovery of
rents by distress and an act of the Parliament of
Ireland was passed in the twenty-fifth year of King
George the Second, intituled an act to explain and
amend an act passed in the ninth year of the reign
of his present Majesty, intituled "an act for the
⚫ more effectual assignment of judgments, and for
the more speedy recovery of rents by distress," so
far as the said act relates to the assignment of
'judgments and statutes, and to prevent great in-
conveniences that frequently happen to the suitors
of the Court of Chancery by the death or removal
of a six clerk or six clerks of the said court, and
to enable grand juries to make presentments for
the clerks of the crown and peace: and whereas
by an act passed in the sixth year of the reign of his
late Majesty King William the Fourth, intituled
an act for facilitating the appointment of sheriffs

Prepared and brought in by Mr. Solicitor General, Lord John Russell, and Sir William Somerville.

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