before, the allowance of Irish law measures to be entrusted to English lawyers; and we blame the Irish Executive for having no Irish law officer of the crown, a member of the Imperial Legislature. It is fortuuate that the Irish bar does not want a fitting representative in the person of Mr. Napier. His report in point of style, arrangement and matter do him great credit. In the suggestions which the Committee have made so far as they go, we concur; hereafter we shall state those points which, in our judgment, make us regret that they do not go far enough. REPORT FROM THE SELECT COMMITTEE ON RECEIVERS, COURTS OF CHANCERY AND EXCHEQUER, (IRELAND.) The Select Committee appointed to inquire into the state of the law as respects the appointment of receivers of the Court of Chancery and Equity Exchequer in Ireland, and the effect of the present laws and regulations of the said Courts in the management of estates under their control, have considered the matter referred to them, and have agreed upon the following Report: Your Committee have prosecuted the inquiry entrusted to them, by a careful examination of several witnesses, whose evidence is entitled to great consideration. The late Lord Chancellor of Ireland, Sir Edward Sugden; the present Master of the Rolls, one of the Masters of the Court of Chancery, the Second Remembrancer of the Court of Exchequer, together with a member of the Irish Bar, and an Irish Solicitor,† have severally been examined. Their evidence appeared to your Committee to be so full and comprehensive, that it would be unprofitable, at this late period of the session, to prolong the investigation; nor could your Committee expect to obtain any additional information from witnesses of higher authority. It may be collected from the evidence, that nearly one tenth of the rental of Ireland is under the management of the Courts of Equity, and that there has been a gradual increase of late, by reason of the general distress which has prevailed, the want of purchasers where properties, the subject of suits, have been offered for sale, and the facility of obtaining receivers, at the instance of judgment creditors, of which advantage has been largely taken, especially where the sums due on judgments have been of small amount. The prominent evils of the present system of management under receivers appointed at the instance of creditors, are so generally admitted, that the witnesses are unanimous in its condemnation. As to the extent to which it might, and the manner in which it ought to be corrected, a difference of opinion, as might be anticipated, will be found to exist. Some of these evils are inherent in the system, whilst others are the result of abuses, much aggravated by the peculiar circumstances of Ireland and the general habits of the people. In order to apprehend clearly the effect of court management, in its influence on the condition of the estates, a classification of such as are under the courts may conveniently be adopted. The estates of lunatics and minors form the first class; the second includes other estates subject to incumbrances, whether by mortgage or judgment. There is a subdivision of this latter class, which it is also proper to notice : First, where the incumbrance and the property are of considerable amount. Second, where either is inconsiderable. In the case of estates of lunatics and minors, the Court of Chancery has a protective authority over the property, as exercising the parental functions of the Sovereign; but where the ordinary power of a proprietor is suspended, in consequence of a transfer of the estate to the control of the Court, by a creditor in the prosecution of his rights, the jurisdiction arises from the duty of the Court to protect and effectuate these rights when duly ascertained A remarkable difference in the management and condition of these two classes of estates, is on all hands acknowledged; and a further difference exists between the two subordinate classes into which the second general class is subdivided. It seems to your Committee important to investigate the source of these differences, in order to discover remedies which may mitigate, (if not abate,) the serious and increasing evils of a system which occasions private mischief and public inconvenience. In the first general class the Court has a plenary jurisdiction, for the protection and beneficial management of the property. It is frequently aided in the execution of its functions by some relative of the lunatic or minor, in conjunction with the family agent, and thus are in some degree preserved those private and kindly influences which are calculated to operate powerfully on the general condition of a tenantry. But when a creditor originates legal proceedings, and transfers the estate of his debtor to the dominion of a Court of Equity, the relation of landlord and tenant is virtually severed; pressure of claims, hostile litigation, evasion of liability, and confusion of rights generally follow; and the effect thus produced cannot but be prejudicial to the condition of the estate and the interests of all parties concerned in its prosperity. The temporary control of the court, which is given for the purpose of effectuating the rights of the creditor, cannot, in its very nature, be exercised, without regard to the object for which it is conferred; and although it is suggested in the evidence of some who have been examined, that the creditor's strict rights are subordinate to the public good, and that a system of liberal management might be allowed, at the risque to some extent of the postponement or abridgment of the creditor's demand, it is urged by other witnesses, tion called forth by the necessity of enforcing a for reasons more difficult to refute, that a jurisdicright, cannot consistently displace, or postpone as subordinate, that which in the very nature of the proceeding is primary and paramount. The inberentj urisdiction of the Court is different in the two classes and even if made co-extensive, it must still be exercised in a manner peculiar to each class, and thus it could not be equalized in its effects on both. It would, therefore, appear generally desirable, that in any case in which an estate is brought under the court at the instance of a creditor, the proceedings should be accelerated with all reasonable dispatch, and the estate withdrawn as speedily as may be consistent with substantial justice, from a juris. diction which suspends the performance of some of the most useful duties of property, while its rights are prejudicially and expensively asserted. To this important topic it will be necessary to recur, for it seems to the committee, vitally connected with the subject of the present inquiry. It may be convenient now to notice the peculiarities of the two classes of estates placed under the courts at the instance of creditors. It may be assumed that so far as the authority of the court is insufficient, the defect may be corrected, though not to the extent of securing such a course of management as might be exercised over the property of a lunatic or minor. The useful administration of any power which the court may either have or acquire, must mainly depend on the class of persons appointed to the office of receiver, and this is a part of the subject which, more than any other, requires a searching inquiry. Where the estate is large, a receiver may be obtained who can manage it beneficially; where the demand of the creditor, or the property of the debtor is small, not merely is it difficult to select a receiver of independence or capability, but it would seem to be at variance with the real design for which this remedy in such cases is usually adopted. The mischievous facility, afforded by the existing law, for appointing a receiver at the suit of every judgment creditor, and over almost every species of property, and the security for the costs of the appointment, without reference to the satisfaction of the debt, have perverted what was intended to be a cheap and convenient remedy for a right, into a vexatious instrument for accumulating law costs, unproductive to the creditor, injurious to the debtor, and prejudicial to the public. Under the difficulties and pressure of the times, a large and increasing staff of receivers of this inferior class, appear to be in continual course of appointment by the courts; for it is obligatory, not optional, to appoint a receiver when a petition is presented. In one case noticed in the evidence, a petition was presented for the appointment of a receiver where the debt was £5; another, where the annual value of the property was £10; the court had no authority to refuse the appointment in either case. It appears to your committee a matter of public policy, that the power of obtaining receivers for small demands, or over a small property, should not be suffered to continue; the witnesses are nearly unanimous in the propriety of excluding all cases under £100; whilst some of great authority intimate that a higher amount might be fixed as the minimum of debt for which this remedy should be allowed. They also concur in the opinion that the costs of the appointment should not be separated from the creditor's concur. demand, but paid (if at all) with the debt itself. In this last suggestion your committee entirely The operation of the law which allows one species of judgment to be assigned in such a manner as to give a legal title to the assignee, connects itself with the subject of the abuse of remedies against the debtor's estate. The general lien of a judgment hovering over all the property of a debtor, produces manifest inconvenience, especially when the judgment is likely to remain unsatisfied. The assignability of certain judgments in Ireland, has rendered them a current and continuing security; they are usually designated as "the common as surance of the country." The extension of the remedy by allowing a receiver to be obtained in every case, under the act commonly known as O'Loghlen's act, and the extension of the lien as a legal incumbrance and equitable charge under the act called Pigot's act, have so augmented the general inconvenience of judgments in their operation, as to make their multiplication a great and growing evil, acting on habits of improvidence, and clogging the transfer of property. A difference of opinion, however, exists as to the policy of any immediate alteration in this law of assignment, Sir Edward Sugden pronouncing that it ought not to be touched at present, inasmuch as it might excite apprehen sion in the minds of those who have been accustomed to regard an assignable judgment as a cur rent security in Ireland, and that it is impolitic and unwise to force upon a people any sudden change in their laws, against what may reasonably be sup posed to be the general feeling of the country. He suggests that by the withdrawal of the power of obtaining a receiver for small demands, and giving a year of grace to a debtor after a judgment is recovered or confessed, before the creditor should be empowered to obtain a receiver over the property, together with some other alterations, mild in their character, and beneficial in their tendency, a gra dual change might be introduced, which would not merely accompany, but encourage improved habits and feelings, and render it unnecessary to alter a law which, in the abstract, he considers to be founded on a sound principle, though open to easy abuse by improvident or embarrassed men. Your committee cannot but be impressed with the force and authority of this opinion. On the other hand, the Master of the Rolls is favourable to a policy which might render judgments an unpopular security in Ireland. He thinks that the genuine use of a judgment is perverted under the provisions of the existing law, and that men are tempted to be improvident by the facility of giving a cheap security, which, even when stripped of the inconvenience of recent remedies, obstructs fair dealing with property. Your committee have much difficulty in coming to a conclusion on this important question, but they incline to the opinion that judgments hereafter acknowledged should not be assignable at law. It occurs to your committee that the public mind is prepared for a prudent change in the course of dealing with property in Ireland, and that there is a growing disposition to discourage a system of incumbrance, which has occasioned such acknow edged inconvenience; and that on the whole it is sound policy in reforming a law which must act on the new arrangement of a large extent of property, to recast its provisions rather with a view to secure what is generally desired in reference to the future, than endeavour to satisfy feelings connected with habits of the past, which ought never to have been encouraged. ing to a responsible discretion. It appears from the evidence of Sir Edward Sugden, that the aid of the legislature is needed for this purpose; for cases have occurred before him, when presiding in the Court of Chancery in Ireland, in which he would have considered it his duty to have exercised the power of ordering such allowances, if he had possessed sufficient jurisdiction. se In reference to the letting of land under the court, it is limited by the pendency of the suit, and the course is to make a lease for seven years, pendente lite. Such a tenure is most objectionable, not merely from the shortness of the full period of the demise, but from the liability of the tenancy to be suddenly determined; in both respects it is calculated to discourage improvement, and prevent a solvent tenant from cultivating the land in a husbandlike manner with a fair prospect of advantage. The course of the court as to the letting even for this limited term must be noticed hereafter; but as it is the policy of the legislature to encourage the granting of beneficial leases in Ireland, and under a recent act the stamp duty on a lease made in pursuance of its provisions for any term not less than 14 nor exceeding 31 years, has been reduced to 1s., it would seem proper to invest the court with power to grant such a lease for an absolute term of 14 years at least, to be used wherever the court could grant it with a reasonable assurance of the solvency of the tenant. In truth your committee consider it of importance that the court should possess, so long as it has the interim control over property, the authority of an owner; but to be exercised with a cautious discretion, and so as not to occasion any undue delay in the proceedings at the suit of the incumbrancer, or unreasonably interfere with his remedy against the estate itself. It may now be convenient to consider the case in which the appointment of a receiver at the instance of a creditor is unavoidable; and in which an amendment of the system may be attempted with Some prospect of success. With regard to the condition in which the receiver often finds the property when he enters upon his office, the evil may best be remedied by the effect which an improved system of management may have, in rendering debtors less disposed to deal recklessly with their property when proceedings are instituted against them. Under the present system, it seems to be generally assumed that the appointment of the receiver seals the fate of the debtor and his property; accordingly the resources of litigation are frequently exhausted in delaying the appointment, and the interval is employed in obtaining by collusion and contrivance from the tenants of the estate all rent due and accruing. The receiver is tempted to collect as soon and account as late as possible, using the money in the interval for his private profit; and a tenantry ready to resist, unable to pay demands collusively arranged, and predisposed to baffle and evade the efforts of the receiver seeking to compel the discharge of their subsequent liabilities, cut themselves off from all opportunity of improving their condition; the difficult position of the receiver occasions a frequent application to the court, thereby multiplying costs for the benefit of the professional auxiliaries; and thus the rental of the estate is wasted by a course of improvidence and litigation. These are evils connected with the system which are the casual results of its general imperfection. The matters to which a remedy may be usefully applied, may conveniently be reduced to the two heads already noticed_ First-The want of jurisdiction in the court to exercise authority as an owner, under occasional exigencies; this defect must be remedied (if at all) by legislation. Second-The established course of the court, and practice of receivers, for the correction of which legislation is most desirable, though to some extent not absolutely essential. So far, therefore, as the nature of the jurisdiction does not occasion a difference in the exercise of the power of the court, the estate would not, under the proposed alteration of the law, be subject to an authority inferior to that possessed over the estates of lunatics or minors. The next matter of great practical importance, and perhaps most to be considered, as pregnant with the greatest amount of evil, is the ordinary course of proceedings taken in the appointment of the receiver, and afterwards by the receiver over the estate. The tendency of the evidence taken by your committee shows it to be desirable that the receiver should be resident on or near to the property, acquainted with agriculture, of independent character and personal influence. But the general practice of the court, as explained by the Master of the Rolls, in effect admits the plaintiff's solicitor to appoint the receiver. This is a fruitful source of mismanagement, from the ordinary unfitness of the person appointed to discharge the duties of a useful agent; and it inflicts much unnecessary and unjust expense on the exhausted property, by multiplying applications, on what are called statements of facts, which legalize a claim for costs, to be paid out of the estate, without any corresponding advantage. In reference to the first it is proper to observe, that although it would be advisable to confer on the court the same power as it possesses over the estates of lunatics and minors, it would not be ordinarily exercised to the same extent, for reasons already explained. There are, however, instances in which the absence of such a power produces a failure of justice. A moderate outlay for urgent repairs, an abatement of rent, solicited under circumstances which justify the request as reasonable, and other occasional allowances of an ordinary character, ought to be within the jurisdiction of the Where the Master of the Rolls has had the opcourt to sanction of its own authority, and accord-portunity of making a special order, that in appoint ing a receiver regard should be had to qualification, without reference to the nomination of the solicitor of the party having the carriage of the order, it appears by his evidence that the court has succeeded in obtaining a competent and useful receiver. The security required is frequently very large, amounting to two year's rental, so that when the appointment is about to be made a candidate procured by the plaintiff's solicitor is ready with his security, and competition is virtually excluded. It would appear that by an alteration in the time and manner of accounting, the necessity for so large a security, and in the form of a recognizance, might be avoided and this of itself would be a step in favour of competition. Forms and amount of security less difficult to complete, and equally satisfactory, might be sanctioned with advantage. Your committee agree in the opinion that it is against public policy to allow any member of the legal profession to act as a receiver, unless by special order of the court, made on notice to all the parties in the cause or matter pending, where the court may, under peculiar circumstances, consider the appointment entitled to its sanction. By a return of the receivers under the courts of equity in Ireland, which has been made to the house and referred to your committee, it appears that in many instances receivers have been appointed and are now acting in contravention of the rules of the courts. It would seem to be of importance to have every one removed who has been so appointed, and so continues to act; the costs of obtaining such removal to be paid by the receiver and any solicitor or party in the cause or matter who has procured the appointment. It would also be advisable to have the accounts of receivers inspected and balanced with convenient dispatch up to some fixed period. In the present state of the country, and the difficulties which press on proprietors, the most vigorous and efficient steps should be taken promptly to relieve property from the abuses of a system so ruinous to private rights and discreditable to the administration of justice. Your committee would recommend that the courts of equity should be aided by whatever legislation is proper to enable them to arrange and execute such a code of rules as would be likely to encourage, if not secure the selection of a competent person as receiver, wherever the appointinent must be inade. These rules might further provide for the lodgment of monies from time to time, when received, as required in the case of county treasurers, under the act of 1 Vic. c. 54; the balancing of the accounts at convenient intervals; periodical reports of the condition of the estate; and occasional inspection and report by some competent and responsible person under the direction of the court, and unconnected with any interested party. It also appears to your committee that the mode of letting lands under the court ought at once to be discontinued. The extravagant expense of a lease and its accompaniments, as detailed by Master Brooke in his evidence, is unnecessary for any purpose of policy or justice. Although not perhaps necessary to any considerable extent to direct attention to extracts from the evidence where the witnesses are so few and competent, and their testimony so relevant and clear, it may not be without advantage to set forth in this part of the the description of the mode of letting land to a tenant under the court. report "What is the course of the court with reference to the letting of lands, as contrasted with a case in which the inheritor lets land to a tenant? The re ceiver circulates handbills in the neighbourhood, stating that on a certain day in the Master's office in Dublin, certain lands will be set up to be let. The tenants may come, or send up some one to appear for them; and it is a regular auction; they bid against each other for certain farms, upon such terms as they propose, and the highest bidder carries it; and immediately they are called upon, before they leave the office, to lodge £6 48. 4d. for the lease and the recognizance, in which there must be two sureties. "In addition to the lease they have to perfect a recognizance? Yes; they have to perfect a recog nizance with two sureties, which I cannot but think is a very mischievous thing. No person will go surety for a tenant but one of themselves; and he either presents men who qualify upon oath, but really have no means, or he draws in one of that class which ought to be regarded with the greatest interest-I mean the solvent and industrious class of persons. I never knew an instance in which money was recovered from the tenant's surety; and I was always glad that it was so, for I felt that it would be a very painful thing to drag down, perhaps, the most useful man on the estate in the ruin of his neighbour; but in nine cases out of ten the sureties are persons who swear themselves to be worth so much, when they really are not; all that is a very expensive operation. This difficulty has been felt by the masters so much that they have agreed that in every case where the rent is not more than £15 they will allow a mere agreement upon a stamp to be received. We find it utterly impossi ble to induce those poor men to give this large sum of money. "Do you think that recognizances might be, without the slightest diminution of security, done away with ?-With great advantage. "Of what items is that sum of £6 4s. 4d. compounded which you mentioned as being required to be deposited?-There is £3 14s. for stamp duties, and £2 10s. for fees. The stamp duty on the recognizance is £2 148.; then on the lease, if it be for the lowest amount that is, £10 and under-the stamp duty is £1. The Master's Examiner has a fee of £1 13s. 3d. for preparing the recognizance and the two parts of the lease. There is a fee upon the enrolment in the Recognizance-office of 14s. 7d. and there is a house keeper's fee of 2s. 6d. Then, besides that, the Lord Chancellor finding that these recognizances had not been registered under Sir Edward Sugden's register of incumbran ces, directed that every lease should be registered; the expense of that is £1 3s. 3d., which is paid to the tenant's own solicitor, which I find works most vexatiously, for they used to feel that having paid this £6 4s. 4d., they had done with it; but now they find that the leases will not be received unless they further go to a solicitor, who will take them to the Register office, for which he demands £1 3s. 3d. With the exception of the stamps, are these charges peculiar to causes in Chancery ?—Yes; even the stamps are peculiar, so far as they are stamps upon the operations which go through the court. "What are the stamps upon the lease?-Two stamps of 58. on the lease, and as much on the counterpart. How many of those charges vary with the amount of the stipulated rent?—Only the two sums of 5s. each. "Then with that exception, a man taking a farm of £10 pays as much as a tenant taking a farm of £150? He does. "From your experience both at the bar and as master, do you think that the recognizance, with this heavy charge upon it, affords any valid security for the payment of rent?—I think it perfectly useless, at least in 99 cases out of 100." Your committee cannot but condemn this vicious practice, the tendency of which is to induce an im. provident competition, in a country where the possession of land is regarded as almost one of the necessaries of life; and especially where it is attended with an unreasonable amount of cost to the tenant. The various items which constitute the charge, it is to be hoped, will at once be swept away without reserve; for it does not appear why the selection of a tenant and the perfection of a lease might not be accomplished by the court at as moderate a cost as in the case of an ordinary letting under private agency. and enforce remedies in a manner consistent with justice, and calculated to promote the interests of the property. Your committee also are of opinion that the want of uniformity in the system of management under the two Courts of Equity in Ireland, and the opportunities for fraud whereby different receivers may be appointed over the same property under their concurrent jurisdiction, have materially aggravated the evils of the general system. Your committee feel much encouraged by the manner in which these evils have been exposed by all the witnesses who have been examined; affording the assurance that in carrying out prompt and practical remedies, the cordial co-operation of those who best understand the system, and are most desirous for a thorough reform of its abuses, is at the public service. Although your committee have felt it to be their duty to suggest the foregoing amendments in the existing system of management of estates under the Courts of Equity, they do not express any opinion whether the evils now so justly complained of will be sufficiently remedied by any such alterations. Nor are they to be understood as expressing their opinion that the substitution of a totally new system is not demanded by the exigencies of the case. The late period of the session at which your committee was appointed has prevented them from taking evidence sufficient to enable them to decide on the merits of the plans which have been submitted for consideration. In the Appendix will be found the draft of a bill prepared under the sanction of the Lord Chancellor of Ireland, proposing an official plan of receiverships; another plan has been presented by Mr. Hamilton, in his private capacity; and a third, prepared by Mr. M'Cay, is also to be found in the Appendix, and referred to in the evidence. On the whole, it seems to your committee, that by the exercise of a reasonable care in the selection of the tenant, and using the means now available for ascertaining the value of the land, and by inserting in the lease sufficient covenants and conditions which should provide for proper cultivation and beneficial expenditure, but prohibit subdivision or exhaustion of the demised property, the present practice of letting might be safely and usefully superseded, to the great advantage of all parties concerned Nor should any consideration connected with fees or stamp duty be suffered to preThe transfer of an estate to the dominion of the vail against the higher exigencies of the general in-court, as it is occasioned by the creditor's proceedterest of the country. It might perhaps be provided, that the recovery of rent should generally be enforced by summary process, on the certificate of the master, adjudicating on the amount of rent due. The facility of litigation, where facts are not doubted, enables a fraudulent tenant to postpone his liabilities, and an unprincipled receiver to abuse his powers, by frequent appeals to the law, which occasions the accumulation of unnecessary costs, and is mischievous and demoralizing. Where the question is, whether so much rent is in arrear, the fact is capable of being ascertained without vexatious litigation. Where it is of real consequence by a strict and just policy to cultivate, if not create, habits of punctuality, it would seem to be a suitable opportunity, in regulating the future management of estates under the Courts of Equity, to confer rights It is of obvious importance that, under the pressure of existing circumstances, the primary object to be kept in view should be to effect a gradual reduction in the extent of property under court management, and that any legislative interference should be regulated with this expectation. ing, should not be attended with any delay not absolutely required for the satisfaction of the claim. The startling amount of this class of property now under the court, and every day increasing, exceeding at least one million of the rental of Ireland, is in some degree explained by the peculiar circumstances of the country, and the trying visitation with which it has recently been afflicted. Whether some means might not be devised, by which sales might be encouraged, without peril to the interests of parties whose rights attached on property estimated at a standard of value, which cannot be largely reduced without a sacrifice of these rights, is not, perhaps, within the strict province of your committee to discuss. It is, however, an important object that sales should be facilitated and receivers discharged as speedily as can be effected without injustice. |
