enforcing an honest obligation can with safety be

withdrawn from the landlord.

That power in the hands of a judicious proprietor was most useful, more by way of check to the tenant than for practical enforcement. It is necessary, in a country like ours, that the former should have the most stringent and summary powers for the recovery of his rent, and of his premises, if that be unpaid; and, simultaneously with the investment of those powers upon him, should be passed a law giving the tenant the most ample security for money expended in lasting improvements.

The want of such a law before the agricultural interest had received its late shock, retarded the prosperity of the country. It was not reasonable to suppose that men of capital would expend money on a fleeting possession, and it was not just that the permanent product of their labours should altogether become the property of the landlord.

In England the same law would be quite unnecessary, for there the landlord leases highly improved premises, with an excellent habitation, in the most perfect order, for a short term. In Ireland a tenant takes possession of lands out of heart, aud either without a dwelling, or with one not much better than a pig-stye, and if he improve the land, and build a substantial house at his own expense, at the termination of his lease he is at the mercy of his landlord as to increased rent or eviction.

This circumstance prevented the outlay of capital by skilled agriculturists possessed of capital, and except the Legislature interpose, the evil cannot be generally removed in a country where the leasing powers of the proprietors are so restricted by family settlements. In an agricultural community it is a matter for grave observation that all our land rela. tions are so imperfect. There is no subject of greater practical importance for the future well-being of this country than that of landlord and tenant. If our anticipations be correct the deeply incumbered properties of the West must be sold; the buyers will, in many instances, for the sake of self-preservation, be the puisne creditors, whose capital will have been sunk in their own incumbrance, or exhausted in paying off the prior ones. They will not have means to do more than purchase the soil-the raw material-a good tenant farmer class will be required to manufacture the fabric. This preceding observation, though written relatively to one class of purchasers, admits of general application. It will not be within the grasp of the fee proprietors to improve and to build upon every farm on their properties. They must call in aid another race of men, and to them they must give reasonable inducements. There is no greater motive for human action than that which is derived from the assurance that the labourer shall reap the fruit of his labours, and that another shall not reap what he has sown.

A well-prepared digest of the law of landlord and tenant is an essential. We trust that Mr. Napier will not allow another session to pass without the devotion of his abilities and energies to this most useful undertaking, in which he can command the cordial co-operation of every well-thinking man in the community. Nor is it one of great labour or difficulty, it only requires the present materials to

HOUSE OF COMMONS. RECEIVER COMMITTEE. William Tighe Hamilton, Esq.-June 29, (Continued from p. 360.)

1380. With regard to the case of judgments for small sums, does not it appear almost necessary to abolish the remedy by a receiver for small judg ments? I think so. For instance, I think such a case as this is a monstrous hardship. The other day I appointed a receiver under order of the Court for a debt of £10, over an estate of £400 a year. That was under the Tithe Rent charge Act.

1385. Can you state what you think are the leading evils of this system as bearing upon the dealings with the tenantry?—I think the first evil to which the tenants are subject is the cost of their lease. I think that a very great hardship. A tenant to ap a pri. vate owner generally pays about £2 for his lease; but a tenant under the Court cannot get his lease for less than £6 10s.

1389. What is the next grievance of which you think that the tenants under the Court have to complain?-The next grievance is that they cannot get a lease for a fixed term. I think that it is a great hardship to the tenant that the longest lease he can get is seven years, which may determine to-morrow; and if his rent is £10 he must pay £6 10s. for the lease.

1392. Do you think the system of bidding for land a judicious one?-I think nothing can be worse; so much so, that in my office for the last two or three years I have discouraged it as much as I possibly can; and my practice is almost invariably now to direct the receiver to go amongst the tenantry, to circulate handbills in the neighbourhood, and to get into local communication with the parties likely to take; and then he sends up to me proposals from different tenants, and I hear his opinion upon these, as nearly as possible in the way in which a private owner would, through his agent; and I decide upon the most eligible party, without any reference whatever to the comparative amount that he proposes, but entirely with reference to his eligi bility as a tenant and the intrinsic value of the farm. Then another hardship connected with the mode of letting, which I think is a very great one, is that the tenant is obliged to incur the expense of a recog nizance, which is either perfectly futile, or if it is not futile is likely to be very injurious to those who are inadvertently drawn in.

1394. Does the recognizance in fact operate as substantial security?—I think not. Then there is this further hardship, that when the tenancy is de

termined, as it may be in a few months after it commences, by a sale, the unfortunate tenant has to go to the expense of getting that recognizance vacated, which he cannot do for less than £5 or £6.

1397. Chairman.] There is a natural indisposition in the Court where there has been a long established practice, without some legislative sanction to alter it?-No doubt. Another very great grievance to which the tenants under the Court are subject is the want of help when they get into difficulties; if a tenant gets embarrassed in any way it is a very fair thing that the landlord should help him, but we have no power whatever to do that; and therefore when once the Court comes over a tenant, he is put in a position that he would not be in under a private landlord. I think that forms a very important item in his grievances.

1415. Mr. R. B. Osborne.] Is there any other hardship upon the tenants?—I think the next mode in which the tenants suffer is by the way in which they are barrassed by some receivers. There is nothing more common now than for the receiver, the moment his account is passed, to rush to the tenantry, and take every possible means to collect the rent, in order to use this rent till thirteen months or a longer period, if he is not called upon, has elapsed; so that in that way, the very form of accounting acts to harrass the tenantry.

the cause; whether he is an attorney's clerk; whether he is a public-house keeper. That is according to the rule of both Courts, indicating the very low description of persons that are liable to be appointed receiver, when it is necessary to follow such a rule. 1457. That rule was made by Sir Edward Sugden, was it not?—I think it is a rule of practice rather than a written rule.

1458. Are you aware that Sir Edward Sugden laid down certain rules by which no attorney in the cause, nor attorney's clerk, could be appointed a receiver?—Yes; I only spoke of public-house keepers.

1465. Can you give me any idea what the costs of a receiver are to the estate?-His poundage is five per cent.; by an analysis of the 150 accounts passed before me, I find that the legal expenses for the recovery of rents come to about 12 per cent. upon the sum received.

1467. Would you think that 15 per cent. was too high to put it at, as the costs of the receiver?—In the case of certain estates I should say it would be a great deal more than that; in the general run of estates which have come from the hands of distressed landlords, I should say that 15 per cent. was a low average for poundage and costs.

1488. You have put in the heads of a bill; would the effect of that bill be to abolish the equity side 1444. Chairman.] With regard to legal proceed- of the Court of Exchequer, and to save the public ings against the tenantry, do you think that the expense?-It would save the public £15,400 a year, character of the proceedings usually adopted to re-taking from that whatever might be necessary for cover the arrears of rent is satisfactory ?—I think the new esablishment in Chancery, which would they are most unsatisfactory. not exceed £3,500.

1446. Supposing it were certified by the officer 1493. But if the estates now cost 15 per cent. that so much rent is in arrear, and that were really for managing, would it not be possible to have a ascertained, can you see any advantage, either to plan which would be self-supporting without chargthe estate or to the tenant, in allowing the processing those expenses upon the Consolidated Fund?—I of ejectment to be gone through, or an action, or any of those proceedings?-None whatever in the present form of those proceedings; I think it is the greatest possible advantage.

1447. Then if you were improving the system, do not you think that it might be very materially improved by allowing proper steps to be taken in a summary way as soon as you have ascertained the state of the rent account?—No question about it. 1448. And that would do away in many cases with the necessity of ejectments and distresses, and the consequent expense to all parties? Clearly; I think that the difficulties which exist in the way of ejectment now are most demoralizing to the teuants: in fact it enables them to set the receiver at defiance, and to set an example of defiance in the neighbourhood, and that sometimes is an evil of the greatest magnitude.

think so; but where you have establishments for all legal proceedings charged upon the State, it would be departing from that practice to charge these particular expenses upon the owners of the property which is so unfortunate as to be brought into the Court, and which already contributes largely to the State by stamps upon the proceedings.

1497. Would it not be possible to do the whole under the Court for seven per cent ?—I think not, because part of the system which I should strongly recommend would require a large staff of clerks and surveyors, who should be at the disposal of the Auditor-general, to go into the country, and to be as it were his eyes, to inspect the estates and report personally to him upon every question of improvement or every other matter. I think that would swallow up a very large part of the maximum poundage.

1449. Do you think that the opportunity which 1504. But in your opinion nothing can be worse they have of postponing the discharge of their liabi⚫ than the present state of the management of prolities and baffling the receiver by protracted litiga-perty under the Court of Chancery ?-Nothing can tion, is injurious in every point of view?—No ques- be worse. tion about it.

1456. Mr. R. B. Osborne.] In your Court is there any inquiry as to the qualification of a person proposed to be a receiver?—There is a verbal inquiry which is rather a negative one, whether he possesses certain qualities which unfit him for receiver; for instance, whether he is an attorney connected with

William Macartney M'Cay, Esq., June 29, 1849.

1523. Mr. R. B. Osborne.] Will you state your profession?—I am a solicitor.

1524. Are you acquainted with the management of landed property in Ireland?—Yes; I have been

practically acquainted with it for upwards of 20

years.

1526. Of what class do the receivers generally consist?—I should say that they generally consist of professional men, or men having other occupations. There was a return ordered by the House of Commons from the Courts of Exchequer and Chancery, in which the professions of the receivers were required. But I find on looking over the return of the Court of Chancery that there are scarcely any professions given.

1527. Except under the generic term "gentle

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men ?"-Not even that in some cases. But in the Court of Exchequer the return professes to be more perfect. It states that up to 1847 there were 448 receivers in that court; and this is the classification which I have made of them. There are two barris-8vu. ters, nine attorneys, fourteen merchants, five shopkeepers, twelve farmers, two land surveyors, one clergyman, one woollen manufacturer, one miller, one schoolmaster, and four hundred under the general style of "gentlemen," but not one mentioned as a land-agent. Now the Committee are probably not aware that land agency in Ireland is a profession followed by a great many.

1528. From your experience can you say whether estates under receivers are well managed, or the contrary? I should say it is impossible that they could be worse managed.

1529. To what do you attribute that mismanagement; to the system or to the receivers ?-Decidedly to the system; for although there are a great number of receivers who are totally unfit for the management of property; yet they are placed there by a vicious system. I know there are a great many receivers who are most anxious to discharge their duty efficiently, and who deplore the effects of the present system. As an instance I may read an extract of a letter received from a gentleman of the highest respectability in the west of Ireland, who is largely connected with land agency and receiverships; I thought it possible that he might wish to be examined before the Committee. This is part of his letter, and he expresses the opinion of many other receivers: "I confess, I would wish to avoid examination before the Committee on the subject alluded to, as I am still unfortunately a receiver in eight causes; I could not say anything favourable of that most vicious of vicious systems, which plunders the landlord, demoralises the tenant, and victimises the really efficient and conscientious receiver." That is the opinion of a gentleman of the highest respectability in the west of Ireland.

1532. Have you formed any estimate of the amount of property under the control of the courts of equity?—I have.

1233. What is the annual amount of rental which you consider is now under these courts?—I have no hesitation in saying, that in my opinion it amounts to two millions. I know that is much more than Mr. Hamilton estimates it at, but I think his estimate is far too low.

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whether it would be giving the Act a retroactive operation, to hold that it extends to releases made before it passed."

The learned writer has so studiously guarded himself in the expression of his opinion, that it is difficult to determine to which side it inclines; he states the doubt, and leaves it unsolved; we, however, conjecture, that he is of opinion that the Act extends to releases prior and subsequent to its passing, because he considers it "questionable whether such a construction would be giving it a retroactive operation," and affirms, that "there is nothing in the expressions used in the enacting clause, to prevent it extending to releases executed before the passing of the Act."

by the hasty legislation of the past session, which has disturbed, without settling it.

An historical sketch of the rise and progress of this mode of assurance, of its effect upon the landed and commercial interests of the country, together with a statement of the changes which have been lately made, of the different incidents attaching to the different species of judgments, and a collection of the cases bearing upon each would, we should think, be very acceptable at the present moment.

It would certainly, to the lawyer who has leisure to consider the subject, and somewhat of a philosophical turn of mind, be a subject of considerable interest, as well as of considerable practical benefit to himself in the pursuit of his profession, and, if

The Irish lawyer, who desires literary distinction by the publication of law works has, unfortunately, to earn it at his own expense, the present depressed state of the profession and of law publishing rendering the authorship of any legal work of pretension

unremunerative.

HOUSE OF COMMONS. RECEIVER COMMITTEE. William Macartney M'Cay Esq.-June 29. (Continued from p. 364.)

We entertain so sincere a respect for the sound-treated worthily, conducive to his future fame. ness of his judgment, that we arrive at a different conclusion, with considerable distrust of our own, and, as we differ from what we assume to be his opinion, we hope we have misinterpreted it; but we cannot read the whole preamble of the clause without doing violence to the English language, or feeling impressed with the idea that it relates alone to future releases. It speaks of a judgment affecting lands in Ireland, and the owner of it, being willing to release a portion of such lands, evidently refering to a future act by him, and where it speaks of retaining its validity it uses the words, "which it is intended should remain subject to such judgment." In the whole preamble there is not a single word referrable to the past, whilst every expression relates to the present or the future. And the enacting clause appears to us studiously confined to future releases; the future "shall," is the operative word. Unaffected by the Statute, the question is one of extreme nicety, and we shall look forward to its ultimate decision with interest.

great

1534. That includes minors and all?-It does. It may be necessary to explain that it is with difficulty we arrive at anything like certainty upon this point, for there is no means patent to the public or to the profession of knowing the exact amount of property under either of those courts. Even with the assistance of the return laid before Parliament, we can only approximate to it. The paper which I hold in my hand is an abstract of the return of the Court of Exchequer, which gives a rental of £155,402 a year, but that sum, I think, is much under the true amount, because it professess to give only those receivers who have passed their accounts. The Court of Chancery gives a return for each of the years, 1844, 1845, 1846, 1847, of those receivers only who have passed accounts in those years. Now the Committee are aware that the rule of account ing is, that when a receiver is first appointed he has 15 months to account, and that for each subsequent account he has 13 months. But the

One of the judges of the Court of Common Pleas was, we presume, absent during the argument, at least he did not sign the certificate, and the other members of the Court adopted the ancient practice -better honoured in the breach than the observance -of returning their certificate without assigning their reasons for the conclusions to which they had arrived. When difficult questions are thus submitted to Courts of Law it would be extremely satisfactory to learn as well the judgment as the process of reasoning which led to it. And the wholesome practice, introduced by Lord Mansfield, and sanctioned by sub-Committee are probably not aware of another rule sequent general usage, of giving the grounds of his opinion, would appear to exist as strongly now as when that ornament of our profession, by a series of masterly decisions, delivered in the most perspicuous and elegant language, laid the foundation of our commercial code. And if the remark be generally true, it would appear peculiarly applicable to cases sent by reason of their difficulty by the head of one court for the advice and assistance of the collective wisdom of another. And yet in these instances alone our Courts of Law rest satisfied with an answer to the questions submitted to their consideration, leaving to conjecture and in mystery the arguments and reasons which led to their opinion.

The present state of the law of judgments in Ireland is extremely unsatisfactory, even as amended

of the Court, that if the period for accounting happens to fall in the month of August, the time for accounting is extended, without any application to the Master, to November, I think the 10th of November, so that in the case of a newly appointed receiver whose time for accounting would expire in August, it virtually gives him 18 months, and in the case of an old receiver it virtually gives him 16 months to account, besides which the time for accounting is frequently extended by the Master, so that in those four years it is not likely that any receiver has accounted more than three times. And taking that as an average, there will appear a gross rental under the Court of Chancery of £903,883 in 1847, which, added to that in the Court of Exchequer, makes £1,059,285. That would be the result sup posing that there was the same number of receivers