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Courts of Equity can scarcely be over- sole interest is to collect as much rated. The general result inay be money as possible from the tenants, briefly stated, that they produced to and this without the least reference to proprietors the most grievous oppres- the advantage of the inheritor, while sion, to creditors the most extensive the estate is burthened with far greater injustice, and to this kingdom the most costs than are incident to ordinary alarming social and political evils. The agencies or the general management of most cautious and prudent owner, estates ; as no step can be taken by a inheriting property even slightly bur- receiver without laying a previous statethened, when once involved in the ment of facts before the Master in meshes of a Chancery suit, could never Chancery, and obtaining his sanction extricate himself; his property was for his proceedings, and the receiver's sosquandered, his family and creditors licitor cannot discourage proceedings so ruined by the wasteful delays and the profitable to himself, and without which expensive litigation which he could not his client's safety might be comproavoid, and all control over his tenants mised. The management of an estate and the management of his estate, as- by receivers has, from these causes, sumed by an irresponsible Court and been found most demoralising in its careless official receivers.
Such a influences; there is no kindly interproprietor could not by even a course or sympathy between landlord proceeding in a Court of Equity insti- and tenant; and the tenantry are getuted by himself or a friendly creditor, nerally the worst in the country, there to sell a portion of his property suffi- being a total absence of all useful sucient to defray the charges on it, for perintendence or control over them. the same expense and delay were in- These evils are confessed by persons curred, and the same clogged machinery most competent to form a correct judg. was to be worked, whether the suit ment on them—the present Master of was by the owner or creditor. All the Rolls and Sir Edward Sugden, in efforts to retrieve his affairs, when once their evidence before the Poor Law involved, were vain; and while he be- Committee in 1849; but it is unheld the gradual approach of certain necessary to confirm by authority ruin to himself, his family, and his es- facts unhappily too notorious to the tate, his creditors were equally unfor- landed proprietors in every county in tunate; a period of twenty years could Ireland. not ensure the estate being sold, and While the lands were rapidly dethe proprietor was oppressed and the teriorated under the management of creditor defrauded. We need scarcely the courts, and the tenants neglected add, that to this system of expensive and demoralised, the appointment of procedure there was but one more evil a receiver was always a great inducewhich could enhance the oppression ment to the parties in the suit to delay and injustice that was, the appoint- proceedings; the rents, such portions ment of receivers over the proprietors' of them as were collected, were brought property. Each suit produced its into Court, and served as a spoil, from receiver, and there were many more time to time, to pay interest and defray under the joint operation of Pigott's costs; and creditors who would have and the Sheriffs' Acts. No worse sys- urged their solicitors to increased dilitem can be devised for the interests
gence, rested silenced, if not satisfied, of debtors, creditors, or indeed of the so long as some part of the interest country generally, than the appoint- of their demands was paid, and exment of receivers ; and we are happy pected with more patience the longto see that by an Act which has just deferred period for the liquidation of received the royal assent, the nuisance their claims. In no case will it be of receivers, as to all future judgments, found that an estate subject to rehas been abolished. They are persons ceivers was well managed or the rents who fulfil the harshest duties of agents, well paid ; the tenants invariably fell without having any power to improve into arrear; and as instances, out of the estate of which the nominal ma
many, we may mention the Morganure nagement is confided to them. No
estate of Mr. D'Arcy of Clifden, on leases can be made, nor indulgence which, during the period it was subgiven by them to encourage good te- ject to receivers, eight years' arrears nants; and they are powerless to cor- of rent were suffered to accumulate ; rect or exclude bad tenants. Their and In re Perceval, where, in a rental of £800 per annum, the arrears due in to facilitate sales of landed estates, it 1849 amounted to £6000.
was an entire failure, Such was the unsatisfactory state of The utter inefficiency of this Act the law in Ireland when the Corn Law was exposed in the evidence to which Bill of Sir Robert Peel passed. The we have more than once alluded, given predictions that the value of land and before the Poor-law Committee of the amount of rents would be depre- 1849 ; and it became an object of cated by its influence were, unfortu- much importance to Government to nately, too soon realised. Four years of correct former errors and retrieve unexampled famine—wasteful expendi- blunders by some more successful leture of poor-rates, added their influence gislation. The hint for a measure -and rents fell nearly one-third, and more extensive in its nature, and pothe desire of possessing land anıl the tent as a corrective of the social evils value of it fell also in an equal ratio. under which this country laboured Those proprietors who before, by rigid from the difficulty of selling incumeconomy and good management, had bered estates, and from the long opsucceeded in keeping down the into- pression of the Court of Chancery, rest on the incumbrances, and were was afforded by a speech of a statesman free from the trammels of the Court now no more, Sir Robert Peel, a speech of Chancery, found themselves un- as specious and brilliant as his best efable any longer to struggle with cir- forts were, and which must be still cumstances ; their rents were unpaid, fresh in the recollection of our readers, they became unable to pay the interest from having excited into a momentary with which creditors were before con. enthusiasm to do good to Ireland, withtent, and their estates were subject- out a view to profit, the Corporation ed to receivers, and all the attend- of London. The then Solicitor, now ant evils, and they bad nothing to Attorney General, Sir J. Romilly, look forward to but the long-deferred quickly acted on the hints derived from fate reserved by the Court—a sale of the large views of the former premier, the estate when wasted under the and the Act 12 and 13 Victoria, c. 77, management of receivers, greatly de- was brought into parliament, and after teriorated in value, and with vastly receiving some useful additions and increased liabilities. It was impossi- amendments, obtained the royal asble to adjust the claims of creditors to sent 28th July, 1849. We scarcely the altered circumstances of the times; recollect any instance in which an Act and while the property, to meet their of so great importance met with such demands, was depreciated, the creditors' general approval in both houses; and claims were increased by an accumu- the
scope and object of it, apart from lation of interest. It was universally its details, were hailed with satisfacadmitted that some sharp and decisive tion by all classes in the community, legislation bad now become necessary We shall now lay before our readers to extricate all classes, proprietors and the chief objects of the Act, the mode creditors, from the ruinous delays of in which it has hitherto been worked, Chancery, and to atone for long past and its probable effects on our social neglect, if that indeed were possible, system. The Act now familiarly known by recent vigilance over those interests as the Incumbered Estates Act, em. which had before been fatally neglect- powered her Majesty to appoint, dured. Accordingly an Act to facilitate ing her Majesty's pleasure, three perthe Sale of Incumbered Estates in Ire- sons to fill the office, and to be styled land was passed in the year 1848 ; but • The Commissioners for Sale of Inthis statute, Il & 12 Vict., c. 48, cumbered Estates in Ireland." The owing either to the original error in duration of the appointment was not the conception of giving summary to exceed five years from the passing jurisdiction to the Court of Chancery, of the Act. The Commissioners were or to the rules framed for its work- to be a Court of Record, and were ing, was wholly inoperative; and it is empowered to frame general rules for sufficient to state that under its pro- regulating the proceedings under the visions not a single estate was sold. Act; which, when approved of by the Some attempts were indeed made to Privy Council, and enrolled in the avail of the powers conferred by it, Court of Chancery, were to have the but no sale had taken place, and it was same effect as if they had been enacted generally considered that as a measure by authority of parliament. They were
also directed to frame and promulgate may be judged of from this one fact, forms of application and other direc. that by the 231 petitions first presented tions for the guidance of the suitors. no less than 400 suits in Equity, pendThese and some other provisions, prin. ing for sale of the lands comprised cipally incidental to the proper dis- in the petitions, were stayed. Other charge of their duties, may be briefly powers, such as of exchanging lands, stated. The important powers con- apportioning rents, and partition, fided to them were, that the Commis- were given to the Commissioners, and sioners were empowered in a summary the cheapness and expedition of their way, on the application, within three proceedings in partition cases can be years from the passing of the Act, of advantageously contrasted with the an owner or incumbrancer, as defined
partition suit of Herbert v. Hedges, by the Act, on land or leases, to sell in the Court of Exchequer.
It was the lands or leases for payment of the commenced in the year 1829 ; procharges affecting them; and that the secuted with diligence ; was termieffect of a conveyance executed by the nated in 1842; and the stamp-duty Commissioners should be to pass the alone paid on two decrees was over fee-simple and inheritance of the land, £100. The entire effect of this suit thereby expressed to be conveyed, sub- would have been obtained from the ject to such tenancies, leases, and Commissioners in a few weeks, and at under-leases, as shall be expressed an expense not greater than that of therein, discharged from all former and the stamps paid on the Exchequer de. other estates, rights, titles, charges, and crees. pcumbrances whatsoever, of all per- Such is a very brief outline of the sons, including Her Majesty and her powers vested in the Commissioners; heirs, whomsoever. Similar stringent and when we add, that their decrees effects were given to the Commissioners' and orders were to be absolute and conveyance of a leasehold interest, and conclusive, no appeal lying from their thus the Act confers on the purchaser, decision, save on their permission; in the execution of his conveyance by that their general orders were to have the Commissioners, a perfect unques- the effect of Acts of Parliament, and tionable parliamentary title. The im- that the title given by them is concluportance of this provision is immense ; sive against the world, it is at once mani. the saving to purchasers will, in each fest how large, and extensive, and arbi. instance, be very great; that to the trary were these powers, and how great estate will not be inconsiderable; but was the trust confided to Government the increased confidence from increased in the selection of men to fill the office security has, in every case, added of Commissioners in this new tribunal. much to the present value of property, Baron Richards, one of the judges of the while the new owners will have a title Court of Exchequer, Mountifort Longmarketable with perfect readiness and field, Esq., Q.C., LL.D., Professor of security to future purchasers. The Law in our University, and C. J. Commissioners were to investigate the Hargreave, Esq., who killed a similar title, might sell by public auction or situation in the University of London, private sale, and might distribute the were nominated Commissioners, and purchase-money; or in fit cases pay they immediately applied themselves the sum realised by the sale into the to framing rules and forms for the reCourt of Equity, in any suit pending gulation of the proceedings in their there. But there were other provi- court. These rules received the sancsions of nearly equal importance to tion of the Privy Council on the 17th those enumerated. On the order for October, 1849, and thence may be sale being made by the Commissioners, dated the constitution of the Court; they were directed, by certificate under and in a few days after the Commistheir seal, to notify their order to the sioners sat publicly for the dispatch of Courts of Equity in which any proceed. business, and have since continued ings relating to the lands to be sold their labours without intermission. were then pending; and then all pro- We shall now state some of the ceedings for or in relation to a sale startling results exhibited by the workunder the decree of said Court were ing of this tribunal. The torrent of to be stayed. The importance of this litigation long pent and dammed up in provision, and the relief to incumbered the CJurts of Equity found a free out. proprietors and long-delayed debtors, let; inheritors oppressed with receivers, and nearly ruined by the expensive now writing, forty.five additional peti. litigation to which their property was tions have been lodged, many of them subjected; creditors before hopeless of for the sale of large estates_one in. ever realising their demands, all sought cluding a rental of £14,800 per annum, relief in the exercise of the powers by the owner, a titled individual. vested in this untried tribunal. The But the really frightful state of liti. number of petitions or applications for gation in which creditors have been sale made to this Court from 17th Oc- Tong kept in the Court of Chancery, tober, 1849, to 1st August, 1850, is the difficulties, almost reaching to im1,085; and of this number, those by possibility, of recovering just and well. owners amounted to 177—very nearly ascertained demands, will be most forone-sixth of the whole. The rental of cibly illustrated by reference to a few the estates thus sought to be sold by cases now brought before the Comthe nominal proprietors, anxious to be missioners, to redress, if possible, thu relieved of their burdens, was £195,000 wrongs of former generations of liti. per annum, and the incumbrances af
gants. In one matter, in which the fecting them amounted to £3,260,000! estate is now brought before the InThe rentals of the estates included in cumbered Estates' Court, called In re the 1,085 applications amounted to Hamilton, a series of Chancery receiv£655,470 18s. 7d., and the debts to ers has been over the property for the £12,400,348.
last seventy years, the original bill Now, certainly this shows a state having been filed by the great Lord of things which called loudly for Mansfield in the year 1781, to raise remedy. The estimated rental of the amount of a clear, uncontested the entire of Ireland was, in 1841, mortgage; and since that time every £5,600,000. The latest poor-law species of bill named in Lord Redesvaluation makes the net value of all dale’s “ Treatise on Equity Pleadings," landed property rateable to the re- and facetiously enumerated by Mr. lief of the poor, £13,187,421 5s. 8d.; Keogh in the House of Commons, has and whether we regard the one calcu. been filed; and now, after this litigalation or the other, we here have pre- tion, at how vast an expense it is sented to us, in the schedules of these almost needless to hint, the estates, petitions, facts showing how consider- which should have been sold more than able a portion of the landed estates in half a century since, are brought for this kingdom was only nominally the sale before the Commissioners. In estates of those before considered as other cases the litigation, or rather the proprietors, and how vast and vain effort at deriving some benefit pressing were the evils of those courts from the Courts of Equity, commenced of equity by which persons were allow- more than forty years ago.
In re ed to have the nominal proprietorship Lysaght, the first bill was filed in in the soil, and those really interested 1802, and after a sacrifice of succes. were prevented from recovering the sive estates for the mere costs of the debts due to them. Even had the rush proceedings, any one of which would into this new court ceased on the 1st have paid debt and costs if sold in August, the number of petitions pre- this court, the remnant is now brought viously presented, and the great ex- into the Incumbered Estates' Court. tent of interests affected by the work. We may incidentally mention many ing of the Court, would have justified others, in which the earliest generation and even demanded its institution, and of litigants have long passed away; would have shown the desire to avoid and after forty years' unsuccessful atthe Court of Chancery, even by re- tempts to realise demands by sale, a sorting “to the ills we know not of." new generation, heirs to the claims But there does not seem as yet any and suits, have brought their peti. likelihood of a pause or check to the
tions before the Commissioners. Re number of petitions which will be pre
Cooke_first bill filed in 1811; and sented before the expiration of the since that there have been five differ. three years limited for that purpose ; ent suits, which were all heard together for though it might be naturally thought in the case of Bennett v. Bernard; and that the largest properties and most the only questions in the case arise embarrassed estates would at the first from the long litigation. Re Sir J. be brought before the Court, since the Bourke the first bill was filed in 1st of Aug. to the 12th, the day we are 1817; and since that there have been
fourteen bills in all, and the Commis. sioners have now the task of selling the estates which those suits vainly sought to do. Re Mansfield-first bill was filed in 1801 ; and this property now is one of those to be sold by the Commissioners. Re Knox—the first bill was in 1811; and thousands of pounds were first squandered in the great case of Scott v. Knox. But we will not weary our readers by enumerating such instances of long and fruitless litigation. We must claim credit, however, for not having selected them with any particular care, and also that they will believe us that they are not solitary instances of the long-protracted and hopeless attempts made by creditors to realise their demar
in the courts of justice, miscalled equity. The files of proceedings before the Commissioners will, on inspection, show many and frequent instances of similar delays and ruinous proceedings; and from the cases brought into the Incumbered Estates Court it would appear that a creditor could not reasonably hope to realise his demand by sale of his debtor's estate in Chancery, in a less term than twenty years. Now, when it is re
membered that the costs of a suit, which are always in proportion to the time it is pending, are borne by the estate, the grievous oppression on creditors, the absolute confiscation of property of debtors necessarily caused by the proceedings in Chancery, the mere saving of time and expense will appear a benefit to the suitors in this new court which can scarcely be too highly estimated.
But we must state the results of the working of this new Court in the first year of its operations. There have been sales of property under it, up to 10th Aug., realising £748,474 12s. 10d. These sales have comprehended 99 estates, and 360 lots. The amount of money brought into court, produced by these sales, to the same date, is over £400,000, and of that a sum of £240,000 has already been distributed. The Commissioners have made 817 absolute orders for sales, and 1,226 miscellaneous orders, including those in distribution of money:
The following table gives a concise view of the several counties in Ireland as at present affected by the Commissioners' sales :
Cities, and Towns.
5,1000 6,945 0 0 Limerick 47,267 100 Wicklow... 12,457 9 18,240 0 0
2,450 0 0 62,345 0 0 L. Derry... 2,650 0 0 Total ... £748,474 12 10
5,620 0 0 Longford... 32,275 0 0 11,680 0 0 Louth
SUMMARY 5,655 0 0Mayo 11,250 0 0 Leinster ... 366,510 15 5,750 0 0 Meath 140,989 4 6 Munster 242,452 17 15,160 0 0 Monaghan 740 0 0 Ulster
27,670 00 Queen's 57,442 19 10 Connaught 111,841 0 93,591 0 0 Roscommon
0 Total of 45000 Sligo
sales to 49,745 0 0 Tipperary 18,540 7 6 Aug. 10, 3,325 0 0 Tyrone
inclusive 748,474 12 10
We shall now explain to our readers the mode in which the business is conducted in the Incumbered Estates Court, and the beneficial differences in its proceedings from those in Chancery.
A person who has an incumbrance affecting an estate, for example a mort
gage, or judgment, or portion of a family, or other charge, on a fee-sinple property, lease for lives renewable for ever, bishops' lease, or lease for a term exceeding sixty-one years; or the owner of such a property which is subject to such an incumbrance, and who wishes to sell the estate to discharge