the claims on it, presents a "petition" to the Commissioners, verified by the affidavit of himself or his solicitor. The petition states, in the shortest and simplest language, the date and parties' names to the mortgage or judgment; that the mortgagor had such an estate in the lands sought to be sold, and which are described by reference to a schedule annexed to the petition, as enabled him to execute the mortgage, or charge the lands by judgment or otherwise; that the petioner is owner of the charge or lands, as the case is, and states who is in receipt of the rents of the premises, and whether as mere tenant for life or absolute owner, subject to the charges thereon. If any proceedings have been taken in Chancery or Equity Exchequer, the petition briefly states the dates, and shortly the object and effect of them; and if decrees or reports have been made in these suits, refers to copies of those decrees, &c., sent with the petition to the Commissioners. The petition also states the sums remaining due on account of the petitioner's claims; whether any infants or other persons, such as idiots, married women, or lunatics, are interested in the estate to be sold, and that in another schedule has been set out the several incumbrances affecting the premises, and in whom the same are vested, according to the petitioner's information, and prays a sale of the lands in the said schedule, or of a competent part, for the discharge of the incumbrances affecting the premises. Annexed to the petition are two schedules, the blank forms of which are printed and sold by all the law-stationers, and which can readily be filled up by any solicitor; one setting out, in columns, under appropriate heads, the names of the lands; stating whether held in fee or under lease; and tenants' names, tenures, rent, and ar rears, &c., as far as is known to the petitioner. The other states, in similar columns, the dates of the several incumbrances, including petitioner's, how created, by mortgage, judgment, or otherwise; for what amount, what rate of interest, and what is due at the foot of each charge. In these schedules is presented, at one clear view, to the Commissioners, the state of the property, and the amount of incumbrances affecting it. There is then an abstract of the petitioner's title, which often is similarly concise, and stating in plain

language, stripped of technical formalities, the date of petitioner's claim, how and by whom it was created, and how by assignment, or as executor, or otherwise, it is vested in the petitioner. All these documents are verified by a short affidavit, made by the petitioner or his attorney, stating that he has read the petition, including the schedules and the abstract of title, and that he believes the said petition and schedules to be true, and that he believes the abstract to be a correct and fair abstract of the petitioner's title. Such is the form of application to the Court, and the petition, which need not be prepared by counsel, or even by a solicitor (in practice, however, it is prepared by a solicitor, and often perused by counsel, with a much smaller fee than is paid on preparing a bill in Equity), is really not much longer than the account which we have in these few lines given of it; and even with the easily-drawn schedules and abstract, is a much shorter document, more useful and intelligible, than a short bill in Equity. If the abstract is a full one, it saves expense at a subsequent stage of the matter, and hence sometimes a long full abstract is presented; but it is not at first required by the Court, and a perfect petition, schedules, and abstract may be presented for the sale of extensive estates, which, printed all together, would not occupy four columns of this magazine. The entire number for this month would not suffice to contain one such bill as was filed in Mahony v. Glengall, or in Blount v. Portarling

ton.

The petition being presented, and on which, or on any proceedings in the court, no fees or stamps are payable, accompanied with copies of any decrees or reports in Chancery or Exchequer, if proceedings were pending there, is sent in its order to one of the Commissioners, who thenceforth has the entire con. trol or management of all matters connected with or arising out of it, subject however to the right of any party to refer any matter to the full Court by a simple motion. The Commissioner reads the petition, looks at the schedule, peruses accurately the decrees and abstract, and if he sees that the petitioner is entitled to have the lands sold, makes a conditional order that they shall be sold, unless cause is shown to the contrary, within a period fixed in the

order, after service on the parties named by the Commissioners. This period is twenty-eight days, when no proceedings have been pending in a Court of Equity for a sale of the lands, and ten days when proceedings are pending, to which the persons served were made parties, and appeared by a solicitor. The Commissioner from reading the various documents sent to him readily discovers who are the parties interested or entitled to oppose a sale, and directs service of the conditional order on them, always including the person in receipt of the rents of the lands to be sold. This order being served, at the expiration of the time limited, if no extension of time is applied for by the party on whom the order is served, and no cause is shown, the order for sale is made absolute; and thus in about six weeks the entire effect of the decree to account, and final decree for a sale, is produced by the order of the Commissioners, and made generally at an expense not exceeding the costs of a single brief at the first hearing of an Equity suit. If any person insists that a sale should not take place he files a short affidavit, stating his objections, and then on a motion to the Court, and at a very trifling expense, the cause is discussed, and the petition dismissed, or order for sale made absolute.

Such is the outline of the preliminary formalities attending the mere order for sale. It is evident, however, that this is the least important part, though so great a source of expense in Chancery, and that the subsequent proceedings, arranging the mode in which the estate is to be sold, investigating the title, the sale, and the distribution of the purchase-money, are the substantial parts of the proceedings, and of these we shall shortly detail the management. Each Commissioner writes in his book the date and person who presents the petition, and every future step in the matter is also entered by him under the same head; and thus, as in a well-kept ledger, every transaction with the same is from time to time noted; the Commissioner has constantly before him a record of the commencement and progress of each matter in his chamber. The person entrusted with the carriage of the proceedings must, on the order for sale being made absolute, proceed with due dili gence to ascertain the tenants on the es

tate to be sold, who they are, how and at what rents they hold, and all other necessary information connected with the estate; and for this purpose, from such information as he can collect, he draws up a rental, and serves a copy of the part relating to him on each tenant, requiring him to object if his tenure has been improperly stated. He must also advertise, in papers having general circulation, for all parties having claims or charges on the estate to send in to the Commissioners a notice of their claims before a limited time, and must deduce a full abstract of title, from deeds or memorials in the registry, to the estate to be sold. All these steps are progressing si multaneously, and hence the rapidity of proceedings in this Court, the useless and most expensive steps of formal hearings having been discarded, and the really useful proceedings being contemporaneous and not consecutive. The Commissioners proceed, indeed, in an inverse method to the Court of Chancery. There the course was, first, a hearing and decree to account, then an order for sale; in the Incumbered Estates Court the order for sale precedes the account the investigation of title and accounts proceeds together. The abstract of title is most rigidly investigated by the same Commissioner, and compared with the titledeeds, which every one having must bring into court; and searches in the registry-offices of deeds and judgments are directed, both to prevent any imposition on the Court, and to discover all parties having by possibility claims on the lands to be sold, or on the proceeds of the sale when brought into Court. The title being approved of and searches completed, tenants' leases and other documents lodged, a posting for sale is permitted, the rental is prepared, surveys and valuations, if deemed advisable, ordered; and if no eligible price is offered in a private bidding, the estate is, after full and repeated advertisements in Ireland, in England, and at times in Scotland, sold by the Commissioners by public auction in open Court, the money lodged immediately by the purchaser, and a final schedule of incumbrances being prepared from the searches and claims, on further advertisements, the purchasemoney, after payment of costs of sale and other proceedings, is distributed to the creditors.

The full Court sits twice a-week, Wednesdays and Saturdays, for motions, at twelve; and generally has sales also twice a-week; and the Commissioners on other days sit in chamber at eleven, A. M., for routine business.

Such is an outline of the course of proceedings before this new tribunal; and we must at least admit that it has been found most effectual for the despatch of business. The amount of sales effected and the sums distributed would alone show that much has been done by them, and that the rapidity of their proceedings contrast most happily with the former grievous delays in Chancery. Indeed it will be but necessary to state that in one case-Mr. D'Arcy's—where no proceedings were pending in Chancery, an owner having family charges affecting a large property in the county of Westmeath, presented his petition to the Commissioners in December; part of the estate was sold, perfectly to his satisfaction, for nearly £50,000, and all parties paid their demands before the 10th of August; and the expenses were defrayed by the slight gain on the stock in which the proceeds of the sale were for a few weeks invested previous to distribution.

How great is the contrast in mere rapidity here presented to the cases we have enumerated, and to the hundreds of others, which, after pending for many years in Chancery, have been at length brought before the Incumbered Estates Court. So there have been many cases of partition completed by this Court since it first sat in October, 1849, and each of them, like the suit of Herbert v. Hedges, would have consumed years of time, and in costs have nearly exhausted the estate, if the proceedings had been in Chancery.

But the important question after all is, how far does this arbitrary Court give satisfaction to the public, and distribute justice to its suitor? It is admittedly superior in all the great advantages of facility and economy, as well as rapidity, to the time-preserved tribunal of the Court of Chancery; its efficiency in merely selling estates will not be denied; but has it received the confidence of the public, and have not loud and frequent complaints been made, even in parliament, of the great injustice which it was instrumental in effecting, and the ruinous sacrifices of

the estates sold by the Commissioners, and the tardiness with which they distributed the sums realised by the low prices obtained for them? Complaints have been made, and in both Houses of Parliament, but we believe without foundation. They have unfortunately assumed too general a form, and they cannot, therefore, be specially refuted, nay, even examined. There will at all times be a considerable number of persons interested in upholding old institutions, though requiring the severest amendments; many practitioners of both branches of the legal profession, who love not to deviate from the wellworn and familiar track in which their younger days were passed, and many whom mere jealousy will lead to condemn any innovations on well-established routine. The complaints of such persons, and their censures of the Incumbered Estates Court, would be readily received; and we think that the very arbitrary power with which the Commissioners are invested, and their Court being, in some respects, a departure from former principles, should entitle such complaints and censures to indulgence; but they may, if too carelessly credited, injure the efficiency of a Court whose jurisdictions they are not calculated to improve, but wholly to annul. That those complaints are not generally considered well-founded may at once be seen, from the confidence reposed in its proceedings by those most interested the owners of estates and their creditors. We have before given the number of petitions presented; and the large estates daily brought within the jurisdiction of the Commissioners, notwithstanding the celebrity of the strictures on their acts, is a fact which, with candid minds, would outweigh any censures, however loudly and often repeated, which did not particularise the instances in which error or injustice had been committed. It has indeed been frequently stated, that the estates sold by the Commissioners have been sold much below their real value, and that they have refused to permit adjourn ments of the sales. Now as to the estates sold by them having been generally sold at an undervalue, we suspect there has been a very great misconception prevailing. The Commissioners have always taken care that the conduct of the sales should be en

trusted to those most interested in bringing the estate most judiciously and profitably into the market. If the owner is petitioner, or that, by any fair estimate of the value of the estate and of the debts, he can hope for a surplus, he will, if he pleases, be entrusted with the conduct of the sale; when any contest arises as to the proper person, the owner's choice and those of the creditors will be deliberately weighed; every precaution is taken in settling rentals, and publishing advertisements to make the estates appear eligible investments; and hence it would appear that some unhappy fatality, some important causes, exist to make the estates sell badly, other than any misconduct or want of judgment in the Commissioners. They indeed have means of forming estimates of the true value of the properties sold, which the public generally are not aware of, and which, for obvious reasons, they do not always too readily circulate. They have the poor-law and Griffith's valuation for guides as to the estimated value; if those interested in the conduct of the sales require it, other surveys and valuations by most competent parties will be ordered; where receivers have been over the estates, their accounts are produced; thus the Commissioners are enabled to compare the actual produce of the estate with its estimated value, the receipts with the rental, the real with the nominal worth of the property. The attention and competition of the numerous moderate capitalists is invited by offering estates for sale in lots, which it would be utterly impossible to effect in Chancery, while large capitalists have ample choice of extensive purchases in one lot, when, from the nature and circumstances of the estate, it would seem an eligible one to be sold undivided. In many cases, and we more particularly allude to the sales of the Bodkin Galway property, and such parts of the large Portarlington estate as have as yet been offered in the market, prices have been realised ranging from twenty-two to twentyseven years' purchase, from the judicious management of the sales, and the prudence with which the lots have been arranged; and we may add, that while sales in small sections can be effected in the Incumbered Estates Court, almost without additional expense, it

would be impossible to sell in Chancery a large estate in moderate lots; and we have been assured by the highly intelligent solicitors by whom the sales of the Portarlington estate are conducted, that if they were to be sold in similar divisions under the Court of Chancery, the expenses would most probably far exceed £50,000. In the Incumbered Estates Court the expense will scarce be one-tenth of that sum.

But in forming any opinion on the prices at which the estates have been sold, it must be remembered how greatly rents have been practically abated within the last few years, though the rents nominally reserved still contribute to swell the rentals. There has been no general legal reduction of rents to suit altered prices and diminished values of produce; but when any payments of rent have been received, large temporary sacrifices have been made by the proprietors with the hope, vain, far, and distant though it was, of rents and prices, at some future period, reaching their former state, and then that they might have the tenants bound to pay the rents which were originally stipulated. But to a purchaser, as well as to the proprietor, the only correct way of estimating the true value of an estate is from the rents which have been paid, not from a rental de duced from the lettings made long prior to the present fall in prices and value of land. The county or poor. law union in which the lands are situate naturally exercises a great influence on bidders; for it is vain to tell the public that an estate is sold at a saerifice, because no more than ten or twelve years' purchase on the rental is obtained, the estate, perhaps, being in some notorious part of Tipperary or Limerick, or in the poor-law union of Kanturk or Ballina, Westport or Clifden, and the rental payable by cottiers, whose highest rent may average some ten or fifteen pounds, and whose families are receiving relief from poorrates. Now, indeed, former mismanagement of estates is severely visited, sometimes, perhaps, on innocent proprietors. The desire to create a numerous class of voters, or exact a high rental from small tenants, is now punished with high poor-rates and low prices for estates managed in such a spirit; but whenever the estates sold have been eligibly circumstanced as to

tenants and poor-law unions, the prices obtained by the Commissioners have given the most ample satisfaction to all the parties interested; and, as instances, we may bring to the recollection of our readers the estates of Mr. D'Arcy in Westmeath, of Mr. Bodkin in Galway, of Lord Portarlington, Mr. Jessop, and portions of Mr. O'Connell's estate in Kerry. Thus, out of the entire estates sold, considerably more than one-fourth has, it is well known, brought high prices.

But there have been three cases adduced by the censurers of this Court, and on which all their general condemnation is, we suspect, attempted to be justified. One, the oft-mentioned property of Mr. M'Loughlin in Mayo; another, a portion of Mr. C. D. Purcell's estate; and another, a farm of Mr. Syme's. The first was eagerly seized on the property had been sold at one and a-half!! years' purchase on the rental. Now the facts of this case, and which, though often exposed in both houses of Parliament, are still relied on as condemnatory of the conduct of the Commissioners, are these: the tract of land sold was a leasehold interest, subject to the rent of £210 per annum; it was situated on a promontory of the County of Mayo, opposite the Island of Achill, and in the line of unions, Ballina, Westport, Clifden, all insolvent; the rental, payable by wretched cottier-tenants, many of them holding, too, in common, was £600 per annum, but this was purely ideal; it had not been paid for years, and the head-rent was in arrear. Under such circumstances few would, we think, like to accept this estate as a present; and accordingly, the hardy purchaser who bought it for £600, or one and a-half years' purchase on the profit-rent, very soon discovered the extent of his bargain, paid the costs of the sale, and got discharged from the purchase. This estate was a second time sold, and then brought £450, and the second purchaser quickly followed the example of the first; and, so far from thinking the purchase a bargain, took advantage of some informality in the rental, and he too was discharged from his purchase. But in each case the proprietor and those interested in having the lands sold to the best advantage, thought the farm sold at a high rate, and wished to retain the pur

chaser; and the sympathy lavished in Parliament on this sacrifice of the estate by the Commissioners merely excited the ridicule of those parties. So, that part of Mr. Purcell's estate which was sold at about seven and ahalf years' purchase on the rental, was a leasehold interest in the county of Cork, subject to a rent of £400 per annum; the sub-tenants were in arrear, and an ejectment had been brought for part of the premises. The owner and the creditors thought the estate sold to advantage. The purchaser soon found out that his bargain was not desirable, and he, too, notwithstanding the opposition of the persons having the carriage of the sale, was discharged from his purchase on account of misdescription in the rental. In Mr. Syme's case, the farm, which sold at one year's purchase on the nominal profit rent, was offered to be surrendered to the landlord, an offer which he refused; it was deserted by many of the tenants, and was subject to a rent of £200 per annum. In truth, what have been called "sacrifices" of property under the Commissioners remind us too strongly of shopkeepers' advertisements, "selling off at a ruinous sacrifice." Whoever buys will find out his error in thinking he has got a bargain, and he will be convinced that he would have been a more substantial gainer by purchasing for a higher price a less showy article. It may, indeed, be stated as the result of all the sales hitherto effected by the Commissioners, that well-circumstanced fee-simple estates sold at a high rate, and leaseholds indifferently. The latter are not in request, as the rent to which the purchaser is subject is certain, and the profit rent in general is badly secured and uncertain in amount.

The

There have been complaints, too, that the Commissioners do not readily attend to suggestions for an adjournment, if the price offered is not clearly inadequate; but in this instance, too, we think there can much be said to justify the Commissioners. effect of adjournments is generally to depreciate the sale of the particular lot; it is an advertisement that, however flattering the description may be, there is some reason why it has not been considered an eligible purchase, or a fair price would have been offered when it was first put up; and the prac