HC Deb 27 April 1853 vol 126 cc647-57

moved for leave to bring in a Bill to facilitate the sale, partition, and exchange of lands by the Court of Chancery in Ireland, and the recovery of monies secured by recognisance in the said court. The hon. and learned Gentleman said that the House was no doubt aware that an Act of Parliament which had produced a great effect in Ireland, called the Encumbered Estates Act, would expire, so far as regarded its purpose of receiving petitions for the sale of lands, in the space of two months. He had asked the Secretary of the Lord Lieutenant of Ireland what course the Government intended to pursue in reference to this important Act, which affected a great portion of the landed proprietors of Ireland, and involved in its operation many millions of money; and he had been told in reply that it was intended to consult the Lord Chancellor on the subject. This question had been under the consideration of the late Administration; and when a proposal for the renewal of the Encumbered Estates Act had been brought forward last year, a pledge was given that this large and difficult subject should be fully inquired into, and that before the lapse of another year a Bill should be introduced on the subject. The misconception under which they had heretofore laboured was this, that they had feared to apply the machinery which they possessed to accomplish a great and manifest advantage. When Sir John Romilly introduced this Bill originally, he told the House that it was proposed that the money produced by the sales should be paid into the Bank of Ireland in the name of the Commissioners, and that it should be paid amongst the various parties who should be entitled to it without delay. Now, the House might desire to know why it was necessary to interfere at present—what was the mischief which was complained of—and what was the remedy proposed? He would state, in the first place, that he wished to cast no reflection whatever upon the Commissioners of the Court established under the Act. Parliament itself had created a Court without sufficient machinery to accomplish its purposes, and the effect of one of the rules of the Commissioners had been to introduce an amount of business into the Court which it now confessed its inability to dispose of. The Commissioners, notwithstanding their great care and assiduity, had been utterly unable to carry out the necessary operations of the Act, in consequence of the vast mass of business that was brought before them for their disposal. It might astonish hon. Members to be informed that there were now 1,000 estates waiting for sale in that Court. Up to the 1st of April last the total value of the property sold in the Court amounted to 8,657,685l.; the sum paid over to parties by the Court was 4,926,194l.; and the money locked up, which was not distributed, was 3,731,491l. Indeed, it seemed, from a communication which he had received that day, that the sum of money under the control of the Commissioners at present was about 4,000,000l. There had been no fault on the part of the Commissioners of the Court, who had been diligent, attentive, and laborious; but one of the rules of the Court had produced immense evil. It was the custom of the Court of Chancery to pay costs to parties according to the priority of their debts; the earliest encumbrancer was paid first, and then the second encumbrancer, and so on, until the funds were distributed in the order of the dates in which the claims of the encumbrancers had been created, and the costs in like manner. But in the Encumbered Estates Court the attorney who brought the estate into the Court obtained the management of the sale even against the will of the owner, and against the will of the majority of the encumbrancers; and the amount of his costs was the first charge paid out of the proceeds of the sale. That arrangement manifestly afforded a direct inducement to attorneys to bring estates into the Court, even in cases in which the parties, on whose behalf they appeared, had, from the late date of their encumbrances, no chance whatever of being paid the amount of their claims. He would state an instance in which that rule had been applied. When the magnificent estates of the Earl of Kingston had been on the point of being sold, that noble Earl, as well as the members of his family, and parties having encumbrances on the property to the amount of 279,000l., had proposed that the management of the sale should be confided to the Messrs. Stewart and Kincaid, who had agreed to discharge the duty on what had been considered by the parties most interested to be very advantageous terms. Mr. Longfield, the Commissioner to whom they had made their application, had said that if he were only to consult his own inclination in the case he should agree to their wishes; but he had added that he could not depart from the rule that the attorney for the first petitioner should be entrusted with the conduct of the sale; and that decision had afterwards been confirmed by Mr. Baron Richards, the head of the Court. The result was that all the arrangements which had been entered into with the Messrs. Stewart and Kincaid had been set aside, and the sale of the property had been left in the hands of Mr. Sadlier, the solicitor for the first petitioner. It would be unjust, however, to the Legislature not to state the great advantages which had been conferred by the Encumbered Estates Court upon Ireland. First of all, the Court was enabled, on a simple petition, to deal summarily with estates; but, secondly, the power of the encumbrancer to sell was confined to cases where the interest on the charges amounted to one-half the rent of the estate; and, thirdly, the great advantage of the Court was, that it gave a Parliamentary title to the property. Thus, then, they had two tribunals—the Court of Chancery and the Encumbered Estates Court—the one being a long and the other a short process; the one a dear and the other a cheap mode of procedure. Could these two systems last in Ireland? He believed that they could not. The state of things in the Encumbered Estates Court had now come to this: That every estate on which money was borrowed in Ireland was brought into that Court, and the consequence was an enormous accumulation of business. He (Mr. Whiteside) had recently been present at a consultation in a cause in which it was a great object that as much time should be gained as possible. A solicitor who was also present suggested that the property involved should be put into the Encumbered Estates Court; and on his (Mr. Whiteside's) remarking that that would be a rapid process, he was told that it might have been so formerly, but that it was now ten times more tedious than the Court of Chancery. He was informed that it would be impossible for a solicitor to obtain a rule for the Bale of an estate in the Encumbered Es- tates Court for six months from the present time, and therefore it was proposed to take the business into the Court of Chancery, for the purpose of avoiding the delay which would be incurred in the Encumbered Estates Court. He would now proceed to state the remedy which he proposed. In 1850, Sir John Romilly introduced a Bill into Parliament, entitled the Summary Petitions Jurisdiction Bill, by which all the old machinery of bills, reports, answers, demurrers, and other useless and tedious forms, were swept away. The effect of this reform had been of a very salutary nature, and showed that the old machinery of the Court of Chancery, when properly applied, would work as well as the new machinery of the Encumbered Estates Court; so that a person could now go into the Court of Chancery, if his case fell within that Act, for the recovery of 50l. In fact, the Act for the Encumbered Estates Court, which was passed in 1849, was not in its procedure so good, so quick, or so useful as the Summary Petitions Jurisdiction Act, which was carried in 1850. Now, the simple purpose of the Bill which he then sought permission to introduce, was, to enable the owners of estates to avail themselves of this short, cheap, and quick process, and to graft upon the Court of Chancery all the principles which had been found so useful in the Act for creating the Encumbered Estates Court. He proposed also to extend those principles. He should further observe that the latter Court could not appoint a receiver to an estate; and, although that arrangement would offer an advantage if the sales were immediately effected, it operated in cases of delay very prejudicially against encumbrancers whose claims to the rents continued to be totally ignored for a period extending over more, perhaps, than twelve months. At present the owner of an estate could not go into Chancery at all—he could not file a summary petition with relation to the sale of his estate—nor could he go into the Encumbered Estates Court unless the interest of his encumbrances swallowed up a full half of the annual rental. Now, his Bill proposed to extend the principle of the Encumbered Estates Act to these excepted cases, and to enable the owner, whether he was encumbered to a great or little extent, to sell a portion of his estate in order to save the remainder. Further, an estate could not be taken into the Encumbered Estates Court if the encumbrancer had a life estate, and they could not sell a lease if it was for a shorter period than sixty years. It was true that the Court of Chancery was open to such cases; but they would have to contend with all its present dilatory and expensive proceedings. He proposed to put such cases upon the same tooting with ordinary encumbered estates. There was another point in this Bill which he thought would be of incalculable benefit to the landed interest in Ireland. It was found that what was called a Parliamentary title did, in favourable times, enhance the value of an estate to the extent of one, two, or three years' purchase, so that the purchaser was sure he was done with Chancery proceedings for ever. Now, if the Encumbered Estates Court was empowered to give a good and valid Parliamentary title, he could not see why the Court of Chancery should not have similar power. There were at present five Masters in Chancery, who must be paid, though it was probable that their present duties would soon cease. His Bill proposed that one of these Masters should have power to sign a conveyance just as one of the Commissioners in the Encumbered Estates Court now did. The Masters were, all of them, trained men, methodical and industrious, and therefore he proposed no new office, nor the expense of an additional sixpence; but when they were told from a quarter favourable to the Encumbered Estates Court that that Court would not be able to wind up the business that was now before it for ten years to come, his Bill went to remedy so great an evil. He proposed to give all who chose the power to transfer their petitions from the Encumbered Estates Court to the Court of Chancery, under the Summary Petitions Jurisdiction Act, and then the House would see how quickly the mass of petitions at present before the Encumbered Estates Court would be reduced. He ought, perhaps, here to mention the authority on which he introduced this Bill. When the late Government was in office it was referred to the late Lord Chancellor of Ireland to consider how far the Court of Chancery could be reformed and made to do the work of the Encumbered Estates Court, and the present Bill was, in truth, chiefly framed according to his directions. The Encumbered Estates Court cost a great deal of money, and it never was intended to be a permanent Court, of which, perhaps, he could offer no better proof than this, that there was no appeal from it. That was a dangerous and unconstitutional principle. It was intended, he supposed, to remedy a great evil; but still, to sell a man's estate, and give him no appeal—to deprive a first encumbrancer of his priority and give him no appeal—that was a dangerous principle. What, then, was the principle of this Bill? If the Master in Chancery ordered a sale, there was the Master of the Rolls on the spot to appeal to—there was the Lord Chancellor, also, ready to determine an appeal on the spot—so that the object of this Bill, in fact, was to bring into one Bill all that was good in the Encumbered Estates Court, and in the Summary Petitions Jurisdiction Act. Now, he would state one reason why the Encumbered Estates Court ought to be called on to wind up their business. Ireland was not a rich country, and it could not afford to have 4,000,000l> of its capital locked up from the creditors, waiting the decisions of a Court that would be occupied for ten years to come, eepecially as new burdens were about to be laid upon it by the Chancellor of the Exchequer. It was necessary to allow the three Commissioners of the Encumbered Estates Court leisure to do that which Sir John Romilly said was their principal object—the distribution of the proceeds of the sales among the creditors. By empowering the Masters in Chancery to sell, they would in fact have five Encumbered Estates Courts, and they might be all sitting on the same day, and the purchase deed would be contained in a few lines. If that were so, and if the Commissioners proceeded to distribute the money that was now locked up, they would speedily work out the object of the framers of the Bill, which was the transfer of the greatest possible amount of land in the shortest possible time, and at the same time giving a Parliamentary title so as to enable the land to command the highest possible price in the market. His Bill had the further object of facilitating the recovery of money secured by recognisance in the Court of Chancery. He proposed to abolish all the old absurd proceedings of scire facias, pleas, demurrers, &c, and to proceed by an order served from the Court to show cause why the money should not be paid; and if no sufficient answer was given, then to make the order absolute. He begged to say that he introduced this Bill in no spirit of hostility to the present Government, for he believed that, whether in or out of office, it was the duty of every man to do the best he could for his country. There was one subject which he ought to mention. The Encumbered Estates Court was presided over by one of the Judges of the land, and in consequence Baron Richards was often unavoidably absent from his own Court, the Court of Exchequer—he never went circuit—he never sat in the Central Criminal Court, and so it had happened more than once that a single Judge sat in that Court to hear an appeal from his own decision. Baron Richards had a large and ample salary for the duties of an office which he could not discharge; he had also an additional salary as Judge of the Encumbered Estates Court. He trusted such a state of things would not be permanent, and would not be drawn into a precedent, for it was contrary to the constitution that the Judges of the realm should have anything to hope or to fear from the Government of the day.

Motion made, and Question proposed— That Leave be given to bring in a Bill to facilitate the Sale, Partition, and Exchange of Lands by the Court of Chancery in Ireland, and the recovery of Monies secured by recognisances in the said Court.


said, that the authority to which the hon. and learned Gentleman ascribed the Bill—that of Mr. Chancellor Blackburne—must carry great weight in the opinion of every one; and therefore Her Majesty's Government were disposed to receive the measure in the spirit in which the hon. and learned Gentleman had stated that he intended to propose it, when he said that he did not bring it forward in a spirit of hostility to the Government. The Government had a scheme under consideration; and, therefore, they could not pledge themselves to the measure of the hon. and learned Gentleman, nor could they promise to give him any facilities for carrying it on; but they were prepared to bestow on it the fullest consideration.


said, he was compelled to advert to the remarks made by the hon. and learned Member for Enniskillen (Mr. Whiteside) with reference to Mr. Baron Richards. That learned person was present in the Court of Exchequer when his services were required. When Sir John Romilly introduced the Encumbered Estates Bill it was necessary to place a bold, experienced man at the head of the Court; and the Government of the day wisely selected Baron Richards, a man of matured judgment. The additional emolument Baron Richards derived from sitting front one year's end to the other, eternally at work without vacation, was 800l. If he (Mr. Fitzgerald) was to understand that the Encumbered Estates Court was to be absorbed by the present Bill in the Court of Chancery, he should feel himself bound to give the measure his most decided opposition. The Court of Chancery was at present actually blockaded with business. Public opinion would not be satisfied with less than a permanent Encumbered Estates Court, and not only an Encumbered Estates Court, but a Court having a like jurisdiction with reference to unencumbered estates. The Encumbered Estates Court showed that the technicalities which surrounded real estate might be swept away without danger, and that there was no reason why real estate should not be made as marketable property as any other. Why the Encumbered Estates Court had so much business before it at present, was because the Legislature, never calculating on such an extent of business, had not provided it with a sufficient staff. The evil was to be remedied, not by abolishing the Court, but by increasing its staff. It had been said that the Court had been used for purposes of delay; but he would give an instance to the contrary. There was an equity ease, in which final decree was given in 1811—the first sale taking place in 1824—in which the proceedings were afterwards found erroneous, and the purchaser discharged, and in which, with bill, cross bill, revivor, and new tenants in tail coming in every day, the proceedings came, in 1852, to present such a mass of confusion as nobody could disentangle. That case was brought into the Encumbered Estates Court, by which the property was forthwith sold, and the proceeds distributed. The statement that 4,000,000l. were locked up in the Court was erroneous. The sales had exceeded 8,000,000l.; the sum distributed 6,000,000l.; 2,000,000l. were in bank, and 606,000l. had not yet been brought in.


said, he could assure the House that a measure of Chancery reform would be most welcome to the landed interest of Ireland, whichever side of the House it came from. At present the unencumbered proprietor was in a worse position, as regarded the sale of his laud, than the encumbered one, inasmuch as the latter could sell in the Encumbered Estates Court, and give a Parliamentary title, whereas the former could not convey any such title through the Court of Chancery, and was consequently impeded in his endeavours to borrow money, which, with a Parliamentary title, he could readily do. He should support the measure of the hon. and learned Member for Enniskillen.


said, he thought some misappreheusion existed with respect to what had been said of Baron Richards. There wa3 no doubt that Baron Richards was asked to take that place which he occupied at the head of the Encumbered Estates Court. He was a Judge of great experience in the Court of Exchequer, and discharged his duties with great assiduity. What the hon. and learned Member for Enniskillen (Mr. Whiteside) had said cast no imputation on Baron Richards, but was merely a statement that he could not be in two places at the same time. There was also a misapprehension in supposing that the intention of the Bill was to absorb the Encumbered Estates Court. What the public desired was, to have facility for sale and security for title, and they had a right to expect that as much facility and cheapness as was consistent with the administration of justice should be secured in any Court of competent jurisdiction—that the title should be a Parliamentary one—and that the decretal title of the Court of Chancery should be equally efficacious with the title given under the Encumbered Estates Act. As a Member of the Irish Privy Council, to whom appeals lay from the Encumbered Estates Court, he could bear his testimony to the care and diligence with which titles were examined; Parliamentary efficacy was added to a real and well-examined title. He had heard it remarked that it would be an actual advantage to have an estate encumbered for the purpose of effecting a sale through the Encumbered Estates Court. The object of the Bill, however, was not to absorb but to extend the facilities of that Court to the Court of Chancery.


said, it was quite unnecessary for him to enter upon any vindication of the learned Judge who presided so ably as Chief Commissioner of the Encumbered Estates Court, and to whose invaluable services testimony had been already borne on both sides of the House. It was, however, right he should mention, that the hon. and learned Member for Enniskillen (Mr. Whiteside) was mistaken, in asserting that Baron Richards had at all neglected or had failed to discharge his duties as Judge of the Court of Exchequer. He attended assiduously to the business of that Court during the whole of term time, which, however, occupied only about twelve weeks of the year. His after hours during those twelve weeks, and the entire residue of the year, were devoted to the business of the Encumbered Estates Court, and to chamber motions, which he heard in the absence of his brother Judges upon circuit. For all this extra labour, his additional emoluments scarcely exceeded 700l. a year, as he had accepted a much lower remuneration than the salary of 3,000l. a year, which was provided by the Encumbered Estates Act, for the Chief Commissioner; and he also paid for the services of an extra Judge to go circuit in his place. By these arrangements a considerable saving had been effected to the public. It was also a mistake to state that the business of the Court had been inefficiently discharged. The reverse was notoriously the truth, and was, indeed, demonstrated by Returns he had moved for, and which were recently supplied to the House. From those Returns, it appeared that out of 2,692 petitions, lodged for the sale of estates up to the 1st of April instant, no less than 2,668 were already fiated by the Commissioners, leaving only twenty-six petitions upon which no order had been pronounced. The petitions upon which conditional orders only had been made did not exceed 136 in number. The total produce of the sales was 8,790,917l., of which sum 6,181,448l. was already paid out, and 606,159l. was not yet lodged, leaving in Court a sum of 2,003,312l. (not 4,000,000l., as erroneously stated by the hon. and learned Gentleman); and a great portion of that sum was, in truth, allocated, though not yet paid out. There were 173 owners, whose estates had been sold upon their own petitions. The total number of estates sold was 917, which were distributed among 3,428 purchasers. The salaries of the officers on the staff of the Commission amounted to 7,030l; or, including the salaries of the three Commissioners, to about 12,000l. a year; for which small annual expenditure so great amount of business had been done, and of social good effected. He quite admitted that, upon the first institution of that Court, much individual hardship had been inflicted; but that hardship had, in a great measure, passed away, and might be altogether removed, by enlarging the powers of the Court, and enabling them, among other improvements, to authorise partially encumbered owners to borrow money on their estates upon a Parliamentary title, in the manner suggested by the noble Lord the Member for Bandon (Visct. Bernard), and which had been previously urged upon Parliament by a numerously signed petition of Irish landowners, presented to both Houses in the year 1850. He had himself given notice of a Bill for the 10th of May next, to facilitate further the transfer of land in Ireland; and by that Bill he should propose to perpetuate the jurisdiction of the Encumbered Estates Court with greatly enlarged powers. He had some experience in the proceedings of the Court of Chancery; and he believed no Court could be worse adapted for facilitating the sale and transfer of land. It had abundance of other business to transact more suited to its peculiar machinery; and he should altogether object to the idea of transferring to it the jurisdiction of the Encumbered Estates Court. At present, however, he should not oppose the mere introduction of the proposed Bill, but would reserve all further observations on the subject for a future occasion.


said, he had never conversed with any person, either professional or connected with the landed interest in Ireland, who was not of opinion, not only that it was desirable, but that the time had come for a retransfer of that extraordinary, however necessary, jurisdiction of the Encumbered Estates Court to the ordinary tribunals. If the Encumbered Estates Act had worked good, it was through the zeal and ability of the Judges who had administered it. He hoped steps would be taken for a rigid and careful examination of titles in Chancery similar to that which we had in the Encumbered Estates Court.

Leave given.

Bill ordered to be brought in by Mr. Whiteside, Mr. Napier, and Lord Naas.

Bill read 1°.

The House adjourned at ten minutes before Six o'clock.