HC Deb 22 July 1853 vol 129 cc685-96

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."


said, by this Bill it was intended to renew, for a period of two years, the presentation of petitions for the sale of incumbered estates in Ireland. He was altogether opposed to this extension of the power of the Commissioners. There were already arrears of business before the Commission which could not be disposed of under five years, and he was decidedly opposed, therefore, to any renewal of their powers by which the Commission might add to that amount of arrears. He had no objection to giving the Commissioners power for five or ten years to wind up estates now in the Court, and wipe off arrears, and he believed it would require ten years to do so. But, after all, the Bill before the House applied only to a certain class of cases, for, in order to have the advantages of the Act, the estate must be incumbered to the extent of one-half; for if the estate was only incumbered to the extent of one-fourth, the debtor must be sold out according to the ancient practice of the Court of Chancery. In wishing to prevent the continuance of the power in the Commissioners to receive petitions, he did not desire to prevent the cheap, easy, and expeditious transfer of land in Ireland; quite the contrary. Lord Chancellor Blackburne's principle had been to combine the short, inexpensive, summary process of the excellent Chancery Regulation Act of Sir John Romilly, with the cheap conveyance and simple Parliamentary title of the Incumbered Estates Act; and it was this principle which he (Mr. Whiteside) wished the House to adopt in preference to the renewal of the Incumbered Estates Court. What was the condition of that Court? It was an entire mistake to suppose that the proceedings in the Encumbered Estates Courts were either expeditious or inexpensive; they were quite the reverse. While those Courts, indeed, were dealing with the 900 old suits which had been inquired into, and of which all the facts and circumstances had already been ascertained by the Court of Chancery, they went on smoothly enough, and the exercise of their jurisdiction, though ruinous to many a fine old family, was productive of benefit to the public; but when after having disposed of these old Chancery suits, they became no longer useful supplements to Chancery, but Courts proceeding, from the outset, on their own account—when they came to deal with cases which they had to sift for themselves, their proceedings were slower and dearer than even those of Chancery had been. At first estates were sold in six months after the petitions were lodged; but now it required three months even to get a "posting;" then came the sale, and then the battle for the proceeds. He had documents in his hands—the return obtained by the hon. Member for Ennis among them—which proved that the proceedings in the cases before these wonderfully expeditious Courts lasted, from petition to posting, from posting to sale, from sale to payment of money into Court, and from payment of money into Court to the distribution of the money, not less than between four and five years. It might be asked how did it happen, notwithstanding this, that so much business was brought into the Court? One reason was this:—the Legislature had given power to the Court to make rules which should have the force of an Act of Parliament; and in pursuance of that power the Court had framed a rule to the effect, that the attorney who first brought the petition into the Court should be paid all the costs of working up the case to a sale. The result was, that the attorney, for perhaps the fortieth creditor, although he had not the slightest chance of getting a farthing for his client, was induced by the temptation of getting costs for himself to file the petition and swell the business of the Court; and this he was enabled to do even in the face of the objections of all the prior creditors. That was one reason why so much business was plunged into the Court. Another result was, that other creditors, and even the owner himself, rushed into the Court in order to secure the carriage of the sale themselves. He had asked the Court to rescind that rule, and to adopt one he had himself carefully framed on the principle that the creditors should be paid their costs on the same principle that they were paid their debts, and that they should not be allowed costs at all unless the Commissioners were satisfied that the petition was presented with the bonâ fide intention of obtaining payment of the debt. But his application had been refused. The Encumbered Estates Court was an anomalous and exceptional tribunal, which ought not to exist except on the broad principle stated by Sir Robert Peel; that it was a desperate remedy to meet a desperate state of things. That state of things did not now prevail; and, he contended, a Court of this kind should not be continued a moment longer than necessity required. What was the use of continuing this Court after it had accomplished the special object for which it had been instituted? His proposition was, that the Court should forthwith proceed to wind up all the sales before it. There was a considerable number of sales in arrear; and, though the land market was now high, they had been stopped for the year. He was informed that there was in the hands of the Commissioners not less than 2,500,000l. undistributed; and the loss of interest sustained by the delay in the distribution of the money in the hands of the Commissioners amounted to 75,000l. a year. There were yet other estates waiting to be sold. Would it not then be much better that the Commissioners should proceed to wind up the business now before them, than that fresh business entailing further delay should be accumulated upon them? His complaint against the present Ministry was this—that if they only had exercised one-tenth of the ability and energy in devising a remedy for the grievances of his country that they had employed in imposing fresh taxes upon it, things would not have been in their present unsatisfactory state. Why did they not adopt the measure which he had proposed, or something similar, for the reforming of the Court of Chancery, and enabling it to execute the duties which at present devolved upon the Encumbered Estates Court? They might be told the Court of Chancery was overwhelmed with business; but he had in his possession a letter from a most respectable solicitor, who stated that the petition for the sale of certain property was lodged on the 27th of April, but had not been filed in July; whereas if he had presented a petition in Chancery, under the 15th section of Sir John Romilly's Act, by this time probably the account would have been taken and the sale arranged, He (Mr. Whiteside) complained that when power had been given to three Commissioners to sell off, it might be, all the landed property of Ireland, the right of appeal had been denied to those who might consider themselves aggrieved by the decision of the Commissioners. It was true the Act provided that the Commissioners might grant an appeal if they chose; but they might also withhold an appeal whenever they liked. In this respect a principle was adopted with regard to Ireland which the law officers of the Crown dared not attempt to apply to England or to Scotland. But even if the Commissioners consented to grant an appeal, to whom was it taken? Was it to be carried to the Lord Chancellor or to the House of Lords? No; the appeal was to what was called the Judicial Committee of the Privy Council in Ireland. He objected to that tribunal, on the ground of its uncertainty, for he considered that all questions of property ought, for the sake of uniformity, to be determined by the same tribunal. If a sum of 10,000l. was at stake in the Court of Chancery, the appeal was to the House of Lords; and if the same amount was at stake in the Encumbered Estates Court, why should not an appeal be afforded to the same tribunal? When he had been last in Ireland he had seen a document signed by members of the Bar, comprising Whigs, Tories, Radicals, Roman Catholics, and Protestants, stating their conviction that the Court was held in an improper place, out of the reach of the general Bar, of the public, of the proprietors, and of the cre- ditors. The fact was, that this Court, which was appointed to deal with millions of property, was placed at one extremity of Dublin, while the other Courts were at the opposite extremity, and the Judicial Committee of the Privy Council sat in the Castle. He suggested that the Encumbered Estates Commissioners should have any time they pleased to wind up their business, and that power should be given to the Court of Chancery, by a short Act, to deal with all new cases. He would move that the Committee on this Bill be deferred for a week, in order that an opportunity might be afforded for considering another Bill on the paper relating to this subject, the Sale of Land (Ireland) Bill.

Amendment proposed— To leave out from the word 'That' to the end of the Question, in order to add the words this House will, upon Tuesday next, resolve itself into the said Committee'—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, the hon. and learned Gentleman had stated various reasons in favour of his own proposition, but not one why the House should not now go into Committee upon the present Bill. He confessed he was at a loss to know what was the object of the hon. and learned Gentleman in the speech which he had just addressed to the House—whether it was to attack the Encumbered Estates Act, or to praise it—whether it was to assail the Court of Chancery, or to eulogise it—whether it was to obtain some simple system for disposing of encumbered estates, or to have a variety of very complex systems. He was certain of this, however, that the hon. and learned Gentleman had led the House astray as to the most material facts and circumstances relating to the Encumbered Estates Court. That could easily be proved from papers on the table of the House. The first point to which the hon. and learned Gentleman had referred was the length of time it took to get a sale in the Encumbered Estates Court. The hon. and learned Gentleman had endeavoured to persuade the House that a long time elapsed before an order for the sale of an estate in the Encumbered Estates Court could be obtained. But what were the facts as they appeared from returns on the table of the House? The number of petitions for sales since the establishment of the Court was 2,692; and the number of petitions fiated by the Commissioners was 2,668. From another re- turn, it appeared that a few had been dismissed, and that the number of petitions on which no order had been made, was 31. He thought that those figures showed that the hon. and learned Gentleman had not been quite correct in his statement. There was one remarkable fact with respect to the Encumbered Estates Court, which the hon. and learned Gentleman chose to forget. The Court was established in July, 1849; the period for receiving petitions was three years. The hon. and learned Gentleman was a high officer of the Crown last year, and the first act of the Government whose law officer he was, had been, to introduce a Bill to continue this much-condemned Court. But the hon. and learned Gentleman wished to entrust the Court of Chancery with the business of the Encumbered Estates Court. Now it appeared from a return that the number of suits over three and under five years in the Court of Chancery at the time the Encumbered Estates Act came into operation was 219; over 5 and under 10 years, 364; over 10 and under 15 years 167; over 15 and under 20 years, 89; over 20 and under 25 years, 46; over 25 and under 30 years, 31. Therefore they had all these suits, which had been in the Court of Chancery for this number of years, liberated by the Encumbered Estates Court within the space of three years. He had a return of the sales by that Court; the total amount of purchase money paid into the Court since its establishment was 8,790,000l.; of this, 4,936,000l. had been distributed; and there remained to the credit of purchasers, 1,245,000l. The hon. and learned Gentleman complained that the carriage of the proceedings in the Court was left in the hands of the first petitioning creditor, no matter how small his claim on the estate might be. It was true that any creditor might present a petition, but the Commissioners had the power to transfer the carriage of the proceedings to any person they thought fit to appoint. The hon. and learned Gentleman said there was no instance of the Court exercising such power; but he (the Solicitor General) begged to remind him that it had been exercised in several cases—amongst others, in the sales of the estates of the Earl of Portarlington, of the Earl of Glengall, and of Mr. Martin. And it should be remembered that in the Court of Choncery, the moment an order was made for the sale of property, the costs relating to the sale were ordered to be borne out of the general fund, and not in the order of priority of the parties demanding the sale. The hon. and learned Gentleman had endeavoured with boisterous rhetoric to persuade the House that practically there was no appeal from the decisions of the Commissioners; but he (the Solicitor General) begged to remind him that the Act provided an appeal to the Judicial Committee of the Privy Council; and in practice, no appeals that were fit to be allowed had ever been refused by the Commissioners. He agreed with all that had been said by the hon. and learned Gentleman as to the necessity of Chancery reform; but Her Majesty's Government wished to prepare a Bill for the improvement of that Court before any additional business should be cast upon it. He trusted that no further obstruction would be thrown in the way of the present Bill.


moved the adjournment of the debate on the ground of the impossibility of discussing the subject at that late hour, two o'clock.


intimated his wish that the House should come to a decision on the question that the Speaker should leave the chair, with the understanding that the Committee should then report progress.


said, that even at that late hour he must ask for a short time the attention of the House. He was very unwilling to give a silent vote—the more unwilling as while he intended to support the proposal of the Government, he yet could not concur in all that had fallen from his hon. and learned Friend the Solicitor General for Ireland. He believed now, as he had done at the time, that the institution of the Incumbered Estates Court was a grievous wrong. But, retaining that opinion, he must consider, and ask the House to consider, all that had occurred. In 1849 that Court had been established, not, it must be remembered, as a part of the regular judicial system of the country, but as an extraordinary remedy for an extraordinary emergency—to meet, in fact, the state of things alleged to exist in Ireland in the accumulation of incumbrances upon estates. He objected to it then, on the ground that it was in effect forcing a Hale of all incumbered property in Ireland at a time when the circumstances of the country made it utterly impossible to expect purchasers for such a vast mass of property at a fair price. This was the great evil it inflicted. Events had fully justified this objection. Estates had been sold at ten or twelve years' pur- chase. Extraordinary powers also were conferred upon the Court, only excused even by those who proposed the measure by the nature of the circumstances it was designed to meet. By the original constitution of the Court the power of presenting petitions was limited to three years—the powers of the Court to sell estates and to distribute the proceeds were to continue for five years, The power of presenting petitions must cease in July 1852. Last year the Ministry, of which his hon. and learned Friend (Mr. Whiteside) was a law officer, proposed to continue the right of petitioning the Court for one year. He (Mr. Butt) had resisted that proposal upon the ground that the Court, being exceptional in its character, ought not to be continued beyond the term of its original institution. He divided the House against the proposal of the late Government—he was opposed by his hon. Friend, and he had only seven Members to join him in opposing the renewal of those powers. He did not in the least regret the part he had then taken; but he could not disguise from himself the true meaning of that division. He must accept those divisions as an unequivocal decision of Parliament and the country, that it was right and expedient to maintain the Incumbered Estates Court until we had devised some new and improved mode of selling estates. After the course then taken by the Government, he believed it impossible to attempt to put an end to the Encumbered Estates Court without substituting something in its stead. The hon. Member for Enniskillen so treated the subject, and very fairly stated the real question before the House to be between the proposal of the Government and his own. He (Mr. Butt) had no hesitation in saying that he would consent to the renewal for one year, or even two years, of the powers of the Incumbered Estates Commissioners, in preference to the measure introduced by his hon. and learned Friend. That Bill purposed to give perpetually to the Court of Chancery the powers, which for temporary purposes had been given to the Commissioners for the Sale of Incumbered Estates. It gave them, he must say, to a tribunal unfitted by its whole constitution to administer them with advantage. It did not remove the objectionable principles of the former legislation, but it proposed to perpetuate these principles, and to aggravate there. He could, at that hour, do little more than hint at the objections. Let him take one instance. One of the most objectionable provisions of the Incum- bered Estates Act was that which gave to a puisne creditor the right to sell an estate against the will of the prior incumbrancers, and without paying them off. By the ordinary law, the man who lent his money on the mortgage of an estate, had a right to retain his security, until he himself chose to sell the estate, or until he was paid off. No other person could sell the estate without first paying him off. The Incumbered Estates Bill gave any creditor for any amount, however small, the power of forcing the estate into the market at any time he thought proper. Whether such a power ought ever to have been given or not, it was plain that nothing could justify it but an extraordinary emergency. But what was proposed by his hon. and learned Friend? To make this very principle a perpetual part of the administration of justice in the Court of Chancery. They proposed to enact this as a perpetual and permanent principle of their law, that at any time hereafter, any man who would lend money on an Irish estate must lend it subject to this—that no matter what security he took, any person suing the owner of the estate for some small sum, and getting a judgment against him, could force the estate into the market., at any time, whether the first incumbrancer consented or not. If these extraordinary powers were to exist, it was infinitely better that they should be administered by extraordinary and special tribunals than by the ancient courts of justice. But this was not all. The hon. and learned Gentleman proposed to give to the Court of Chancery the power of conferring by its sale a Parliamentary title. Let the House reflect on what was meant by this. It meant that the Court was to take on itself the investigation of every title which it sold—that its decree should bind those who had never known of it; and, that if by mistake it sold one man's property for the debts of another, the right owner should be without redress. He would not now discuss the question of a Parliamentary title. It might be right or it might be wrong; but of this he was quite sure: however Commissioners, armed with extraordinary authority, and not bound by any judicial forms, might exercise such a power—it was one which the Court of Chancery could not, in its present constitution, exercise with safety. But certainly the step was a most important one; it was a power not possessed by the English Court of Chancery. Was this a step in legislation to be taken in a Bill, thrown at this time of the Session upon the table of the House? He felt confident the House would never so lightly sanction a principle of such vast importance. Those who concurred in his original objections to the institution of the Incumbered Estates Court, would not, he trusted, be led away by the belief that they were voting against the policy of that Court by supporting the transfer of its jurisdiction to Chancery. Quite the reverse. Everything that was bad in its principle—everything; that was oppressive to the landed interest, was both perpetually enacted and aggravated by the Bill of his hon. Friend (Mr. Whiteside). He had heard with surprise his hon. Friend object to the proposal to continue the powers of the Incumbered Estates Court, that they only extended to estates which were incumbered to one-half their value, whereas his measure would bring all within its grasp. The restriction had been imposed by the House of Lords as a protection—and a wise protection—to the landed interests of Ireland. In the very Bill now before them, when introduced into the House of Lords, there was a clause repealing that restriction; at the instance of the advocates of the landed interest it had been rejected; he (Mr. Butt) thought most properly and wisely rejected, and now it was complained that all estates were not subject to these extraordinary powers. He still entertained all his objections to the policy which had originally instituted the Incumbered Estates Commission. At the same time he must say that the few improvements in the price of property in Ireland removed one strong objection which he had entertained to its continuance last year. Of the general objections to its powers, not one would be removed by the transfer to the Court of Chancery. He believed that Court utterly unsuited to administer the powers of the Commissioners; and, he believed, that attempting to convert it into an Incumbered Estates Court, they would only unfit it for its regular duties in deciding equities between man and man. The opinion of one ex-Chancellor had been quoted; he would be glad to hear from his hon. Friend if his measure had received the sanction of that great and eminent Judge who had lately held the great seal of England? He had certainly very much mistaken the opinion of that noble Lord, as recorded on the subject, if he had ever approved of a measure for investing the Court of Chancery with the powers of a commission for the sale of incumbered estates. Believing that by such a transfer the discharge of its regular duties by the Court of Chancery would be injuriously interfered with, while the extraordinary powers conferred upon it would not be satisfactorily administered, and dangerous principles, only to be justified—if at all—as temporary expedients, would be engrafted on the permanent tribunals of the country, he was perfectly ready to take the responsibility of consenting to a temporary renewal of the powers of the Incumbered Estates Court in preference to entertaining the proposal of his hon. and learned Friend.


opposed the Motion, and said that he had not heard a single word to induce him to alter the unfavourable opinion which he had always entertained of the Incumbered Estates Court. The author of this Bill, the Master of the Rolls, admitted three years ago the utter failure of the objects which he had in view in introducing the measure; and his (Colonel Dunne's) opinion was, that no tribunal that had ever existed in Ireland had worked more iniquity or injustice to private individuals than this Incumbered Estates Court, which it was now proposed to perpetuate. Many private families had been ruined by its proceedings. What were the average prices of the land sold under the Court? The average price in Leinster was 7l. per acre, and in Connaught the fee-simple of the land actually sold for the sum of 30s. per acre, or, in fact for a lower price than land fetched in New Zealand or in the backwoods of America. Although the prices had increased within the last few months, yet in no case had any estate sold under the Court fetched its true value. For these reasons he should second the Amendment before the House.


felt bound to express dissent from certain statements which had been made in the House that evening. It had been said that the party with which he had the honour to act, had obstructed in every possible way the passing of the Incumbered Estates Act at the period of its first introduction. But what were the real facts of the case? Why, it appeared that no division had been taken against the measure until the third reading, and upon that occasion twelve Members only had recorded their votes in opposition to it. That fact very clearly showed that no hostility to the Act had been manifested by any considerable party in the House. Again, it had been said that the late Government had proposed to continue for a year the Incumbered Estates Court. But it was only fair to add that they had made that proposal solely that they might have time to introduce a measure for a reform of the Court of Chancery; and to that reformed Court they had proposed to refer the business which had been entrusted to the Incumbered Estates Court. They had redeemed their pledge upon that point, and had actually prepared a Bill for the reform of the Court of Chancery. It was, therefore, uncandid to say that they had proposed to continue this Court in the same way as this Bill intended to do. He should add, that he believed the Irish people had become too sensible of the advantage of cheap justice, and of a Parliamentary title in cases involving landed property, to consent ever again to forfeit them; and all that remained to be effected in the matter was to obtain those advantages through the instrumentality of the ordinary and regular tribunals of the country. The present Bill, he thought, was unwise, as tending to prevent the reform of the Court of Chancery in Ireland.


believed that the Incumbered Estates Court had given great satisfaction to the people of Ireland, and he trusted that a measure so important as the present would not be delayed.


complained of the manner in which the Court administered its functions, and thought, before its powers were renewed, its proceedings should be greatly simplified. Of the whole number of the estates that had been sold, the accounts of one quarter of them had not yet been wound up, and great delay took place in distributing the produce of the sales.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill considered in Committee.

Committee report progress; to sit again on Monday next.

Notice taken, that forty Members were not present; House counted; and forty Members not being present, the House was adjourned at half after Two o'clock till Monday next.