HC Deb 04 July 1856 vol 143 cc374-80

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."


said, he did not wish to object to the passing of the Bill if certain suggestions made by the Committee who had sat on the subject were adopted. He wished to know whether it was the intention of the Government to have the business of the Court during the remainder of its existence discharged by two of the three Commissioners who now presided over the sale and transfer of estates by this tribunal. As the House was already aware, one of the Commissioners was Mr. Baron Richards, who was also a Judge of one of the Superior Courts, and was therefore unable to discharge the duties entailed upon him by both offices. A return obtained by the hon. Baronet (Sir J. Shelley) at the beginning of the Session, when he was making an attack upon some of the Irish Judges, showed that Baron Richards had not gone circuit since 1849; and one of the witnesses examined by the Committee, Dr. Longfield, had stated that Baron Richards had not latterly been able to give much of his time to the Incumbered Estate Court. Dr.Longfield had also stated that a great deal of the time of the Commissioners was expended in hearing appeals from each other. Now, a proposition had been made by some of the Committee that Baron Richards, who was no doubt a valuable Commissioner if he could attend to his duties, should be relieved from the office of Chief Commissioner; that the other two Commissioners should be left to do the business of the Court; but that two additional days in the week should be saved to them for the performance of more active business by constituting another tribunal—a Court of Appeal from the Incumbered Estates Court—so that they should not have to be hearing appeals from each other. He should be glad to know whether it was the intention of the Government to adopt the suggestion? If not, he would propose a clause to carry out that object.


said, he would beg to call the attention of the House to another matter connected with the Bill under consideration, which he regarded as a matter of very great importance. If he was rightly informed, a most important judgment had lately been pronounced in one of the Superior Courts in Ireland, which gravely affected what had hitherto been supposed to be the indefeasible title of the Incumbered Estates Court, namely, the Parliamentary titles granted under the Act. If that judgment were a correct one, questions might be raised in all cases where there had been sales under that Court, and purchasers would have to go back to title-deeds anterior to the Parliamentary conveyance given under the Act. In fact, if the judgment were well founded, all titles obtained under that Court were shaken. There had been, he believed, about 5,000 sales through the medium of the Incumbered Estates Court, and there had probably been from twenty to thirty title-deeds brought into Court with each estate; and one of the Commissioners (Dr. Longfield), a very able man, had, as he (Sir J. Graham) was informed, recommended, with the view of preventing parties from going behind the Parliamentary title, that all those anterior title deeds should be destroyed. Now, if they had not been destroyed, they had been, he belived, put into something like a process of destruction, for they were stowed in a cellar into which nothing ever entered except the River Liffey, which did penetrate this deep recess, he was given to understand, from time to time, and bid fair to destroy them. Now, if the judgment to which he had alluded stood, the owner might be called on to produce his title when he no longer had access to those deeds, or when, if he had, he would find them in a state bordering on total destruction, the effect of which destruction would be to throw the whole proceedings that had taken place under the Bill, which it was thought had done so much for the benefit of Ireland, into absolute confusion. He would ask the right hon. and learned Gentleman the Attorney General for Ireland to consider whether, under those circumstances, it it would not be advisable, by some declaratory Act, to establish those indefeasible titles wich it was the object of the Legislature to give? He could not conceive a more grave subject than this—it was also a most pressing one—it was germane to the matter now in hand, and he hoped, therefore, the House would be favoured with a statement of what it was intended to do in order to correct this state of things.


said, that the matter to which the right hon. Baronet had called the attention of the House was one of very great importance indeed. The moment he (Mr. J. D. FitzGerald) heard of the judgment referred to, he took pains to put himself in possession of all the facts of the case, and to get an accurate report of the observations of the Judges who had pronounced that decision, in order to bring the matter under the consideration of the Government, that they might take such steps as might appear necessary. Unquestionably the feeling of the public, and that of the Bar generally, had been that the title given to the Incumbered Estate Court was indefeasible, and that no question need be asked by the purchaser, except as to what the Court professed to sell—whether a leasehold or a freehold interest. In confirmation of the observation of the right hon. Baronet, he could state that he had himself heard one of the Commissioners say, if once a purchaser got his conveyance from the Court, the best thing he could do was to commit all previous title-deeds to the flames. That advice he (Mr. J. D. FitzGerald) believed to be perfectly sound; and there could be no doubt that in passing the Incumbered Estates Bill the Legislature intended to give an indefeasible title; and one of the difficulties which he should have to contend with, if he were now to set about framing a declaratory clause, would be to find words any stronger than those in which the Legislature had recorded that intention. The case which the right hon. Baronet had alluded to was that of "Errington v. Rourke." Now, one of the most arduous and carefully performed duties of the Commissioners was the ascertaining of tenancies, and the insertion of those tenancies in the printed rental upon which they sold; and if any tenant found that he had not been served with a preliminary notice of sale, had not been mentioned in the draft rental, or that his tenancy was improperly described in that document, it was open to him to come in and object before the Commissioners, which he could do almost without any cost whatever. If he did not object, he was taken to acquiesce in the description which the rental gave in his tenancy. In the case in question Mr. Errington was the purchaser under the Court, but twenty acres of his purchase were refused to be given up to him by a man named Rourke, who claimed to hold under an old lease. Rourke's tenancy was not noticed in the conveyance from the Incumbered Estates Court to Mr. Errington, and the latter refused to recognise it. Two out of the three Judges of the Court of Queen's Bench, before whom the case came, held that Rourke' s tenancy was not disturbed by the conveyance from the Incumbered Estates Court; but in this Mr. Justice Crampton adopted the commonly received view of the Act—namely, that it gave an indefeasible title to all conveyed by the Commissioners. That learned Judge's view was subsequently confirmed by a judgment given in another case by the Chief Justice of the Court of Common Pleas in Ireland and another Judge of that Court, and he (Mr. J. D. FitzGerald) had not the least doubt that it was a correct one. However, as the case of "Errington v. Rourke" would be brought to the Court of Exchequer Chamber, and subsequently to the House of Lords, he had not thought it his duty to advise the Government to introduce a declaratory enactment pending the decision of the question by the ultimate tribunal. Should that decision be against the hitherto received opinion, he should certainly recommend such an enactment. As to the question put to him by the hon. and learned Member for Enniskillen (Mr. Whiteside), he believed that an Amendment, such as that referred to, would be introduced by the right hon. Baronet (Sir J. Graham) when the House went into Committee on the Bill: but while admitting the inconvenience of having two such judicial offices as those of Baron of the Exchequer and Chief Commissioner of the Incumbered Estates Court filled by one individual, yet, having regard to the amount of business which the latter Court would have to discharge during the remainder of its term of existence—a year or two—he would not feel justified in recommending the reduction of its judicial staff. The Act empowered the Government to make such reduction if it thought fit, for it did not oblige them to have three Commissioners.


said, he was aware of an instance in which great injustice had been done in the case of the sale of land, subject to a lease that had been seen by the Commissioners and pronounced to be valid. There ought to be no Act of Parliament to make valid such doings; the Act of Parliament ought to be made to operate the other way. He considered that the judgment of the Court of Queen's Bench was perfectly sound. All that it declared was, that the Commissioners of the Incumbered Estates Court had no right to sell away any interest belonging to third parties, the title to which appeared on the face of their own documents. He did not think a declaratory clause necessary, and he thought that Parliament had acted wisely in not introducing it. He considered that no blame attached to Mr. Baron Richards; the difficulty arose from the learned Judge going from one Court to another. From his own observation he could, however, say that Mr. Baron Richards had attended the Exchequer Court regularly. He hoped the Government would remove the Incumbered Estates Court to the Four Courts, and then the business would be conducted regularly.


said, that he had prepared a Resolution to the effect that the Court should, within a short time, be removed to the Four Courts.


said, that the Court of Queen's Bench had broadly asserted that they had the right to go behind the Parliamentary title, and if they could do that, he did not see how purchasers could have an indefeasible title. However, pending the appeal to the Court of Error in reference to the case which had been alluded to, he considered that it would be inexpedient to bring forward any declaratory Bill on the subject; but should the decision of the ultimate Court be in accordance with the decision of the Court of Queen's Bench, he thought it would then be necessary to introduce such a measure.


said, he thought the present position of the Court was inconvenient. The instance brought forward by the right hon. and learned Member for the University of Dublin (Mr. Napier) was not the first or only instance in which that Court had sold property belonging to another person, over which they had no proper control. The Court was in bad odour with the public, owing to the nepotism and irregularities practised in it.


said, he was well acquainted with the sentiments of the people of Ireland with regard to the Court, and he could state that they believed it had conferred more blessings on that country than any other institution that had been established. The Chamber of Commerce in Dublin, who were as good judges on the subject as any body of persons, presented an address to the Lord Lieutenant, in which they attributed the rising prosperity of Ireland mainly to the transference of property through the means of the Incumbered Estates Court. Men now got twenty-five years' purchase for their property, when formerly they only got eighteen years' purchase.


said, he thought that, under present circumstances, a more objectionable title than that under the Incumbered Estates Court could not be found. The late decision of the Judges of the Court of Queen's Bench was sufficient to shake the title of every property purchased under the Incumbered Estates Court. Unless the Government stepped forward and interfered by a declaratory Act, stating that all titles under the Incumbered Estates Court were indefeasible, the holders of property under that Court would be in a worse condition than the owners of any other property.


said, he thought that the last speaker had greatly exaggerated the effect of the decision of the Court of Queen's Bench. However, he would not go into the question, as the case was still sub judice, but refer to one more practically urgent. He alluded to the locality in which the Incumbered Estates Court was situated. Two years ago, he obtained a pledge from the Government that the Court for the sale of Incumbered Estates should be brought into the neighbourhood of the Four Courts. It was most desirable that that step should be taken, but as yet no measures had been taken to redeem that pledge. He did not ask for another pledge on the subject, because he had experienced the little value which could be attached to pledges; but he hoped that the right hon. and learned Gentleman the Attorney General for Ireland would take immediate steps for the removal of the Court into the neighbourhood of the Four Courts. It was not a mere professional question. As the Court was now placed, it was away from the legal public, and so lost the superintending influence of that public opinion which was most beneficial to all Courts of Law. When he spoke of public opinion, he did not allude to the views of the unlearned public, or of newspaper writers, who seldom understood those matters. The truth was, that the junior Bar, who crowded the back benches, and who apparently had nothing to do, exercised a very wholesome influence over Courts of Law; but through the inconvenient distance between the Incumbered Estates Court and the Four Courts, a legal public—so to speak—was almost utterly wanting.


said, he thought that the course taken by the Incumbered Estates Court in the case referred to was a most unusual one. The Commissioners had departed from their general practice and their rules, and that had been the cause of their difficulty. He was of opinion that anything calculated to question the validity of the title given by the Incumbered Estates Court would be one of the most unfortunate circumstances that could occur to Ireland. He would call upon the Government to lay before the House the full particulars of the case alluded to, with a view to a thorough investigation of all the facts. He hoped that the Government would carry out the pledge they had given to remove the Court from its present inconvenient position to the neighbourhood of the Four Courts in Dublin.

Question put, and agreed to.

Bill read 2°.