HC Deb 26 April 1861 vol 162 cc1195-7

said, he rose to call the attention of the House to the matters alleged in, the petition of Lieutenant Colonel John Henry Keogh, presented to the House on the 14th day of March last. It appeared that the petitioner was entitled to two estates—one in the County of Carlow and the other in Kildare. A petition was presented to the Encumbered Estates Court, Dublin, for a sale of the property to pay debts contracted by the petitioner's father, and an order was pronounced in August, 1851. The Kildare estate was sold in 1852, and it was found to realize more than sufficient to discharge all the claims of the creditors, and amongst them the particular debt which was the subject matter of the petition. It was a judgment debt in the penal sum of £2,000, the bond having been given to one Anne Garstin. The gum due on the bond was £1,061, principal and interest, and the Judge ordered that that amount should be set aside for the personal representative of Anne Garstin, and directed that letters of administration should be taken out to her. That was done in May, 1853, at which time there was no legal personal representative. By the practice of the Encumbered Estates Court, when once the money was allocated by the Court the petitioners received no further notice with regard to it, and did not know when it was drawn out. The trustee of the judgment debt was a clergyman who proceeded to take out administration on the 8th of December, 1853. But before the representative could obtain payment of the money other persons wrongfully did so from the officers of the Court, and when those persons were called upon to refund it, it was found that they were insolvent, and, consequently, only £60 was obtained from their estates instead of £1,100. The trustee of the judgment then applied to the Encumbered Estates Court for an order to sell the estate in Carlow, and the Court could not refuse to make such order on the ground that money had once been allocated for the payment of the debt. Proceedings were then, by order of the Encumbered Estates Courts, commenced in the law courts by the trustee, and the result was the Court of Common Pleas held he was entitled to judgment for the amount claimed, the Judges saying that the money having got into the hands of the wrong person was no answer to the case made by the trustee, who was the right person, and that Lieutenant Keogh must obtain redress elsewhere. That gentleman had had to pay the sum of £1,650 10s. 5d. to the trustee, and £222 16s. 10d. costs to his attorney, in consequence of an error committed by an officer of the Encumbered Estates Court. The reason why Colonel Keogh could obtain no redress was that the 15th Section of the Act of Parliament enacted that neither the Commissioners of the Court nor any person acting under the authority of the Court should be liable for anything bonâ fide done, or omitted to be done, in the exercise of the provisions and powers of the Act. The officer having acted under the powers of the Act, there was no redress at law to Colonel Keogh, and the question was whether he was to have any redress rendered to him elsewhere—that was to say by that House? If there was a fund in court Colonel Keogh ought to be paid out of it; but if there was no such fund, then, as the House had compensated Mr. Barber for injuries done to him, so the Government ought to put Colonel Keogh's name upon the estimates for the amount which he had lost through negligence of an officer of the Court. There could be no doubt that a grievous injustice, under the Act of Parliament, had been done to Colonel Keogh, and he hoped the Government would give a satisfactory answer with regard to it.


said, that there could be no doubt that a great hardship had been done to this gentleman. He had to pay twice over a sum of money through the negligence of a public department, and had failed to obtain redress, in consequence of an Act passed by that House. He (Mr. Cogan) thought it was a fair case for the interference of the House, with the view of affording some redress for the wrong that gentleman had sustained. He believed there were funds at the disposal of the Court by which that gentleman might be compensated without putting any burden upon the country. If the Secretary for Ireland saw any difficulty in dealing with the case now, he (Mr. Cogan) trusted that the right hon. and learned Gentleman (Mr. Whiteside) would be granted a Committee to inquire whether public justice could not be done?


said, that his part in the case of Colonel Keogh was a very slight one. Such a case, indeed, had no connection with the ordinary departmental discretion of the Treasury. The case of Colonel Keogh was certainly a very grievous one, and he should feel himself unable to oppose an investigation with a view, in the first instance, to the establishment of the facts. At the same time the matter involved many difficult and important questions which could not be decided off-hand. It would be impossible to take any step which, by recognizing any claim upon the public in such a case, would simply announce to the officers of courts of justice that they might with impunity commit any neglect or misconduct as long as it could not be proved wilful fraud. The difficulty of such cases was increased by the fact that officers of courts of justice were not under the control of the Executive Government. The vote of the House in the case of Mr. Barber was proposed with doubt and misgiving; but it was clearly established in that case that the wrong inflicted upon Mr. Barber was inflicted by persons who were under the direct control of the Executive Government. In the Irish cases to which reference had been made no claim upon the public was recognized.