HC Deb 21 May 1862 vol 166 cc2000-7

Order for Second Reading read.


, in moving the second reading of this Bill, said, it would affect the real property law of the country. It was a Bill to amend the law relating to judgments in Ireland. A judgment was the decision of a competent Court that A should recover his debt from B. It gave a right to recover out of the profits of the land, but did not affect the land itself. Some years ago the writ of elegit was introduced, by which a judgment creditor could take a moiety of the land, and in practice prevent any portion being sold. In the reign of George II. judgments were made assignable at law. The consequence was, that judgments obtained for very small sums—for a grocer's bill of £50—were sometimes assigned, and were then made the subject of the most costly litigation; a bill in Chancery was filed, accounts taken, a receiver appointed, and costs run up to a large amount. The judgment became a charge upon the realestate; so that a man with perhaps an income of £10,000 a year could not dispose of a single acre of it until he had got rid of this judgment. The evil was inquired into by the Real Property Commissioners in 1829, and they pronounced against a system which made land unsaleable and entailed unnecessary expense. The Act known as Sir Michael O'Loghlen's Act was intended to remedy the abuse, but it really increased it; and Pigott's Act extended the pernicious right to appoint receivers to chattels real as well as land. A Committee of this House considered the question, and Lord St. Leonards, then Sir Edward Sugden, said in his evidence— I think that the law as it now stands in Ireland is mischievous to everybody, that it leads to the rapid accumulation of judgments, that it tends to create permanent debts, that it prevents the owner of land selling to advantage, and that it is the cause of great litigation and great costs. A subsequent Committee reported against the appointment of receivers, unless it could be made to appear that the interests of the parties required it; and the Committee resolved that the several Acts which regulated the rights of judgment creditors against the real estate of debtors required to be amended. There was a third Committee, which equally condemned the receiver system. The principle of the recommendations of these Committees was, that land should be placed, in regard to judgments, in the same position as goods were. With regard to goods, a judgment was of no force until it was actually put in execution; and a person against whom a judgment had passed was not prevented from disposing of his goods until they were taken possession of under the execution. The She riffs' Act was introduced by Sir Michael O'Loghlen, by which the old writ of elegit was taken away and receivers appointed in lieu; and another Act, known as Pigott's Act, extended the former Act so as to include chattels real. The consequence was, that receivers multiplied all over the country. In the 12th and 13th years of the reign of Her Majesty an Act was passed which was to render judgments unpopular in Ireland. It repealed the Act of George I., which allowed a man to as sign a judgment to another, and provided that receivers should not be appointed in cases where the judgment was for less than £150. He could never understand why there should be any distinction between judgments for less than £150 and judgments for a larger amount, and in this Bill the distinction was removed. In the following year a Bill which was introduced by Sir John Romilly became law. The first part of that Act provided that judgments should not any longer be a burden or lien upon land; but the second part, which he proposed now to repeal, enabled a judgment creditor to make an affidavit that he was informed and believed that his debtor possessed certain lands, and to register the judgment against those lands. The idea was, that the creditor would only register against some of his debtor's lands and leave the rest free; but in practice it was found that judgments were registered against all the lands which a man had in the world, and sometimes more, because it had not unfrequently happened that the affidavit described more property than the debtor, in fact, possessed, and thus a lien appeared to exist upon the land of one man for the debt of another. He ventured to assert that no law had created more diffi- culty, embarrassment, and litigation than that Act of Parliament. Then came the question, what was this thing created by Act of Parliament? Was it a judgment, or was it a mortgage? For some time it was held to be in the nature of a mort gage, and, being registered, entitled to priority over all subsequent mortgages. But it seemed to be thought now that that was a blunder, and that what was only a judgment never could become a mortgage. In the Bill which he now asked the House to read a second time he had endeavoured to embody the recommendations of the competent authorities who had considered the subject. The object of the Bill was to make judgments no longer a permanent burden on land, but to give judgment creditors a right to sell the land by petition to the Landed Estates Court or the Court of Chancery, and to provide that a judgment should not affect a purchaser or mortgagee, unless it was registered as a lis pendens. What he wished was to assimilate the law of Ireland, in respect of judgments, to that of England; and he hoped the House would read the Bill a second time, leaving the consideration of particular clauses for discussion in Committee.

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


said, the Bill was a very important one, affecting as it did the rights of all the proprietors of land in Ireland; and as it would enable any judgment creditor for the sum of £50 to bring the estate of his debtor into the Landed Estates Court and have it sold, it required the greatest consideration. He should like to hear the opinion of the law officers of the Crown as to the working of this Bill.


said, that the Lord Chancellor of Ireland and the Irish law officers had given an opinion against this Bill; and, for that reason, he would ask the House to agree to an Amendment which he meant to propose—namely, that the Bill be read a second time that day six months. For a long time judgments had been a common and favourite security in Ireland; but it appeared to him that this measure might have the effect of lessening the value of judgments by rendering them less secure. Pigott's Act put the law relating to Irish judgments on exactly the same footing with the law of judgments in England as it wag when that Act passed, with the exception that it left untouched the old Irish Acts allowing judgments to be as signed at law. Under Pigott's Act, by the mere entering-up and registering of a judgment the judgment creditor became entitled to a charge on all land, including leaseholds the property of his debtor, in the same manner as if the latter had agreed to give him a charge on his estate in those lands. That was found to lead to inconvenience, and the Act of 1849, the 13 & 14 Vict., was introduced by the present Master of the Rolls. That was the Act which his right hon. Friend (Mr. Whiteside) wished to abolish. It must be considered as a whole; and its object was to prevent judgments from being a charge on all the debtor's land generally, without any specification on the register. It required a specification of the lands upon which the judgment was to be a charge. At the same time it took away the old remedy by elegit, but gave the creditor a better and more direct remedy. It was true that within the last two years the law of judgments in England had been altered; but the Act which effected that alteration did not take away the power of the judgment creditor to apply for a receiver or the old legal remedy by way of elegit; while the Bill of his right hon. Friend would put the judgment creditor in this position—that unless he went to the Landed Estates Court and sold up his debtor he should have no remedy against him. He was not satisfied that such a change would be desirable in a country where judgments were so common a security. It would be much better to introduce a Bill declaring that judgments should be no charge upon land at all, than to pass a measure which would lead creditors to believe that they got good security by a judgment, when, in reality, they would only get a security of a very precarious character, unless they brought their debtor at once into the Landed Estates Court. He begged to move that the Bill be road a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."

Question proposed, "That the word 'now ' stand part of the Question."


would be inclined to agree with the Solicitor General if the question to be decided were that of either accepting this Bill or of rejecting it. He certainly saw some objectionable provisions in the Bill, which the right hon. and learned Gentleman who introduced it almost admitted to require amendment; at the same time, he believed that there were also some wholesome and valuable features in the measure, which in his opinion would go far to improve the law in Ire land in regard to judgments, which law was at present in a most disgraceful condition. He thought that under these circumstances it would be an injury to the landed property of Ireland if they refused to read this Bill a second time, and there fore he respectfully submitted, that as the Bill contained principles which, if agreed to, would lead to a better transmission of property in Ireland from hand to hand, they should give it a second reading, and endeavour to make this a useful measure when they got into Committee.


concurred in the opinion of the hon. and learned Member for Mallow (Mr. Longfield), that it was most desirable to amend the law in Ireland in regard to judgments. He would vote for the second reading with a view to their moving that the Bill be then referred to a Select Committee, and there entirely remodelled. In taking that course he only intended to bind himself to the declaration that the law in its present state was objectionable.


said, he should vote for the second reading. He thought that the Solicitor General had misconceived the scope and object of his right hon. Friend's Bill. So far from the object of the measure being to either invalidate or render less secure judgments upon land, he (Mr. George) considered that the very principle of the Bill was to render those judgments more secure, in giving power to judgment creditors to render them at once effective by a sale of the land in question. The remedy, which had almost become obsolete, of appointing a receiver on the foot of a judgment over the land, in the opinion of the best legal authorities in Ireland, ought to be done away with. The remedy by elegit allowed a party to enter into possession of land, and to its profits, subject only to an account being rendered within some indefinite term of years of what the value of the land really was. It appeared to him that it would be most desirable to abolish such a remedy altogether. He would certainly support the second reading, believing that the measure would have the effect of simplifying the remedies of judgment creditors, and of making the securities more safe and more acceptable than they were under the existing law.


confessed he was at it loss to collect from the speech of the hon. and learned Solicitor General any reasons why this Bill should not be read a second time. He (Mr. Malins) thought it was most desirable that the law of England and Ire land upon this subject should be assimilated. He thought no hon. Member would venture to deny that proposition. If the practice in England were not to apply for the appointment of a receiver over the property in question, what objection, be asked, was there to establish a similar practice in Ireland? Again, in regard to proceeding by elegit, it was true that n judgment creditor might exercise the right of taking the land of the debtor, and of receiving the rents and profits. But the judgment creditor in England scarcely ever took that course. He resorted to the Court of Chancery for the sale of the land. Now, the Bill of his right hon. Friend proposed to assimilate the law of Ireland to that of England in those respects; and he could not understand how any reasonable objections could be urged against it. In his opinion it would be most ungracious and unjustifiable, under such circumstances, to reject this Bill on the second reading.


said, having had the honour to be a Member of the Committee that sat on this subject, he felt impressed with the opinion that the law of Ireland in regard to judgments was in a most unsatisfactory state, and required immediate amendment. He must, therefore, express his deep regret that the Government had thought fit to meet the second reading of this Bill with a direct negative, without giving any sound reasons against its principle, or holding out any hope that it was their intention to amend the law in Ireland in reference to this subject. Nobody could say that that law was satisfactory, and therefore it was the more to be regretted that the Government should seek to put a negative on the only effectual attempt that had been made to improve the law. All the objections urged by the hon. and learned Gentleman (the Solicitor General) against the measure could be easily amended in Committee. He looked upon the proceedings taken under the existing law in Ireland as an injury and a curse inflicted upon the unhappy owners of the land, without any advantage to the creditor, but only for the benefit of certain parties who kept up this cursed machinery for the purpose of sucking the blood of their unfortunate victims, who were obliged to submit to their heartless demands in the shape of overwhelming costs.


regretted that the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Whiteside) had not brought in a Bill to abolish the existing law of judgment al together. He did not see why judgments affecting real estate should not be put on the same footing as judgments on personalty.


said, that the letter of the Lord Chancellor of Ireland had shown no reason why this Bill should not be read a second time, but had merely raised objections to details which might be met in Committee. He had himself been in communication with bankers of eminence in Ireland, and his right hon. Friend had agreed to modify the provisions of the Bill so as to meet the wishes of that important body of persons. If the Bill was read a second time, he had no doubt that his right hon. Friend would not object to refer it to a Select Committee, on which the landed gentry of Ireland might be thoroughly represented.


said, that it had been shown by one Gentleman after another that the existing law upon the subject was unsatisfactory, and therefore it ought to be altered. Upon the understanding that the Bill was to go to a Select Committee he should support the second reading.


said, his impression remained unshaken, notwithstanding till that had been said by hon. Members in favour of this Bill, and he could not entirely approve of its principle. At the outset, it seemed as though the principle of the measure was the assimilation of the law of Ireland to that of England; but, as far as he was able to investigate the provisions of the measure, he thought he was warranted in saying that it would not have the effect of assimilating the law of the two countries. The right of having a receiver and the writ of elegit were both taken away by the Bill; how, therefore, could it be said to be an assimilation of the law of England and Ire land? The Act of Lord St. Leonards, which had been only about two years in operation, placed many restrictions upon the creditor, affecting seriously his inter- ests. That law, however, had not been established long enough in the country to enable them to judge of its efficacy. Nevertheless, under all the circumstances of the case, the Government would not object to the second reading of the Bill, with a view to its being referred to a Select Committee.


was glad that the hon. and learned Gentleman had put the Government right with regard to this Bill. He had never heard feebler arguments than those by which it had been met. He had been asked why he did not maintain the law of receivers. His answer was, that it had been condemned by two Committees, of which the late Sir James Graham, the hon. Member for Coventry (Mr. E. Ellice), and the hon. and learned Member for the University of Cambridge (Mr. Walpole) were members. The objections to the Bill had been founded upon the opinions expressed by Gentlemen who were absent from that House, and who, he was sorry to say, were never likely to be present.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read 2°, and committed to a Select Committee.