The Sun.
London, England, 1858-06-05 00:00:00

LONDON, SATURDAY EVENING, JUNE 5,

I degenerate into another Court of Chancery, he should be
sorry if it did ? but the right hon. gentleman had himself
proposed to establish a similar court as a branch of the
Court of Chancery, when the danger of such a degenera-
tion would have been much greater. The right hon. gen-
tleman objected to the proposed power to the court to
apptiat receivers. He should be sorry to see anything
like a system of permanent receivers, which had been
the curse of Ireland ; but he thought it would be desir-
able the toart should have such a power for the protec-
tion of all parties, as an estate might be in court for 12
months before it was sold. Tue right hon, gentleman
said the bill removed the jurisdiction conferred on the
Court of Chancery by the Lease and Sale of Settled
Estates Act. By that act the Court of Chancery was
empowered to sell, but not give a parliamentary title ;
and unless a change was made these estates would be in
a more unfavourable position than any other. It seemed
to him absolutely necessary, therefore, that if this bill
was passed, settled estates should have the benefit of its
provisions. With regard to the judges of this court, he
concurred in everything which had been said iu praise
of the eminent persons to whom he referred. He thought
the country owed a debt of gratitude to Mr. Longfield
and Mr. Hargreave, on account of the manner in which
the Encumbered Estates Court had been worked by
them. Whatever they might do in the way of legisla-
tion, the goodness or badness of the court must depend
in a great degree on those who had to carry it into ope•
ration, and the gentlemen whose nameshe had mentioned
had from the first set themselves to work in such a man-
ner as to gain for their court the highest reputation.
The question of an increase in the number of the judges
was a fit subject for consideration in committee ; bat
the result of the inquiries of the committee of that house
and the commission of 1855 had led him to the conclu-
sion that two judges would be sufficient. A third judge
would of course require a separate staff, and the ques-
tion of expense was therefore a very serious one. It
shoul I be borne in mind that hitherto the two judges had
sat alternately, whereas in future they were to sit simul-
taneously, and that would add considerably to the
amount of business transacted within a given time. As
regarded the employment of conveyancing counsel, which
was ona of the recommendations of the chief commie-
sinner, ho might observe that at present, when a title
was brought into court it was in the first instance re-
ferred for examination to any counsel whom the solicitor
promoting the proceedings chose to select, and the fee
paid for that examination formed part of the expenses
of the sale. The chief commissioner had found the exa-
minations hither to unsatisfactory and needlessly expen-
sive top the suitor. If such investigations were to take
place care should be taken that the conducting of them
should be placed in proper hands ; and the provision in
question was inserted for that purpose. The right hon:
gentleman (Mr. J. D. Fitzgerald) said that, inasmuch as
by this bill they gave power whenever there was an
estate to be sold to sell it with a parliamentary title they
did not thereby draw the business of the Court of Chan-
cery into this new court. Considering that the right hon.
gentleman began by deprecating the regarding the Court
of Chancery as a proper tribunal for the sale of land, he
should rather have expected him to rejoice at what he now
appeared to apprehend. Besides, he should recollect that
the sales would be chiefly sales in which encumberers
were concerned, and which would therefore properly
eoma before the court. The only other observation which
he would make related to the 50th clause, by which
the title was declared to be conclusive and indefeasible.
On that subject he would remark that all that was done
by the clause was to declare that the particular title
described in the declaration was conclusive and hide-
feasibie. If necessary, that clause might be amended
in committee. The right hon. gentleman objected to the
proviso with regard to registration. The house was aware
that in Ireland registration took place whenever there
was a sale or transfer of an estate. All that was done by
this bill was to provide that the piece of parchment exhi-
bited in the Encumbered Estates Court should be placed
on the register. The bill did not offer a complete registra-
tion c f titles, but it cleared the way for it whenever a
general measure should be passed to secure that object.
In conclusion, he trusted the right hon. gentleman would
not persevere in his proposal of a select committee, and
that Parliament would be enabled during the present
session to pass a measure which he believed would prove
ono of the greatest boons that could be conferred on the
landed interest of Ireland, and which he hoped would be
a step towards the passing sf a similar measure for the
benefit of the landed interest of England. (Hear.)
Sir R. BEMELL begged to assure the hon. and
learned gentleroan ( Whiteside) by the remarks which
be was about to make he had no wish to prevent the
passing during the present session of a measure the merits
of which he folly admitted. He should, however, be ex-
ceedingly glad if be would accede to the suggestion that
the bill should be referred to a select committee. The
great difficulty was that they were creating a great co-
ordia tej urisdicti ir, which, nevertheless, had not a juris-
diction co-extensive with that which existed in England,
and the effect might be that parties would have to resort
to the older court, the court of equity, to have one thing
done, and to this new court to have another thing done.
That was a difficulty of the most serious kind ; and he
thought it would be the best that the means of meeting
it should ba considered by a select committee. However
great the authority of the new court might be, it would
be limited as regarded the subject matter. Cases would
arise in which the subject matter would be partly landed
property and partly personal property ; and as the bill
stud it was necessary that the former should be dealt
with by one tribunal and the latter by the other. That
was a_very great diffLzulty, and it- could only be dealt
with properly by'by select -oommi,ttee: That was not,
however, his sole reason for advocating the appointment
of a select committee. Contemporaneously with the
introduction of this measure, Lord Oran worth brought
forward in the House of Lords a bill for facilitating the
sale and transfer of land in England. That bill having
come down to that house, it was his intention to move
that it be referred to a select committee, and as it pro-
po,ed to give to the court of equity in England preciely
the same functions and powers that were delegated by
the pie ent bid to a distinct and independent tribunal in
Ireland, he thought it desirable that the two bills Should
be considered by the same committee. Thera was Baw-
-1 ther subject which was undoubtedly of very great im-
portance, and on which a measure had been prepared,
which he (Sir R. Bethell) would not introduce during
the present session lest his doing so should have the
effect of embarrassing the right hon. gentleman ; he re-
ferred to the general registration of titles, (Hear, hear.)
That was a subject which had engaged his attention for
a considerable period, and his views were embodied in a
bill, which would, he thought, command the attention of
those who were most interested in the matter. There
were some important matters which were omitted in this
bill. The bill gave power to any owner of an estate to
apply to the court, and an "owner" was described ire
the owner of any limited
tihneteirnetsetr.pretation clause as
Mr. WHITE3IDE said that had been corrected, and
the clause referred to the o racer ofan estate in fee simple.
Sir H. BETHELL --It might have been corrected,
but still Rivas a most difficult problem to determine what
measure of interest should be deemed sufficient to call
the new court into ac'ion. The 38th section provided
that the court should have power generally to ascertain
and all parties in any land in re-
spect eonfwrheic the rights
ati ofon might be made under the act,
If there were any meaning in those words the owner of
any limited interest might bring the whole estate under
happiic
the centr 1 of the court, and the court would then have
power to declare what was the interest of every per-
sonhis opinion, a duty which
ought
into any but, the highest j udit
not concerned.
to
be That
entrusted was,
udi-
cial tribunal ; although he fully concurred in the en-
osmium which had been passed on the two gentlemen
who had presided in the Encumbered Estates Court.
These were matters which would be best censiderel by
a select committee, and lie trusted that the right hon.
gentleman (Ur. Whiteside) would assent to that view.
The ATTORNEY-GENERAL had heard with great
satisfaction, though not with surprise, his hon. and
learned friend's assent to the main principle of this bill ;
but he thought the effect of referring it to a select com-
mittee would be greatly to endanger the passing of it
during the present session. He agreed with the right
hon. gentleman the late Attorney-General for Ireland,
that it was laves-Me to be too oautious in dealing with
such a subject as this, involving, as it did, the security
of the leaded property of the kingdom. It must not,
however, be forgotten that they were legi.lating in this
case by the light of experience, and that no evil had
hitherto resulted from the working of the Encumbered
Estates C. urt. (Hear, hear.) In considering the ques-
tion whether they should proceed at once with this bill,
he could not help refisc'ing on the great and mighty
benefits which would accrue to Ireland, and in the end
to Eegl in I, if they could succeed in establishing a court
with enlarges! joeieelietion nod adcgtotte functions: under
which the titles of land wight The eftectuifl`ftegistered,
and wbieh might be made the foundation of a general
system of tr inaferrirg land. The benefits which might
be expected to arise fr. m that s urce were incalculable.
(Hear, hear) His a tention had been long directed to
that subtle, and the report of a committee, of which Lis
hon. and learned friend (Sir R. Bethel!) was a member,
guaranteed to the house the entire practicability of
establishing, with adequate safeguards, a system of
complete registration of titles and of easy and secure
transfer of land. It had been found in Ireland that
fictitious encumbrances had been created in order to
create a fictitious jurisdiction in the court to effect that
which was found to be eo great a benefit to all per
sons interested in the transfer of land. And when
they were threatened with the danger of conferring so
great a jurisdiction en a court to be created he thought
that they hail only to consider what might now be done
indirect'', in the Encnrnberel Estates Court, and di-
rectly, tooth in Eueland and Ireland, by means of the
Court of Chancery; and those dangers and difficulties
would entirely disappear. The power of the Court of
Chancery in snits for specific performance was analogous
as t> any difficulty which might be apprehended. If a
he desired ten tines in the course of his life to raise
gentleman in this country had 1,000 acres of land which
money upon by 11-wag:iv., or to otherwise eater into
trausections affecting his title, ten times over must
he
incur the expenses of investigating the entire tit's of that
estate. In many CA.OO where the estate was not large,
but the title seat what ancient or complicated, it might
be found that the whole value of the estate iu fee simple
bail been spent du: -
log the lifetime of one man, in rel
desired t sell two acre out of 2,000, he must g
peated hive Options of the title. So again, if a gentle-
manthrough the whole expense of investigating the t:411), the
same as he would incur in selling the fee simple of
the entire estate. If a person during a portion of his life
should sell on several c.comioas several portions of his
estate, be would ir.cur on those several occasions the
co nplete expense of investigation of the title, and it was
impossib.e to say how much of the fee imple would be
wasted in that investiga' ion. Whereas if it were done
under tI is bill it might be done by one single investiga-
tion of the title, and a declaration of the title would be
given by the court, so teal the owner from that date
got in effect a new tilde, and when, from that time
forth, ho should desire to mortgage, even over and

over again, or to part with it by selling it in several
small portions, there was this declaration of title
affirmed-by the court, which would enable the owner to
deal with the pr-operty in every way, as long as that de-
claration should endure. Was there any danger that per.
sons who should claim title in such estates might be
wronged by this bill ? No injustice of the kind occurred
in consequence of suits for specific performance. His
hon. and learned friend opposite had raised several
objections to the jurisdiction of the court proposed to
be established, but the chief objections ho had heard
appeared to him, when carefully considered, to answer
each other. One o' jectloa raised by his right hon.
friend, who proposed a select committee, was that this
court would have power of directing issues of fact or a trial
by jury in some distant part of the country, while on
the other hand the hon. member for Aylesbury (Sir R.
Bethell) raised a difficulty that, in order to give a good
title the court would usurp or invade the functions of
the Court of Chancery, and we might have a conflict of
jurisdictions. He thought that these objections were
more apparent than real. In the Probate Court they
had there, as here, a second and distinct court, in which
questions of magnitude and importance might arise, and
the Divorce Court was another instance, but there was
no conflict of jurisdiction ; there was provision made for
any difficult questions which might arise. If such a
question of fact arose in reference to the title of a large
landed estate, which might come under investigation in
this new court—a question, for instance, as to the com-
petency of the testator to make a will—there was a
proviso under which the judges of the court might direct
an issue to be tried by a jury, or enaction to be brought
in the same way as an action of ejectment brought to
recover the land, and disposed of in the same manner.
It was said that there would be a coal ct of jurisdiction
with the Court of Chancery, and a conflict of decisions,
but the bill provided an answer to that. The bill said
that when any difficult question should arise, a case
might be stated for a court of law, and there might be
an appeal against the decision of that court,
which appeal at last might be carried to the House of
Lords. There was one objection more which he had
heard with considerable surprise. The objection was,
that if this court were established, proceedings would
take place which would have the effect of drawing away
from the Court of Chancery a great deal of its business.
It would, he thought, be the greatest praise which could
be bestowed on this measure, to say that all who wanted
to investigate title, should find it convenient to go to
this court instead of to Chancery. With the able and
sincere assistance which his right hon. friend would
derive from hon. and learned gentlemen opposite he was
sure that any necessary corrections could be made, and
that there would be no difficulty in providing all neces-
sary safeguards. If his right hon, friend should be suc-
cessful iu carrying this bill through Parliament he would
confer a great and lasting benefit open the country.
Lord J. RUSSELL rose not to enter into the details
of the bill, but to make a few observations on the mode
of proceeding with the bill, and as to the general prin-
ciples involved. The hon. and learned member for Ayles-
bury (Sir R. Bethell) had agreed with the proposal to
refer the bill to a select committee. He had listened to
him while he gave his reasons, but it appeared to him
that there were some great principles in the bill which it
was necessary that the house should decide, and he could
not think that it would be satisfactory to the house that
this bill should go to a select committee, without reserv-
ing their own power of deciding on those principles.
(Hear, hear.) As to the framing and w/ording of the bill
he doubted whether in a select committee there would
be greater agreement between his hon. friend (Sir R.
Bethel)) and the Attorney-General than there would be
in this house. (Hear, and a laugh.) He thought that
the learned Attorney-General forlreland had hardly done
justice to his right hon. friend, the Master of the Rolls, to
whom great gratitude was due in reference to this sub-
ject. Sir R. Peel by a measure of a totally different kind
had caused extensive settlement of questions as to land,
but his measure did not resemble this. The question
involved was one which had been entertained for a very
considerable time, and he remembered that Lord Cot•
tenham could not be persuaded for some time that there
would be any progress in reference to encumbered
estates, unless the persons who had encumbered gave
their assent to proceedings. Sir John Romilly proposed
a measure which was af.er wards carried, and Lord Cot-
tenham assented to that measure, and by that mean,-
this piece of legislation was inaugurated. He was very
glad that learned gentlemen who had had full opportu•
nity of observing the working of this bill, and to whom
complaint would have come if there had been any, had
been so well satisfied that they were prepared to estab-
lish a curt of the nature contemplated. When he came
into the house he was disposed to think that the Attor
ney-General had carried the principle of the bill some-
what too far. In the beginning it was a very strong
measure, and though they might take a certain course
as to encumbered estates, it was a doubtful matter
whether they could carry that principle out in reference
to other species of estates. He himself was satisfied that
they could carry the principle somewhat further, so as to
make it apply to estates for sale; but he thought the.
the learned Solicitor-General had proved very clearly
that they could not stop short there either in law cr
practice, and that other estates, which were neither
encumbered or for sale, would be brought by their
owners, by some species of evasion, within the compass
of this court, and that, therefore, it was better to de
directly that which otherwise would be done indirectly.
(Hear. hear.) He did not think it followed that when
they had very much enlarged the sphere of this measure
that they shculd then proceed to make the number of
judicial officers of the court smaller than it had hitherto
been. (Hear.) He thought that the proper course
would be to keep up the three judges which they had
hitherto had, and that it should be declared that
in case of a vacancy it should not be lawful fur th-
crown t fill up the vac incy without having recourse
t r parliament. He thought it seeme I unwise, without
ci en sing the hardship in any particular cam-,
that Mr. Hargreave, who had been for many years
in the exercise of his judicial functions, and had sue
ceeded in overcoming prejudice and giving great satis-
faction ; he repeated that it seemed unwise, instead of
giving that gentleman a sufficient salary to do the work
for which he was competent, that they should give him
a very considerable retiring pension without requiring
any services whatever. He hoped that the author of the
measure would consider this matter. It seemed to him
that his right hon. feend the member for Ennis (Mr.
Fitzgerald) said that persons who could get their estates
disposed of at a small cost in this court would no longer
go to the Court of Chancery ; but it seemed to him that
this was not so much a reason against this measure as it
was a reason for diminishing the expenses of the Court
of Chaucer;-, and doing away with some of the forms of
that court, rather than clipping the wings af this new
court. He should readily give his vote for going into
committee on this bill without having a select com-
mittee. He trusted that in establishing a court, which
he bad no doubt would be very useful to Ireland, it
might hereafter be useful to England ; and he must say
he was glad that the government was giving attention to
this measure with the view to carrying it this session.
Mr. MALINS thought that there could be no second
' opinion as to the principle of this bill ; and the onl)
question was, whether there should be a committee
of the whole house or a select committee. No doubt
a select committee would embrace most of the prac-
tical men in the house ; and it they could insure
their attendance constantly, he should feel inclined
to concur with the proposition of the right hon.
member for Ennis (1(r. Fitzgerald). There, however, it
would be a discussion between lawyers ; and though it
woull be the same in that house, there would there be a
considerable body cf assessors. On the whole, he was
in favour of a committee of the whole house. He con-
curred in the universal opinion that the Encumbered
Estates; Act had been of great advantage to Ireland, and
he thought that the same principle should be extended
to unencumbered estates. Not that he thought that
there were many unencumbered estates. (A laugh.) He
was surprised that his bon. friend had not adhered to
the principle of making this court a branch of the Court
of Chancery. He was surprised to find in the 39th
section the power was given to this court which h'ad
been taken away from the Court of Chancery. He al-
luded to the power of sending a special case for the opi-
nion of a court of law. With respect to land generally,
there were more morgages than sales of estates, and
therefore he did n ;t see why the mortgagee should not
' have a parliamentary title as well as a purchaser. He
believed that a great number of the estates purchased
under the court had been mortgaged immediately after.
He was for at once proceeding to a committee of the
whole house, and for rejecting the proposal for sending
, the bill to a select committee.
Mr. I. BUT r entirely approved of the principle of the
bill, but objected to it as not going a step further in
making the tranefer of land as easy as the transfer of
stock. He saw no insuperable difficulty in connection
with land to prevent so desirable a consummation. In
Ireland they had a system of maps which would enable
them in a moment to identify the smallest parcel of land
in the country. This was with respec tto land the great
difficulty, but in Ireland it was a diffices ty overcome, and
therefore he did not see why the present desirable oppor-
tunity should be allowed to pass for making a most im-
portant piece of legislation complete. A great defect in
the working of the court was the expiration of the
parliamentary title with the first purchaser, When
the property was purchased in the court the title was
declared to be indefeasible, but if at the end of ten years
the purchaser wished to sell his was obliged to go
through all the expensive searches and delays of the old
system. Why not allow this indefeasible Parliamentary
title to be transferred with every transfer of property ?
(Hear, hear.) He had also complaints to make of the
machinery proposed, which with an increased amount
of work, was to be very much diminished in numerical
force and efficiency. The hon. and learned member
proceeded to point out matters of detail in which be
thought the bill was imperfect, and from which he con-
tended that a discussion of it before a select committee
was indispensable. It, theref ire, the right hon. and
learned member for Ennis divided, he (Mr. Butt) should
go into the lobby along with him.
Mr. ADAMS was opposed to the motion for sending the
bill to a select committee, considering that every point of
investisation had been exhausted by the royal commis-
sioners. With respect to the number of judges, it should
be remembered that the amount of business would roost
probably diminish year by year, and then let them remem-
ber how difficult it was to remove a judge when once ap-
pointed, while, if the business increased, an addition to the
staff could always be made with facility. (Heir, hear.)
lie diirnot believe that there would b 3, as had been stated,
more difficulty in dealing with unencumbered estates,
than was experienced in dealing with the encumbered
estates. In fact, even fictitious encumbrances were got up
for the purpose of obtainiog the Parliamentary title. But
they were not about to establish a new principle, but
merely to extend the application of a principle that had
been eminently successful. They had the machinery ready
to their hands—a machinery which had been found effi-
clout in carrying out the experiment which had been made.
The great difficulty of increasing the number of, small in-
dependent freeholders in Ireland—a class which,fortned a
most valuable portion of the population of this country—
had been the expense of clearing off encumbrances, and the