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

LONDON, SATURDAY

degenerate into another Court of Chancery, be should be
sorry if it did ? but the right hoia. gentleman had himself.
-of the 1
haensitmheiladrapcgoeurrtofassuaolb,r_ uanc.b.
a egenera-
tion would have been much reater,
peroouprotseodf
ct to a ens
ct
earbyl
,i s
wh
gen-
tleman objected to the proposed power
right hon. g‘p,oT
wer to the court to
appoint receivers. He shol3:ct be sorry to see anything
like a system of permanent receivers, which had been
the curse of Ireland ; bu,t he thought it would be desir-
able the court 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. Toe 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 unfavuuraiade 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 in praise
of the eminent persons to whom he referred. He thought
the country owed a debt of gratitude to Mr. Longfield
and Mr. flargreave, 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 names he had mentioned
had from the first set themselves to work in such a man-
ner as to gain for their curt the highest reputation.
The question cf an increase in the number of the judges
was a fit subject for consideration in committee ; but
the result of the inquiries of the committee of that house
and the commission of 1855 had led him to the conclu-

son 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
ghoul 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
regardei the employment of conveyancing counsel, which
was one of the recommendations of the chief commis-

sioner, he might observe that at present, when a title
was brought into court it was in the first instance re-
ferred for ex smination 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 hitherto unsatisfactory and needlessly expen-
sive to 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 ()lit
of Chancery as a proper tribunal for the sale of law], he
should rather have expected him to rej nice 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
some before the court. The only other observation which
ho would 'make related to the 50th clause, by which
the title was declared to be conclusive and indefeasible.
On that subject ho would remark that all that was done
by the clause was to declare that the particular title
described in the declaration was conclusive and inde-
feasible. 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 reaistration 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 of 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
one 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 of a similar measure for the
benefit of the landed iatereat of England. (Hear.)
Sir R. BETHELL begged to assure the hon. and
learned gentleman (Mr. Whiteside) by the remarks which
he 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 he 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-
ordin .tej urisdicti which, neverthelese, 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 c iurt to have another thing done.
That was a difficulty of the most setious kind; and he
thought it would be the best that the means of meeting
it should be 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
arie in which the subject matter would be partly landed
property and partly personal property ; and as the bill
shod it was necessary that the former should be dealt
with by one tribunal and the latter by the other. That
was a very great difficulty, and it could only be dealt
with properly by a Select committee. That was not,
however, his sole reason for advocating the appointment
of a Select committee. Contemporaneously with the
intro luction of this measure, Lord Cranworth brought
forward in the 11 mee of Lords a bill for facilitating the
sale and tran-fer of land in England. That bill having
come do cu to that house, it was his intention to move
that it he referred to a select committee, and as it pro-
posed to give to the court of equity in England precisely
the same functions and powers that were delegated by
the pie ent bill to a distinct and independent tribunal in
Ireland, he thought it desirable that the two bills should
be cored bored by the same committee. There was ano-
ther subject which was undoubtedly of very great im-
portance, and on which a measure had been prepared,
which he (Sir R. Bethel]) 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 soma important matters which were omitted in this
bill. The bill gave power to any owner of an estate to
an "owner" was described in
as the owner of any limited
applythe
interpretation to
l andau s e
interest.
Mr. WHITESIDE said that had been corrected, and
the clause referred t) the owner of an estate in fee simple.
Sir R. BETHELL —lt might have been corrected,
but still it] was a most difficult problem to determine what
measure of interest should be deemed sufficient to call
the new court into action. The 38th section provided
that the court should have power generally to ascertain
and declare the rights of all parties in any land in re-
spect of which application 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
the control of the court, aed the court would then have
power to declare what was the interest of every per-
son concerned. That was, in his opinion, a duty which
ought not to be entrusted to any but the highest j nciis
c he fully concurred in the en-
comiums althoughbeen passed on the two gentlemen
trib tribunal u
which
h ad
who had presided in the Encumbered Elates Court.
These were matters which would he best censidered by
a select committee, and he trusted that the right hon.
gentleman (11r. Whiteside) would ascent to that view.
The ATTORNEY-GENERAL had heard with great
satisfaction, though not with surprise, his hon. and
learned friend's ascot 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. lie agreed with the right
hon. gentleman the late Attorney-General for Irellud,
that it was impi-s,ible to be too cautious in dealing with
such a subject :s thi,, involving, as it did, the security
of th 3 landed property of the kingdom. It must not,
however, be forgot-en 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 (Hear, hear.) In considering the ques-
tion whether they should proceed at once with this bill,
he ',weld not help !effete ing on the great and mighty
benefits which would accrue to Ireland, and in the end
to England, if they could succeed in establishing a court
with enlarge] jurisdiction and adequate functions, under
which the titles of land might be effectually registered,
and which might be made the foundation of a general
system of transferring land. Tee benefits which might
be expected to 3,41..1 fr m that s urce were incalculable.
(Hear, hear ) His a tention hail been locg directed to
that i,ulje.cf,
aed the report of a committee, of which his
hon. and Darned friend (Sir R. Bethell) was a member,
guaranteed to the house the entire practicabitty of
e,Liblishing, 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 eneutiobrancee had been created in order to
create a fictitious jurisdiction in the court to effect that
which was f ,tied to be ED great a
enefit to all per
sons interested in the transfer of lband. And when
they were threatened with the danger of cenferring so
Moat a jurisdiction on a court to be created he thought
that they had only to consider what might now be done
iedireet'y in the Encnmberel lates Court, and di-
riictly, both in England and Ireland, by means of the
Court cf Chahccry ; and those dangers and difficulties
would o itirely disappear. The power of the Court of
Chancery in snits for specific performance was analogous
a° t o any difficulty which might be apprehended. If a
gentleman ia this country had 1,000 acres of land which
he desired ten times in the course of his life to raise
money upon by inort;al,e,
or to otherwise enter into
transuctions affecting his title, ten times over must he
inner the expewies of investigating the entire title of that
estate. In many cases where the estate was not large,
but the title somewhat ancient or complicated, it might
be found that the whole value of the estate in fee sirup's
hal been spent living the lifetime of one man, in re-
peated invs tigations of the title. So again, if a gentle-
man desir.-d to sell two acme; out of 2,000, he must g
throu:h the whole expense of investigating the title, the
-Wile as be would incur in selling the fee simple of
the ethic estate. If a person during a portion of his life
shout] cdl on several occasions several portions of his
estates, he would incur on those several occasions the
co uplete expense of investigation of the title, and it was
iinpossib;o to say how much of the fee simile would be
wasted in that investigation. Whereas if it were done
under tide bill it might be done by one single investiga-
tion of the title, and a declaration of the title would be
given by the curt, so that the owner from that date
got in effect a new title, and when, from that time
forth, he should desire to mortgage, even over and