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may be applied undiminished to the how benefici.A he may conceive it to land; and they are unable, from want be; he must first get the permission of capital themselves, to advance one of the master in the cause---his appli. jut the agriculture of their estates, cation for this purpose will very proeither by example or instruction, by bably be resisted - the interest of the practical farming, by schools, or any encumbrancers will be to be paid their other means. Very many of our gen- money as quickly as possible, and they try would gladly divest themselves will naturally oppose any outlay on of the endless litigation and embar- the estate, of which they can never rassments which the cloud of charges hope to reap the benefit. Add to this, upon their estates, mortgages, judg- that the appointment of the receiver is ments, annuities, jointures, imposes a matter of patronage, not of selection, on them—the very law.costs connected
and that the most inefficient persons, sowith these charges, together with the licitors, barristers, and physicians, are costs of enforcing the rents of a large appointed to this office, instead of coun. rack-rented property, to meet these try gentlemen, or others, whose purvarious and overwhelming demands, suits would qualify them to discharge wholly absorbs the wretched remnant their duties efficiently. Thus the pro. of their estate which is left to them- perty continues for many years managed but, it is impossible to bring such an at great expense and great disadvantage, estate as this to a sale by any process daily decreasing in value, until at last now available-a bill in Chancery it is brought to sale. But this again, must he filed, all these encumbrancers in many cases, only opens a fresh must be made parties to the suit- scene of litigation—the purchaser they are scattered over various quar. objects to the title, the objections are ters of the world, yet they inust be argued in court, and he is discharged served with notice of the proceed. from his purchase. All this entails ings—they die in the progress of the fresh cost on the property; at last it is soit, and bills of revivor must be filed sold, with a flaw in the title-and what to bring their representatives before estate will not ingenious counsel disthe court. Any one at all familiar cover such in-and of course proporwith legal proceedings in this country tionably diminished in value-the knows well that there are many causes money is at length distributed, and which have been given up by succes- paid over to the several claimants, sive solicitors in despair, from the many of whom may have become inperfect impossibility of getting a per- solvent while they were waiting for it, fect suit; and in many other cases and all of whom have lost opportunithe suit has continued in existence for ties of using it productively and bene. upwards of half a century.
ficially. The bill which is now before But supposing that a bill is filed parliament will remedy some of these for a sale, what is the position of the evils-it follows, to some extent, the estate? A receiver is appointed under analogy of the railroad acts—it prothe courts, shortly after the filing of vides that, whenever any person having the bill, and then, indeed, the condi- a charge on an encumbered property tion of the lands and of the tenantry shall be desirous for a sale, he shall, becomes hopeless. If absenteeism be on petition, obtain a reference to the an admitted evil of the greatest mag
master to ascertain whether it be a fit nitude, an evil which not even the property to be sold under the proviresidence on the estate of one of the sions of this act, as an encumbered mapy zealous and intelligent agents estate-and on the master reporting who are now to be met with in Ireland that it is so, that forthwith the estate can compensate, what may not be should be sold, and the money lodged imagined to be the consequences of in court, and that all litigation behaving the lands handed over to a tween the several incumbrancers should receiver of the Court of Chancery. take place, with respect to the money He has no controul nor directing power thus lodged, and not to the estate it. over the estate-his duties are con- self. The land is at once to be sold; fined simply to that which the name all the management by receiver, with implies, to the receipt of its profits, the expense and disadvantage conseand to the payment of the charges to quent thereon, is done away with the which it is legally subject. He has no property passes at once into the hands power to make any outlay, no matter of the purchaser, and, by the bona fide
payment of his money into court, he nearly eight hundred thousand pounds, obtains a title which never can be or about one-twentieth of the entire questioned-a parliamentary title, good rental of the country, from the unaagainst the world. Such is the act as voidable mismanagement of receivers it has been introduced into the upper under courts of equity. The followhouse--such are its advantages. Had ing table, from the digest of the Devon it been in force a few years ago, it Commission, just published, will illuswould have liberated upwards of one trate the evils of the present system :thousand estates, yielding a rental of
The inadequacy, however, of this accomplish everything that is needed. measure, to meet the exigency of this It would be to give to some properly country, is equally apparent; the constituted authority the power of dething which is needed is, to transfer termining when an over-heavily incumthe land from an embarrassed to an bered estate should be sold, and of independent proprietary. This bill instituting proceedings for such a purmerely facilitates such transfer by the pose. This would have the effect of time which is now lost in the progress at once bringing such properties to of the suit; it only applies to cases sale, and transferring their ownership where suits may be instituted; but it to solvent proprietors. The purchasedoes not hold out a single inducement money would be invested in the
govern to institute a suit. The incumbrancer nient securities, and the only change with is not brought one step nearer to his regard to the incumbrancers would be, money than under the present system ; that they would have the security of he bas not got a single additional the funds, instead of the security of the inducement to proceed to a sale. land, for their money. Neither would He sees, indeed, a transfer of his the funds themselves be over-heavily security effected, and government loaded ; for by as much as they were stock substituted for landed property ; burthened at one end by the investbut the litigation for this money will ment of the purchase-money, they not be one atom less than it is under would be relieved at the other, by the the present system, for the land. The amount which would be sold out by same claimants must be brought before the purchasers. Doubtless, if any inthe court, the same rights insisted on as cumbrancers were to object to the seunder the present system, and the same curity which they would thus acquire delay and expense incurred in establish- in the funds, or would prefer four or ing those rights. We make these ob. four and a half per cent. interest, servations, not with a view to depreci- with the present uncertainty of pay. ate this bill, but to guard against its ment, to the lower interest, and the effects being over-estimated. It is
greater certainty of the government admirable so far as it goes ; but the securities, they should institute proquestion is, should it not go farther ? ceedings to realize their demands It is perfectly easy to see what would and unquestionably the hardship of
thus forcing a number of persons into tary, who, if they are to be held resa litigation, whether they will or not, ponsible for the duties which the posis, no doubt, considerable. But what session of property imposes, should at is the case at present?
Any in- least be in a condition to discharge cumbrancer, no matter how small his them :demand, or how puisne it may be, can exercise this very power-can involve “ The soil of the country," says our all the other incumbrancers on the es- author, in connexion with another substate in the litigation consequent on ject to which we will presently advert, taking legal proceedings for bringing
“is the property of the state, granted it to sale, in order to realise his de
to its possessors to use, not to destroy. mand. And is it not too much to say,
It is a trust for the benefit of all, which
should be guarded with peculiar care; that every insignificant creditor shall
because while limited in extent, all have the power, and that hitherto, and must ultimately derive their support if the present bill does not pass, it from it." should have been at his option to throw great estates, comprising in some We are fully conscious of the diffiplaces large districts of country with culties with which such a subject is a numerous and impoverished tenantry, surrounded, and of the temper and under the management of a receiver consideration with which such a mea. of the Court of Chancery, and that sure should be framed, but it has now neither in that court itself, nor in any become a question on which the very other authority, should the same dis- existence of the country depends, it is cretion have been vested, to be exer- a matter of vital importance to wed cised with such incalculable benefit to the capital of the country to the the whole community.. The Lord soil. Chancellor of England, in introducing The means which we have suggested, the present bill last February, said- by which this union is to be effected, " It would be impossible to effect the by which the proprietorship of the soil proposed alteration without doing is to be identified with the wealth and much that might be considered incon- not with the poverty and embarrasssistent with the rights of property. ments of the country, is different from But he would ask, why should the in- that which is proposed by our author. terests of individuals, and of the com. We propose THAT ENCUMBERED munity, be disregarded for the sake of TATES SHALL BE SOLD; that the purmaintaining mere abstract rights? In chaser shall, on depositing his money the case of lands purchased for the use in court, at once have a good title to of railways, no such hesitation was the land, and that the several incumfelt.” When a railway company is brancers, if they think proper to draw once sanctioned by act of parliament, out their money, and do not choose to it enters on any man's estate through acquiesce in the public securities in which it is proposed that it should pass, which it shall be invested, and to draw and if there be various incumbrancers their interest from the public funds on the land, or any difficulty in making instead of from landed property, shall out title, it lodges the purchase-money proceed to assert their claims to the in court, and forthwith has good title purchase money, as they now would against the world by virtue of the act to the land itself. The remedy on of parliament. The several incum- the other hand, proposed by Mr. Pim, brancers are put to establish their is the abolition of entails, and of the respective titles to the purchase-money, power of settlement. with which the company has no con- We cannot but think that Mr. Pim's cern whatsoever. Is it then, we again views upon this subject are founded on ask, too much to require, that if a misapprehension, and that when he propublic company shall have this power, ceeds to support his case by citing the infrom which the only advantage that jurious operation of the strict system of we gain, is a greater facility of passing entail which prevails in Spain, in Sardifrom one district of country to another; nia, and some other countries, he is reathat some properly-constituted autho. soning from a state of things which is rity shall be invested with the same wholly unknown to England or Irepower, for the purpose of transferring land. Neither in England nor in this the ownership of our land from an country is there any such thing as insolvent to an independent proprie- strict entail known. The only in
stances of it are the properties co
con- case of large estates; but, generally ferred by act of parliament on the speaking, it only puts the father, if he Duke of Marlborough and the Duke have a large family,on the necessity of of Wellington. In Scotland, indeed, injuriously crippling himself for life
, the law of strict entail prevails, and in order to scrape together, from his has done so for the last two centuries, life-estate, a provision for his younger and now extends over more than one. children; while the unborn son, on whom half the landed property of the coun- it is so settled, may turn out to be the try ; but in England and Ireland it is very last member of the family on impossible. The law of these coun- whom the father would wish it to tries prohibits property from being devolve. This practice is a foolish taken out of commerce for more than one, and should be discouraged ; and the life of some person or persons in it would be well if gentlemen of the being, and twenty-one years after- legal professions, when instructions for wards; and so strictly is this rule held, family settlements are submitted to that a late decision of the House of them, would call attention to the in. Lords took an estate of four thousand conveniences that flow from it. It pounds a-year from the present Lord has originated in a servile imitaDungannon, merely because his an- tion of the habits of the great, and cestor had so devised it, that it might is so completely hostile to the nahave been tied up beyond the period tural disposition of mankind, which prescribed by law, although, in point never chooses to part with any controlof fact, such had not occurred, for the ling power they possess, that once it person designated by the testator took ceased to be thought fashionable, it it much within the prescribed period. would be no longer practised; but we The operation of the law of entail in can by no means concur with our author these countries is subject entirely to in his condemnation of the existing laws the will of the owners of the estate. as to the disposition of property, still If an estate come to its possessor, en- less in thinking that any alteration tailed on himself and his male issue, which they admit of would meet the and he dies without altering the dispo- exigencies of the country. The power sition of it, it will unquestionably go of jointuring and of settling estates to his eldest son; but it is in his for the benefit of children, is highly power, at any time he thinks proper, advantageous, when exercised within to open the estate, and to acquire the due limits. It conduces eminently to absolute ownership—formerly by suf- the stability of families, and harfering a recovery, now by a simple monizes with the whole constitution deed. It is, therefore, perfectly idle under which we live. It is essential to speak of the law of entail, as it to the preservation of the aristocratic exists with us, as interfering with that element of our constitution. And in freedom of sale which it is so desirable the case of encumbered estates, the that the land of the country should be charges of family settlements form a
An entail, once created, very small portion, indeed, of the inmay extend to a thousand generations, cumbrances ; mortgages, annuities, but there is not an individual in the judgment-debts created by the extrawhole series who has not the power, vagance, dissipation, and recklessness by following a simple form prescribed of the former proprietors, form the by law, to defeat the settlement at any great weight of incumbrance which moment, and give himself the absolute weighs down the present landed ownership of the estate, free to dispose interests of Ireland. The measure of it in whatever manner he thinks fit. which we have proposed is a strong Even when the estate is limited to the one, perhaps sounds to be a stronger first tenant for his life, and the in- one than that recommended by Mr. heritance entailed, the eldest son, on Pim; but we believe it would be much coming of age, by joining with his more efficient for the purposes to be father, the tenant for life, can dispose accomplished, and much less of an inof the estate. We think that it is a novation on the constitution of the foolish custom, and much too general country. In the words of Mr. M'Cul. a one, for a man, on the occasion of loch, an authority whom we cite behis marriage, to limit his estates to cause he is so much relied on by the himself for his life, and to entail the modern reformers, “ If we might be inheritance. may be politic in the allowed to hazard an opinion on soch a point, we should say that, in its pre- space admonishes us that we must sent state, the English law of entail has draw this article to a close. We will come very near perfection. It seems take an early opportunity of recurring to have hit the precise medium most to some other of the important topics desirable to be attained by giving every
which Mr. Pim's book suggests to us. individual that degree of power over We may say that we entirely concur the disposal of his property which is with our author, in his opinion as to necessary to inspire him with the de- the absurdity of attempting to estabsire of accumulating a fortune, at the lish what is called tenant-right by same time that it takes from him the law- the custom itself is in fact no. power of naming an indefinite series of thing but a clumsy contrivance to do heirs, and of fixing the conditions that which, with leases of proper duunder which his property shall be ration, say nineteen up to thirty-one always enjoyed.” And in the words of years, and certain termination, with the real property commissioners, “ The the proper fences, dwelling-house, and owner of the soil is, we think, invested offices provided by the landlord, should with exactly the dominion and power never be required the farm thus of disposition over it required for the should not owe the tenant a penny at public good, and landed property in the expiration of his lease ; the England is admirably made to answer tenant-right of Ulster, as it was well all the purposes to which it is applicable. explained by Lord Londonderry, on a A testamentary power is given, which recent occasion in the House of Lords, stimulates industry and encourages is a compensation for outlay, not for accumulation ; and while capricious occupation. Mr. Napier rightly prolimitations are restrained, property is nounced it to be “the test of the allowed to be moulded according to peace of Ulster—the effect, not the the circumstances and wants of every cause of its prosperity." But we must family." We would leave the law un. now conclude this article, and lay altered, as it has stood for centuries, but down Mr. Pim's book. We lay it we would give to Ireland a proprietary down with regret, because we feel who would be in a position to discharge that in our space we could not do it the duties of landlords.
justice. There is no subject that it Those duties are so various, and so does not discuss ably, eloquently, and extensive, that it would be impossible honestly. for us now to advert to them-our