the horse fell, and the only remaining flask of air, as well as one of the barometers, was broken by the shock.

The interval which elapsed between the moment of their departure from the Observatory and the moment at which they disembarked, was an hour and twenty-seven minutes, in which time they passed over a curve whose base measured on the ground was fortytwo miles, its highest point being twenty-three thousand feet. A programme of the observations and experiments, to

be made at successive elevations, and in certain foreseen contingencies, had been prepared for them by MM. Arago and Regnault, but the accidental rupture of the balloon rendered it impossible to realise this, and the enterprise was, to a certain extent, again abortive; nevertheless, some of the facts and phenomena which were observed, and which we have explained in the present article, will be regarded with profound interest by all physical inquirers.

We have occasionally, in the pages of this magazine, noticed various measures introduced or passed by the legislature, which, in their design or results, were likely to be productive of great political and social changes. Some of these measures have been the great dividing watchwords of the several parties contending for the government of the empire; others, and not the least important, those which silently operate on the improvement of our fellow-man, in his domestic and civic relations. And we have thus endeavoured at once to influence opinion, and to present to our readers "a brief abstract and chronicle of the times." In pursuance of this plan, we shall now proceed to state in detail the establishment, the object, and policy, and working of the Incumbered Estates Court, and the share which it may probably assert in the future progress of Ireland.

In the early periods of our history the mercantile classes exercised very little influence on the spirit of legislation-the warlike barons, the large landed proprietors, engrossed all power, and, with a natural and excusable jealousy, endeavoured to perpetuate their power, by perpetuating in their families the property from which their power was almost wholly derived. Hence sprung the law of entail, and that which secured the freehold from being sold for payment of debts; and hence, too, the frequency and complexity of family settlements and intricate wills, giving but a limited dominion over estates to persons, as the

legal phrase termed them, in esse, and clogging those unborn with fetters and charges greatly restricting the utility of their interest in the descended inheritance. In the progress of time it was slowly discerned how unjust was the operation of these jealous precautions of the landed aristocracy. Creditors were frequently defrauded. The death of even an honest debtor allowed an entailed estate to descend to the next proprietor or heir in tail, freed from his ancestors', perhaps his parents' debts, and he again repeated the system of doubly spending his estate, squandering the income of which he could not be deprived, and the sums procured from the trusting confidence of his creditors. It was a very slight step to prevent the recurrence of this injustice, that by legal fictions, and not by the legislature, estates tail were allowed to be barred or defeated by some intricate legal machinery, and that a judgment-creditor was, by the generosity of those early law-makers, permitted to get into possession of the rents and profits of half the debtor's landed property; and that in Ireland, by a stretch of judicial authority, the absolute estates of a deceased debtor were liable to be sold to satisfy the demands of creditors by judgment. The reasonable demands of simple contract-creditors, who were frequently the most numerous and deserving class of creditors, to be paid by sale of their deceased debtors' estates, were long disregarded; and it was not until the year 1833 that fee-simple or freehold estates were made liable, by

an act of the legislature, for the payment of the simple contract debts of a deceased debtor. While such was the state of the law as regards judgments affecting fee-simple and freehold property, the spirit which was impressed upon all persons by the early legislation, extended to the owners of what are technically termed chattel interests in land; in ordinary language, to the owners of terms for years, e. g., fifty, or one hundred, or one thousand years, even if rented from a fee-simple proprietor. These terms were also made the subject of strict settlements and of curious wills, and thus the practical state of the land, as regarded terms for years, was assimilated by the owner very closely to that of freeholds, neither being an effectual or easily sold security for payment of debts.

Some attempt to redress the injustice produced to creditors by this state of the law, was long since made in favour of the creditors of one class of the community-traders. The bankrupt code has long had a place amongst our statutes, but the redress was only partial and incomplete, and served but as a contrast to the injustice which, in other cases, was allowed to prevail to its fullest extent, and by which the property of debtors was secured from their creditors, or made available at a ruinous sacrifice of time and expense to both parties.

The only mode of proceeding known in Ireland to realise debts by sale of the landed property of the debtor was by a bill in either of the Courts of Equity, the Court of Chancery, or Equity side of the Exchequer. A judgment-creditor might, indeed, by a writ of execution called an elegit, issuing out of the court of common law in which he had obtained his judgment, get into possession of a moiety of the landed property of his debtor, and receive the rents until the debt was satisfied; and a mortgagee might, by ejectment, enter into possession of the land comprised in his security; but these remedies were subject to many disadvantages, and were generally productive of most expensive litigation between the creditor and debtor, to compel accounts of the sums due on foot of the judgment or mortgage, and of the receipts of the rents and profits received by the creditor out of the debtor's estate. It was a tardy remedy in either case, and no control could be

exercised over the debtor in the management of his temporary estate, of which he had the profits, but without the duties or powers resulting from regular ownership of the soil. It was deemed advisable to substitute for this species of legal remedy, by which the judgment-creditor could only get possession of half of the freehold lands of his debtor, and was subject to no control or moral responsibility in the exercise of his legal rights, a remedy in equity somewhat resembling the execution at law, in its being only a temporary divesting the owner of the profits of the land, and appointing receivers, subject to the control of the Court, in place of the bailiff or agent of the party, who was subject to no control whatever. Accordingly, in the year 1835, the legislature which, composed as the great majority of it then was, of landed proprietors, would have been startled at the novel proposition of making land readily saleable for payment of debts, did not hesitate to give judgment-creditors a remedy by receiver over all the debtor's estates until the debt was discharged. This was analogous to the old remedy by elegit, and was thought to be a considerable boon both to debtor and creditor; to the one, by rendering less frequent the wasteful remedy of elegit, and to the other, by allowing him, through the medium, indeed, of the intricate machinery of a Court of Equity, to enter into the receipt of the rents of all his debtor's lands, instead of being restricted to half. Nothing, however, could have been more disastrous than the effects of this legislation. The evils formerly prevailing, of there being temporary owners, unable and incapa ble, from their limited right in the land, to be judicious, improving, or even humane landlords, and wholly uninterested in the tenants' welfare, were increased one hundredfold. The lapse of fifteen years had extended receivers over all the counties in Ireland, and it is not an exaggeration to state, that if the system had not been checked, in a very short time one-half of the landed property in the kingdom would be subject to the baleful dominion of the Court of Equity and their officers' receivers. Bills for the sale of the debtor's estates were rather less frequent. By the operation of an Act, generally called " Pigott's Act," from the name of the Lord Chief Baron,

passed when he was Attorney-General, in the year 1840, a bill might be filed in the debtor's lifetime to raise, by sale of his estate, a judgment-debt due to his creditor: but the benefit to creditors of this provision will not appear very great, when we detail the machinery and progress of an ordinary suit for sale of the debtor's estate.

The first step to be taken by a mortgagee or judgment creditor to sell the estate, subject to the claims, was filing the bill. This was a long statement prepared and signed by counsel, setting forth, in the most minute and prolix language, the claims of the plaintiff, whether a creditor by mortgage, judgment, family settlement, or otherwise; and with the same minute accuracy tracing the title of the parties who conferred those rights on the plaintiff, and of all other persons having incumbrances affecting the estate to be sold. Every judgment or mortgage creditor had to be carefully sought out, and made a party to the suit, either by a formal notice as prescribed by the rules of the Court, framed in 1843, or by the more expensive and dilatory method of serving him with a subpœna to appear and answer the statements in the bill. If it appeared on the investigation of the title of those incumbrancers who were necessary parties as defendants, that since the creation of the incumbrance their rights had been the subject of settlements, or had passed by wills, or had devolved by law on others, they too had to be ascertained; and to make, as it was called, the suit "perfect," minor suits were frequently instituted in the Prerogative Court to obtain administration or probates, for no possible real good or advantage to the litigants, the creditors, or owners of the estate. The cause of all this merely preliminary expense was the doctrine that Courts of Equity acted against the persons of the suitors, and not against the property to be sold; that the Courts could not give any title; and that the only mode of transferring the legal estate in the land was by compelling all those who were made parties to the suit, and brought before the jurisdiction of the Court, to join in the conveyance to a purchaser, which then derived its validity, not from the adjudication of the Court, but from the acts of the parties. The Court gave no title to the land sold; caveat emptor was the

maxim on which it acted; and hence the necessity of the complexity of the suit and multiplicity of parties, the rule being, that every person who by possibility had an interest in the estate, or the proceeds of the sale, should be made a party to the suit. But the institution of such a suit did not prevent others; many such suits might be instituted by the several creditors on an estate, and fortunate indeed was the inheritor or nominal owner whose estate was the subject of only one suit in Equity, and not the prey to be pulled in pieces by rival suits in the same or rival Courts of Chancery and Equity Exchequer. To enhance the burden on the already oppressed proprietors,' the legislature thought that impoverished estates and needy creditors were suitable objects for bearing taxation, and the several proceedings in the Equity Courts were subject to heavy and repeated stamp duties and fees of office, Every defendant to the suit was at liberty, and many were forced, to put in "answers" to the plaintiff's bill. This answer was a long, minute statement, prepared by counsel, and verified on the oath of the answering defendant, admitting or denying the formal allegation in the bill, and if he had any rights submitting them to the judg ment of the Court. When all the answers were put in, then followed the necessary proofs on the part of the plaintiffs and defendants, another fertile source of great delay and expense; and if the suit, originally perfect, did not experience some of the many cross aceidents and expensive fractures caused by deaths, insolvencies, bankruptcies, marriages, assignments of the old parties, or births of new necessary parties, the case was brought to "a hearing." The preliminary stamp and fees may here be stated, and they, it will be noticed, are exclusive of attorneys' charges and counsel's fees. On filing the bill a sum of 12s. 6d. was payable; on each subpoena, which included four defendants, and of these there might be many score-in Mahony v. Glengall there were eighty answering defendants-10s. 2d.; on attested copies of all pleadings in the Court or Master's office (and the cause could not be heard without one complete set of copies taken out and paid for), 6d. per office sheet of seventy-two words was payable. This was so great a tax that £10 to £20, and even more, was a sum not

unfrequently paid for an attested copy of the plaintiff's bill, or a defendant's answer; and the stamps on the other documents, as affidavits, &c., were equally oppressive.

Suppose, however, all this expense was incurred, that every necessary party, whose presence before the Court was essential to make the suit complete, was properly represented, that the suit had not been subject to or had survived the various cross accidents before alluded to, it was in due time, after many months had elapsed from the commencement, frefrequently after some years' delay, brought to the first hearing. The great delay which usually, and indeed almost necessarily, elapsed from the institution of a suit to this hearing, may be best judged of from one of the Orders of Chancery, made in the year 1843, and which had for its object the cheapening and expediting proceedings in the Court. By the eighty-first Order, it is provided, "that if, after the expiration of ten years after the filing of an original bill, the cause shall not have been heard by the Court on the pleadings, the same, and all supplemental bills and bills of revision shall, at the expiration of such ten years, be dismissed out of Court without costs, unless, upon application to the Court by motion before such period, the Court shall think fit to allow the plaintiff further time to prosecute his cause." This period of ten years was then deemed a reasonable time to allow the plaintiff to mature his cause to the first hearing; and those who have had any acquaintance with the practice of the Court will readily admit, that this period was not too hastily or unnecessarily adopted. Similar delays produced a corresponding rule in the Court of Exchequer. The cause being set down for "a decree to account," or first hearing, briefs were given to counsel for the plaintiff and the several defendants who appeared in the cause. Plaintiffs

generally had three counsel; defendants two; and the importance of the hearing, and the utility of this expense, which could not be avoided, may be judged of from the fact, that an ordinary mortgage or judgment creditor's suit was usually heard as a "short cause," and occupied not more than five minutes in the hearing and solemn adjudication. The plaintiff's junior counsel said, "I open the bill:" the

several counsel for the defendants said, "I open the answer of A. B., one of the defendants;" and then, the plaintiff's senior counsel generally stated his client's case, thus:-" This, my lord, is a bill filed by C. D, a judgment-creditor of E. F., deceased, or creditor by mortgage of E. F., to raise the amount of the incumbrance vested in him, and affecting the lands in the pleadings named, and prays the usual accounts; and the rights of the plaintiff are not contested, and we shall therefore, with your lordship's permission, take the usual decree to account." This, or some similarly short sentence, being uttered, the Lord Chancellor added a brief assent, and the decree was afterwards drawn up formally, by which one of the Masters of the Court was

required to report what was due for principal, interest, and costs, on foot of the plaintiff's demands, and also to ascertain the sums due to all other

parties having incumbrances, such as judgments, mortgages, family charges, &c., affecting the lands sought to be sold. We shall not more fully describe the practice and evils of this expensive absurdity, by which years and vast expense were consumed in obtaining a formal preliminary inquiry by a subordinate officer of the Court. They were forcibly detailed in the evidence of Isaac Butt, Esq., and of Sir Edward Sugden, formerly Lord Chancellor of Ireland, before the Committee on the Poor laws, which sat during the Session in the year 1849.

After the great delay, and heavy labour, and vast expense of this formal adjudication, it might, perhaps, be expected that but little else remained to be done, to entitle the patient incumbrancer to get his money, and to release the unfortunate proprietor from the toils and horrors of equity suits. Not so. The plaintiff having obtained a decree to account, thought that a vast feat had been accomplished, and generally recruited his exhausted strength and purse by a long sleep of months, and then leisurely proceeded to have the account of his demand, and those of others affecting the estates, taken in the Master's office, where every part of the machinery was calculated to create delay, and could not be set in motion without expense. First, a copy of the decree was brought into the office; the time allowed for this step was two months from the

pronouncing of the decree; and then at the same measured pace followed a summons to all parties to take the Master's directions, on which summons, of course, was a stamp, amount thirteen shillings, and a fee of one shilling was payable for each party served; these charges, filed at long intervals by each claimant, which were in fact halflength portraits of the bill and answers, set out with great prolixity the nature and amount of the claims; and if these were disputed, a discharge denying or qualifying each statement was filed by the plaintiff, or other party authorised by the Master; summons and additional meetings followed for each charge filed, and at last, after a necessary delay of many months (it was very seldom indeed that the accounts were taken within three years), the report was drawn up, and, if no objection was made, settled and approved of by the Master. This report, as was every pleading in the Courts of Equity, was a long document, stating the date and substance of every mortgage, charge, or judgment affecting the lands, which was proved before the Master, and finding the relative priorities; and annexed to the report were generally attached schedules, which were repetitions, in a concise form, of all the previous reports, and were usually the only intelligible or useful part of it.

The report of the Master being at length obtained, the cause was a second time set down for hearing on report and merits, when a repetition of the expensive formalities of the first hearing took place, and then what was called a final decree, but which term "final" by no means included a termination of the proceedings, was made, directing payment of the several incumbrances by the owner of the lands within six months, and in default that the lands should be sold for payment of the several reported charges. The time passed without payment, and the preparations for sale were made in the same leisurely manner that characterised all the previous proceedings. We before stated that the Courts of Equity did not attempt to warrant the title to a purchaser, and conferred no title by its decree. Hence, all persons claiming interests in the estate were made parties to the suit, and the final decree being pronounced, the title to the lands was rigidly investigated by the plaintiff's soficitor, previous to obtaining a posting

VOL. XXXVINO, CCXII.

for sale of the premises. An abstract of the title was drawn out from such information as he could obtain, and submitted to his counsel. His duty was to read the abstract and all the proceedings in the cause, and then state his opinion whether a good title was made out, and all proper parties before the Court, to force a purchaser to accept the title, or what the defects were, and how they could be remedied by conditions of sale, additional bills, and decrees, or otherwise. Supposing the title good, and the proper parties before the Court, the property advertised, and the day of sale arrived, it did not at all follow that the lands were sold; on the most frivolous suggestion of any of the parties, on the complaint of some creditor whose demand the fund never could pay, on a hint from the plaintiff that some fifty pounds more might be obtained at another time, the sale was postponed, and this might occur frequently. The person having the carriage of the sale had almost an absolute control over it, and repeated adjournments were usually the course before the estate was finally sold.

But when at last the land was sold the delays were not over; the purchaser had to investigate the title, and to be satisfied that the facts were correct; frivolous objections were made and removed, substantial ones argued before the Master, and from his deci sion there were appeals to the Master of the Rolls and Chancellor, and after another delay, always of months, often of years, the title was perhaps accepted by the purchaser; and then if the funds were more than the expenses of the suit, the money was distributed, after another prolix document was prepared, called the allocation report, attended with the same formal preliminaries of orders and summonses.

We have, perhaps, been ourselves guilty of the faults which we ascribed to equity proceedings of great delay and prolixity; but it is necessary to bring before our readers the very great evils attending proceedings in these courts, that they may judge how urgent was the necessity for applying some prompt and effectual remedy; and if that remedy is attended with some. inconvenience, how greatly the advantages preponderate. In fact, the mischiefs arising from the former state of the law and the practice of

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