which they are likely to produce, and their practical bearing and effect. every new principle and every modification in practice. Every important Act of Parliament will be ana We may take-as examples of the advantages to be derived, with reference to past and future legis-lyzed, and a careful Annual Index compiled, not lation, from our journal-the Poor Law acts, and merely of the cases reported in this periodical, but the act for the Sale of Incumbered Estates. The of those which have been reported within that time former will be entirely reconsidered in the next in Ireland. That portion devoted to Law Lists and session of Parliament, and it can hardly be denied Tables will be compiled with the most pains-taking that a preliminary and careful discussion of the accuracy. whole question connected with the compulsory relief of the poor, will be of great practical utility. We invite this discussion. Rapid and careful reports of the decisions pro nounced on the Incumbered Estates Act, and frequent statements of the practical working of the measure, must, we should think, be important, not only to the practitioner, but to half the landed pro prietors of Ireland, whose interests are so wound up in the measure. The questions and principles of law and practice to which this journal will be devoted, must necessarily be useful to every landed proprietor and magistrate-the laws which affect the one, and those which are to be administered by the other, will be frequently the subject of practical exposition. If we fulfil our part, the experiment will be tested, whether the Irish public will lend its support to a journal which professes to give useful information, apart from the struggles of party and the excitement of politics. For these reasons, if there were none other, the advantages of a journal in which present and future laws can be weighed and considered, are apparent, and these advantages are not limited, but universal; THE act for the sale of Incumbered Estates tn equally beneficial to the lawyer, the country-gentle-Ireland forms a very important chapter in the man, and the senator. The latter, in the progress of a measure through either House of Parliament, will have his attention directed to defects or omis. sions, and those niceties of detail which only strike the legal mind. Hence may be avoided "Acts to amend Acts," and laws rudely shaped, which yet deeply affect some of the most important interests in the community. We do not seek to set an undue value on the ability with which this journal may be conducted; our judgment may be wrong, but still we shall be useful, we are established, we are ready to hear the opinions, to receive the advice of others, and we shall form a nucleus, round which may be collected the opinions of men of capacity and intelligence. We promise to be influenced by neither persona! nor sordid motives; if we know ourselves and the spirit with which we have undertaken this journal our single aim is, to conduct it with an earnest desire for truth, impartiality and justice. We do not, however, mean to fill our columns solely with dissertations; the greater portion of our space will be occupied with concise Reports of cases which involve questions of law or of general interest. Thus, without interfering with the regular reports, it is our object to give information equaily authentic, and with more rapidity. It is both impolitic and dishonest to be liberal in promise and meagre in performance, but we may state, that it is our design to insert not merely cases which occur in this country, but also questions of law or interest which are taking place in others; variety of food, provided it be wholesome, is as agreeable to the intellect as to the body. We shall give Reviews of law works, and Biographies of eminent legal men, and Reports in full of interesting public trials, enlarging our space according to the press of matter, and the support with which we meet. It is our purpose to omit no source of information, consistently with our limits, which will be useful to the working practitioner of both professions, he will have the decisions of the judges almost as soon as pronounced, and will thus be at once apprized of history of the law of real property. We shall endeavour, in this article, to lay before our readers a general statement of the changes which this statute has introduced into the law. We neither seek to exaggerate nor underrate their magnitude, and our comments will be written in no unfriendly spirit. The bill, as introduced by Lord Cottenham into the House of Lords, contained no provision for the sale of lands without the order of the Court of Chancery-these were added to the measure during its progress through the House of Commons. Their dovetailing has marred the symmetry of the act, and we venture to predict this portion of it will be practically inoperative. The owner of an estate for life being invested with the power of selling the inheritance, it was necessary to provide stringent guarantees for the safety of incumbrancers and remainder-men-those which have been provided by the statute will occasion such loss of time, and such publicity, that no owner will be likely to resort to them, and a purchaser will prefer a sale by order of the Court, in which case his title will not be kept in abeyance for five years. The operations of the act will also be more limited than is generally supposed, as will be apparent from the fact that the owner, the first incumbrancer, and the incumbrancer having possession of the order of the court; a puisne incumbrancer cannot, title-deeds, can alone proceed for a sale under the except he is prepared to apply to the court for liberty to redeem the prior incumbrances, and-in case the amount of such prior incumbrances is unascertained-is ready to pay into court the amount claimed, to abide the result of the taking of an account, whilst he is precluded from questioning the validity or title of such prior incumbrances. Sec. 70. This will operate as a practical exclusion to all puisue incumbrancers proceeding under the order of the court; they will-and they form the vast majority of plaintiffs in courts of equity-consequently be obliged to resort to the present system of filing foreclosure bills. We now proceed to mention the principal alter-by a sale of so much of the security upon which ations and novelties introduced by the statute. they were charged, as will be sufficient for their 1st, It allows an owner to initiate proceedings liquidation, and to render the residue available for for a sale of his estate, for the payment of incum himself and his family. In fact the term owner in such brances affecting the inheritance; and an owner, cases was a mockery, he was in reality more often the as defined by the 1st section, includes every person agent of his creditors. He could not have effected from the tenant in fee, to the tenant by the cour- his purpose by a judicial sale, inasmuch as our tesy, and in the case of leaseholds, from the person courts of equity did not recognise the right of any entitled in perpetuity, to the possessor of an un-person other than an incumbrancer, to put its jurisexpired term of fifty years, not being an under-diction in motion for such a purpose. Neither lessee at a rent. 2ndly. It confers a parliamentary title on a purchaser; in the case of sales under the direction of the Court of Chancery, as soon as the conveyance is executed, and in the case of sales without the order of the court, within five years from the conveyance. 3rdly. In case of sales under the order of the court, the Master in Chancery has the power of apportioning head rent amongst the lots into which the land may be distributed for sale or reservation; but this power does not exist in cases where the sale is without the order of the court. 4thly. The owner of a judgment affecting lands may, under the provisions of section 72, release a portion of such lands, without nullifying the effect or validity of such judgment upon the residue of such lands, or any other property which it is intended should remain subject thereto. This power diminishes the evil of judgment securities, and will afford considerable facility in making title, not only under this act, but generally. could he have disposed of it by private contract, inasmuch as the law required the consent of every creditor, whose debt was registered a matter of record, to be evidenced by his executing the conveyance to the purchaser, or releasing the lands, as a condition precedent to the validity of the sale-a requirement, which, although intended as a protection to the creditor (whose interests would otherwise, in the absence of any controlling power as to the rate of purchase or mode of disposition, have been completely at the mercy of the owner) was, from its very nature, an absolute prohibition against alienation by a proprietor. In this dilemma-debarred upon the one hand, from all participation in the privileges of a suitor to the equitable tribunals of the country, and practically shut out, upon the other, from the right of disposition by private contract, with which, as we have seen, he was but nominally invested-the owner of an incumbered estate, desirous to sell, had no other alternative left him, by which to bring his estate into the market than to solicit the co-operation of a "friendly creditor," and to procure the institution in his name of what was well known by the title of "an amicable suit," the object of which was to obtain thus indirectly the intervention of a court of Equity. 5thly. All proceedings under the court are to be commenced by petition; the effect of this will be, to dispense with the necessity of all the steps hitherto required as preliminary to the taking of an account. All their old remedies, however, are left But here again the owner was not unfrequently to incumbrancers, it being optional with them to avail destined to find himself disappointed, inasmuch as themselves of the provisions of this act. But pend- the circuitous expedient of an amicable suit, as a ing proceedings for a sale, the court has the power means of converting the lands charged with incumto restrain proceedings at law or in equity for fore- brances into a fund for their liquidation, was depenclosure, redemption, or sale. Previously to this dent for its success, not merely upon the disposition enactment, until a decree in one cause was ob- of the friendly incumbrancer, but upon the priority tained, the court had no power to restrain the prose of his demand, or his ability to redeem the prior cution of any number of suits for the same purpose. incumbrances, which it was necessary, in the first 7thly. The Master in Chancery is the only ne- instance, to offer to redeem, otherwise his bill was cessary party to a conveyance to a purchaser, thus not in strictness maintainable, so that even the codispensing with conveyances from all persons hav-operation of a creditor was far from being a certain ing the legal estate. resource upon which the owner could fall back in his extremity. 8thly. It enables persons entitled to unredeemable charges, such as joiutures and annuities, to accept a gross sum by way of compensation, and enables the Master in Chancery to sell the lands discharged of those charges, and include the compensation in his report. This disability, on the part of an owner to sell his estate for the legitimate purpose of paying the incumbrances affecting it, has been removed for the first time, in the history of our Jurisprudence. Proprietors of incumbered properties are, at last, 9thly. The obvious design of the act is to trans-regarded as practically competent to sell them, fer litigation from the land to the purchase-money, which is to be lodged to the credit of the accountantgeneral. Such are some of the most prominent features of the measure which we shall from time to time canvass in detail. The distinguishing characteristic of the act may be said to be, that it confers power on the owner of an incumbered estate to initiate proceedings to get rid of the incumbrances affecting the inheritance without the assent of their creditors, and this they are empowered to do in two ways, either by private contract, or through the medium of a judicial sale, under the direction of the court of Chancery. In our next number we will examine the different modes of proceeding under the act, and contrast their relative advantages. GENERAL ORDERS FOR THE OFFICES OF THE TAXING 1. That the offices of John O'Dwyer, Esq., and Edward Tandy, Esq., two of the said Taxing Masters, shall, until further ordered, be held at No. 20, Upper Ormond Quay, in the city of Dublin; and the office of the third Taxing Master, to be appointed under the said Act, shall be in such place as the Lord Chancellor shall direct. (4.) A short description of the trust, and of the instrument creating it. (5.) The names of the parties interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. (6.) The submission of the trustee to answer all such enquiries relating to the application of the stocks, securities, or money transferred, deposited, or paid in, under the Act, as the Court may think proper to direct. 2. The party filing such affidavit on production of an 2. That the several orders of the 26th day of October, attested copy thereof, is to be at liberty to enter a side bar 1845, relating to the office of Taxing Master, the times and rule to lodge or invest the money, stock, or security speci hours of attendance thereat, the duties of the Taxing Mas-fied in such affidavit, in the Bank of Ireland, with the pri ter, his powers, and the course of proceeding in his office, shall in all respects apply to and govern the several Taxing Masters appointed and to be appointed under the said Act of the last session, and their respective offices, and the clerks therein. vity of the Accountant-General, to the account of the par ticular trust. 4. The trustee having made the payment, transfer, or deposit, is forthwith to give notice thereof to the several persons named in his affidavit, as interested in, or entitled to the fund. 3. The Accountant-General, on production of an office copy of the affidavit and rule, is to give the necessary directions for transfer, deposit, or payment, and to place the 3. That all Bills of Costs now standing by the said Gene-stock, securities, or money, to the account of the particular ral Orders of the 28th day of October, 1845, or by any trust; and such transfer, deposit, or payment is to be cerdecree or order, referred to the said John O'Dwyer, Esq. tified in the usual manner. as the Taxing Master of the court, and on which he has not certified the costs due, are hereby referred as well to the said John O'Dwyer as to the other Taxing Masters appointed and to be appointed under the said Act, who shall regulate among themselves the distribution thereof for taxation, so as to avoid any unnecessary delay to the solicitors and suitors of the court; and, to that end, each of said Masters shall be at liberty to adopt the whole, or such part as he shall think fit, of the proceedings which have already taken place in respect to the taxation of any of said bills; and the certificate of any other of the said Taxing Masters, of the sum due on such bills, shall be of the same force as that of the said John O'Dwyer, notwithstanding any reference of such costs to him by name. 4. That the said Taxing Masters shall arrange a plan for determining the future references of all costs under the decrees, or orders of the court, or under requisitions to each of them, in weekly rotation; such plan to be submitted to and approved of by the Lord Chancellor. 5. That when there shall have been any former taxation of costs in the same cause or matter, all references therein for the taxation of costs shall be made to the Taxing Master before whom such former taxation has taken place, either on a reference from the court, or upon the request of a Master in Ordinary; but any taxation had before the said John O'Dwyer, Esq. before this date, shall not be deemed a former taxation within this rule, so as necessarily to require that all future references for taxation in the same cause or matter should be made to him. 6. That the Taxing Masters shall be respectively assistant to each other; and that in the discharge of their duties, and for the better despatch of the business of their respective offices, any Taxing Master may tax, or assist in the taxation of a bill of costs which has been referred for taxation to any other Taxing Master, and in such case may certify sum due in respect thereof. MAZIERE BRADY, C. GENERAL ORDERS IN CHANCERY. Pursuant to the provisions of the 11th & 12th Vic. c. 68. "An Act for better securing Trust funds, and for the relief of Trustees." Dated the 9th day of October, 1848. 1. Any trustee desiring to pay money, or transfer stock or securities into the name of the Accountant-General of the court of Chancery, under the said Act, is to file an affidavit, entitled in the matter of the act and of the trust, and setting forth: (1.) His own name and address. (2.) The place where he is to be served with any petition, or any notice of any proceeding or order of the court relating to the trust fund. (3.) The amount of stock, securities, or money which he proposes to deposit, or to transfer, or to pay into court, to the credit of the trust. 5. Such persons, or any of them, or the trustee, may apply by petition, as occasion may require, respecting the investment, payment out, or distribution of the fund, or of the dividends or interest thereof. 6. The trustee is to be served with notice of any application made to the Court respecting the fund, or the dividends or interest thereof, by any party interested therein, or entitled thereto. 7. The parties interested in, or entitled to the fund, are to be served with notice of any application made to the Court by the trustee, respecting the fund in Court, or the interest or dividends thereof. 8. No petition is to be set down to he heard, until the petitioner has first named a place where he may be served with any petition, or notice of any proceeding or order of the Court, relating to the trust fund. 9. Petitions presented, and affidavits filed, and rules entered, under the said Act, are to be entitled in the matter of the said Act, (11th and 12th Victoria, c. 68.) and in the matter of the particular trust. MAZIERE BRADY, C. 4. Special Presentment Sessions to decide whether any such Works ought or ought not to be completed under the Provisions of this Act. If presentment Sessions decide that such Works ought to be com. pleted, County Surveyor to prepare Tenders, &c. 5. Special Presentment Sessions may make Presentments for completing Works to be raised by Instalments off Barony, &c. wherein Works are situated. Amount presented not to exeed a certain Amount. 6. Schedule of Works to be submitted to Lord Lieutenant for his sanction and approval, and the same not to be undertaken under this Act without his Consent. 7. Secretary of the Grand Jury to notify, by public advertisement his readiness to receive Tenders for the Execution of Works, and shall furnish Forms for the same. Contents of Tenders, &c. 8. At adjourned Sessions Tenders to be opened and Contract entered into with the Party making the lowest Proposal. If no Tender or Proposal be made, or approved of by Special Presentment Sessions, the Work may be given in charge to County Surveyor, who shall cause the same to be executed. 9. Form of security. 10. Secretary of the Grand Jury shall keep a Book with Particulars of Contracts; and shall prepare Schedules. 11. Money for Completion of Works to be raised by compulsory Payment. 12. Kilbride v. Executrix Madden. 13. Jeffreys v. Evans. Smith v. Lindsay. Baldwin v. Irvine. Bill of Exceptions. Lessee of Close v. Batt and others. Vaughan ». M'Carthy. Wardrop v. Jones & Griffith. Special Demurrers. M'Manus v. Delany & others. Bowerman v. Executrix Bunton. Healy and Fitzgerald v. Admr. Hely v. Mulhallen. County Treasurer may borrow Money on Security of Presentment. Advances may be paid to Contractor in certain Cases not exceeding Three Fourths of the Cost of Work. 14. County Surveyor when satisfied of the Completion of the Work may grant his Certificate of approval to the Contractor. 15. On production of such Certificates to the County Treasurer he shall give a Draft for the Amount thereof, 1 & 2 Vict. c. 53. 16. Secretary of Grand Jury in any Barony or Half Barony where special presentment Sessions have been held to convene a Special Presentment Sessions for the County for Purposes of this Act. How such Special Presentment Sessions for the County shall be composed. 17. 18. One Cess-payer for every Barony or Half Barony to be associated with Justices of the County at Special Presentment County Sessions. Proceedings at Special County Presentment Sessions. 19. Five per Cent Interest to be allowed on all Sums advanced by Treasurer or Bank under the Provisions of this Act. 20. Definition of " County" 21. Definition of " Terms." 22. Act may be amended, &c. Whereas an Act was passed in the 9 &10 Vict. to facili'tate the Employment of the Labouring Poor, in the dis'tressed Districts in Ireland: And whereas Presentment 'Sessions have been held for certain baronies, half bar'onies, counties of cities, and counties of towns in Ire• land, and presentments have been made thereat under the 'said recited act, and whereas the period for executing 'works under the said Act has expired, and several of the 'said works being unfinished, it is expedient that provision 'should be made, for the completion of the same:' Be it enacted, that any three or more justices of the peace, not being stipendiary magistrates, for any county in Ireland, may by notice under their hands to be posted on the places appointed for posting notices of applications to presentment sessions in the barony or half barony in which such works are proposed to be completed, convene a special meeting of the justices and cess-payers associated at the last special or presentment sessions held in such barony or half barony, under the 6 & 7 W. 4. c. 116. and such meeting shall be held at the place appointed for the holding of such sessions at the time specified in such notice not been sooner than seven days from the posting of such notice, and the secretary of the grand jury shall attend; and the justices and cess-payers, or so many of them as shall be present shall constitute a special presentment sessions for the purposes of this act: provided that before such meeting shall be convened the justices shall inquire from the county surveyor and determine the most convenient time time for holding such meeting, having regard to the report to be made by such county surveyor, under the provisions herein-after contained. 2. That all the provisions contained in the 6 & 7 W. 4.c. 116, relative to the selection of a chairman, and to his powers, duties and authorities at presentment sessions, and to the powers, duties, and anthorities of justices and cess-payers at presentment sessions, shall, extend to all sessions under this act, and to the proceedings thereat; and that the provisions contained in the said act relating to the declarations to be made by the justices and cess-payers who shall act at any presentment sessions, and to the powers, duties and authorities of the secretaries of grand juries, county surveyors, clerks of the crown, clerks of the peace, and all other officers shall as amended by the 7 W. 4. & 1 Vict. c. 2, extend to all proceedings under this act, as if the same were herein repeated and enacted, unless where other provisions are hereby substituted; provided that in any declaration to be made by any justice or cess-payer the title of this act shall be inserted together with the title of the 6 & 7 W. 4 c. 116. 3. That the county surveyor shall report to the present. ment sessions the nature and description of any public works for which presentments have been made at any extraordinary presentment sessions held for such barony or half barony, and the expense of which, or any part thereof, shall be chargeable thereon, and in respect to which advances have been made by her Majesty's Treasury under the 9 & 10 Vic. c. 107, and which works, or any part thereof, still remain unfinished; and such report shall be prepared by such county surveyor with all possible expedition after the passing of this act, and shall contain a description of the said works, and the townland, barony, or half barony wherein the same are situate, and shall specify the amount which has been authorized by Her Majesty's treasury to be applied to such works under the said last-mentioned act, and the amount unexpended, and the expense of completing such works and the utility thereof, and the barony or half barony by which the expense of completing the same should be defrayed. 4. That at the special sessions held for any barony or half barony under this act the justices and cess-payers associated at such sessions shall take such report into consideration, and decide by a majority of votes on the merits of the works specified and whether the same ought or ought not to be completed, and whether wholly or in part, or conditionally in the event of the expence thereof not exceeding a certain sum, and what modification thereof may be proper; and if such justices and cess-payers approve thereof they shall direct the county surveyor to prepare a form of ten der for the execution of the same, together with such specifications, maps &c. as may be necessary, expressing the nature and extent of such work, and in case the same shall be a public road, the quantity per perch and the description of the material proper in the execution of the same, and the term within which such work ought to be completed, and such other particulars as the said justices and cess-payers shall think fit, and such chairman shall endorse on such report the decision of the said justices and cess-payers, and sign his name thereto, and deliver such report, to the secretary of the grand jury, and such county surveyor shall deliver such forms of tender, specifications, &c. as soon as convenient to the secretary of the grand jury; and the said justices and cess-payers shall appoint the manner in which notice for the receipt of tenders and proposals for the execution of such works shall be given, and the period during which they shall be received, and shall adjourn such sessions until an early day, for the opening of such sealed tenders and proposals, not being later than thirty days from the day of adjournment. 5. That the justice or justices and cess-payers at any sessions held under this act are authorized to make presentments for the completion of such public works within the barony or half barony for which such sessions shall be held, to be raised if they shall think fit, by instalments, not exceeding twenty, as the said justice or justices and cesspayers shall direct, with interest at five per cent. to be levied off the baronies or half baronies in which such works shall be situate, and chargeable therewith: provided that the amount to be presented shall not exceed the residue of the amount authorized to be applied to the execution of such works by Her Majesty's treasury under the first-reci ted act. 6. That the secretary of the grand jury for each county wherein special sessions have been held under this act shall cause to be made out, as soon as convenient, and shall sign, a schedule specifying each work approved and presented at any such sessions, and the sum presented, and shall transmit the same to the Lord Lieutenant for his sanction; and it shall be lawful for the said Lord Lieutenant, to signify to the secretary of the grand jury, by a certificate under the hand of the chief or under secretary, approval or disapproval of such works or any part thereof; and no work or part thereof so disapproved of shall be executed under this act. 7. That the secretary of the grand jury shall, upon being furnished by the county surveyor with the specification or form of tender for the execution of any work and the maps, plans, &c belonging thereto, notify, by advertisement in such manner as the justices and cess-payers at such sessions shall direct his readiness to receive sealed tenders and proposals for the execution of any work during such period as shall have been appointed for the reception of the same, and the time to which such sessions has been adjourned for the opening of such tenders and proposals, and that forms thereof may be obtained at his office; and such secretary shall prepare a sufficient number of forms of tenders and proposals, and furnish to any person who shall demand the same a copy thereof, receiving therefor, the cost of preparing the same, not exceeding sixpence; and each of such sealed tenders and proposals shall contain a statement of the lowest sum for which the party is willing to contract for the performance of the work or works specified and described in such notification, with the name, description, and residence of the party so desirous to contract, and also the names, descriptions, and residences of two persons willing to be bound with him for the faithful performance of the said contract within the time and in the manner prescribed, in double the sum specified in such presentment; and all maps, plans, &c. relating to such work, shall be open to public inspection in the office of such secretary, without fee or reward. 8. That at the meeting of such adjourned sessions the secretary of the grand jury shall in court produce, duly numbered and arranged, and with the seals unbroken, all the tenders and proposals delivered to him, and shall open consecutively all those relating to the same work; and so soon as the lowest proposal for the performance of each work shall be ascertained the party making such proposal and his sureties, shall be called, and if the said party and his sureties shall appear, and shall satisfy the justices and cess-payers of their sufficiency and ability to make good the penalty for the non-performance of such contract, and that such proposal has not been made for any unfair or fraudulent purpose, and shall enter into security for the performance of such contract, conditioned in such penalty as aforesaid, such proposal shall be accepted, and the party making the same shall be entitled to execute the work to which such proposal may refer unless there appear reason for rejecting it; but if the party making such proposal and his securities shall not appear, or shall fail to satisfy the justices and cess-payers at sessions in any of the particulars aforesaid, or shall decline to enter into security, or if the sessions shall see cause to reject it, then the proposal of the party making default shall be deemed null and void, and the next proposal shall be ascertained and dealt with in the same manner, and so on until the said security shall be entered into, and the contract completed: provided that if no proposal shall be made in respect of any work as so approved by the Lord Lieutenant within the time limited or ifno proposal or tender shall be approved of by such ses (To be continued.) |