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⚫siderable difficulty in the collection of the public money, SMYTH AND DU BEDAT, STOCK AND SHARE

' and nine-pence in the pound has been found not sufficient ' remuneration for collecting same;' be it therefore enacted, that the Grand Jury at any assizes after the passing of this act, and before the end of 1849, may without application to presentment sessions, present a sum not exceeding one shilling in the pound, to be paid to any such high constable or collector.

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5. That any bond and warrant of attorney to confess judgment of any high constable or collector, and any judg ment entered up on same, shall be valid, whether given at A TREATISE ON THE LAW OF INTERPLEADER,

containing all the Reported Cases in this Country and in England; with an Appendix, containing the Act 9 & 10 Vic. c. 64, with Forms of Affidavits, Rules, Orders, and the Record on a Feigned Issue. By Jony BLACKHAM, Esq., Barrister-at-Law.

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the assizes before the Grand Jury by whom he shall have
been appointed, or before the justices of the peace at any
general quarter sessions, or special sessions, and whether
such high constable or collector shall have been appointed
by the Grand Jury at any assizes, or at any quarter sessions, By ALFRED M'FARLAND, Esq., Barrister.at. Law.
or adjournment, and shall have subsequently qualified and
given security at a subsequent quarter sessions, or adjourn-
ment, or at special sessions.

6. And whereas by the 6 and 7, W. 4. c. 116, every

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LAW OF DEBTOR AND CREDITOR IN IRELAND.

The new Act for the abolitition of arrest for sums under ten pounds and for the recovery of the possession of small tenements before Justices the professional and trading classes. of the peace, with a full commentary, Index, notes and forms, adapted for By WILLIAM GERNON Esq., Barrister-at-law. Dublin: EDWARD J. MILLIKEN. Law Bookseller and Publisher, 15, College.green.

person duly authorized to collect Grand Jury cess, in default of payment may prefer a complaint to any justice of 'the peace of the county in which such party may reside; 'who may summon such party, and direct payment to such collector, or issue his warrant for the levy of the sum due, by distress and sale of the goods of the party complained ' against. And whereas by the 1 & 2 Vict. c. 56. for the GUTTA PERCHA, from its perfectly Waterproof qual relief of the destitute poor in Ireland, every rate made under the anthority of the said act, may be sued for and re'covered by the same means as the Grand Jury cess; and 'whereas by the 6 & 7 Vict. c. 92., for the further amendment of said act, the collector may prefer a complaint to any Justice of the peace of the county in which any les- CORK AND DOUBLE SOLED FRENCH BOOTS.

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William Nottidge, Esq., Chairman.
Nicholas Charrington, Esq., Deputy-Chairman.
LIFE.

By the plan of the Union Society the profits are calculated upon the sum insured, and not upon the amount of premiums paid, thus giving a most important advantage to young and middle ages; and for advanced lives the Tables of the Union offer the immediate benefit of lower rates of Premium. All new assurances participate. The premiums are also much reduced on Insurances effected without profits. Detailed Prospectuses of the extended system of Life Insurances (in one case requiring payment of only two-thirds of the premium) may be had gratis. Loans granted on the policies of this office.

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Erish Jurist

No. 5.-VOL. I.

DECEMBER 2, 1848.

PRIC

SPer Annum, £1 10s. Single Number, 9d.

The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows:

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Several errors were assigned by each of the prisoners as appearing on the records of their respective convictions for high treason, at the late Special Commission for Clonmel, all of which were elaborately argued in the course of last week before the Court of Queen's Bench sitting in Banc. In this present article we shall confine our observations to a statement of the question involved in one only (apparently the most important) of the alleged errors, namely, the one conversant with what is commonly known as the "ten day point."

The question (stripped of all collateral considerations respecting the applicability of a plea to the state of facts in the case, or the form of the particular plea which raises the question,) is; whether the prisoners were entitled to be furnished with a copy of the indictment, a list of the witnesses for the crown, and of the names of the jurors ten days before the trial. The Crown asserts the negative, the prisoners the affirmative.

The question was raised in the following manner. When the prisoners were called upon in the Court below to plead guilty or not guilty, their counsel moved for a postponement of the trial on the ground that the indictment, the list of the witnesses for the crown, and of the jurors' names, had not been (as it was insisted they ought to have been) furnished ten days previously. The Crown successfully resisted this application, whereupon the prisoners put in a plea in suspension or a declinatory

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plea, which embodied the statement on which the previous motion to postpone the trial had been grounded. To this plea the Crown demurred, and judgment was given in its favour.

Before stating the substance of the enactments upon the construction of which the decision of the point at issue depends, it is necessary to premise that the indictment in each case contains six counts almost similarly worded, that the five first counts charge the prisoners with the treason of levying war against the Queen, and that the sixth count charges the treason to be a compassing of the Queen's death, and alleges, as one of the overt acts in support of such charge, a conspiracy to put the Queeu to death.

The statutes applicable to this branch of the case are three; first, the 36 Geo. 3, c. 7, ss. 1 & 5, (English); secondly, the 57 Geo. 3, c. 6, s. 1; thirdly, the 11 Vic. c. 12, ss. 1 & 2.

The first section of the 36th Geo. 3, c. 7, enacts, among other matters, that "if any person shall, during the life of his Majesty, the then king, and until the end of the next session of parliament after a demise of the crown, compass the death of the king, his heirs or successors, and such compassing shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed, every such person, upon conviction, shall be adjudged a traitor, and suffer death, and lose and forfeit as in cases of high treason." the fifth section provides, "that every person that shall be indicted for any offence, made or declared treason by this act, shall be entitled to the benefit of the act of 7th Wm. 3rd, chap. 3, and also of the act of the 7th of Anne, chap. 11."

And

Wm. 3rd. The 7th of Anne, chap. 11, sec. 11, enacts, No point in the argument turned upon the act of "that when any person is indicted for high treason, a list of the witnesses that shall be produced at the trial, for proving the said indictment, and of the jury, mentioning the names, profession, and place of abode of the said witnesses and jurors, be

also given, at the same time that the copy of the indictment is given to the party indicted, and that copies of the indictment, for all the offences aforesaid, with such lists shall be delivered to the party indicted ten days before the trial, and in the presence of two or more credible witnesses."

per.

Geo. 3, were, by the said last mentioned act ex-
tended to Ireland, and that it was expedient to
repeal all such of the provisions so made perpe-
tual, as did not relate to offences, against the
son of the sovereign, and to extend to Ireland, such
of the provisions of the said acts as are not thereby
repealed, enacts, "that from the passing of this
act, the provisions of the said act of the 36th Geo.
3, made perpetual by the act of the 57th of the
same reign, and all the provisions of the said last
mentioned act in relation thereto, save such of the
same respectively, as relate to the compassing or
imagining the death or destruction of the heirs and
successors of His said Majesty, King Geo. 3, and
the expressing, uttering, or declaring of such com-
passing or imaginings, shall be, and the same are
hereby repealed:" and the second section enacts,
"that such of the said recited provisions made
perpetual by the said act of the 57th of Geo. 3, as
are not thereby repealed, shall extend to, and be
in force, in that part of the united kingdom called
Ireland.”

Such being the enactment confessedly applicable to Ireland, the counsel for the crown contended, that only such part of the first section of the 36th Geo. 3, as we have previously stated in full, was by the 2nd section of the 11th Vic. extended to Ireland, and therefore, that the prisoners were not entitled to the benefits conferred by the fifth section of the 36th Geo. 3 upon the accused. On the other hand, the counsel for the prisoners contended that the said second section of the 11th Vic. extended to this country not only the first but also the fifth section of the 36th Geo. 3, that the said second section of the 11th Vic. extended

The first section of the 57th Geo. 3d. c. 6, after reciting the first section of the said 36th Geo. 3, and further reciting, that "it is necessary and expedient that such of the provisions of the said act, (viz. 36th Geo. 3), as would expire at the end of the next session of parliament, after the demise of the crown, should be further continued and made perpetual," enacts, "that all and every the herein before recited provisions which relate to the heirs and successors of His Majesty shall be perpetual." One important question which arose in the course of the argument was, to what extent the last stated enactment perpetuated the 36th Geo. 3. The counsel for the Crown insisted that the first section of that act, namely the section which made or declared what should be deemed treason within its provisions-was alone thereby perpetuated, and that the fifth section of that act, namely the one which conferred the privilege on the accused, previous to trial, -was unaffected, and they rested their view of the case upon the words in the 1st section of the 57th Geo. 3, "hereinbefore recited provisions." The counsel for the prisoners on the other hand contended, that the first section of the 57th Geo. 3 not only perpetuated the first, but also the fifth section of the 36th Geo. 3, and they rested their arguments, not only on the words of the first section of the 57th Geo. 3, which recited, that "it was expedient to perpetuate such of the provisions of the act of 36th Geo. 3, as would expire"such of the said recited provisions made perpetual at the end of the next session of parliament, after the demise of the crown," (under which description, both the first and fifth sections were included, and thereby as they contended, brought expressly within the words "hereinbefore recited provisions" used in the enacting part of the first section of the 57th Geo. 3,) but also they contended that even if the enacting part of the first section of the 57th Geo. 3, did not, in express terms, extend to the fifth section of the 36th Geo. 3, it did so by implication: for that in perpetuating the section, which made, or declared what should be treason, it also necessarily perpetuated the section which regulated the mode of trial of that treason, as an incident or accessary thereto.

The provisions of the several statues hitherto detailed were (as contended for by the crown, and but faintly denied by the prisoners' counsel,) at their passing, inapplicable to Ireland, and we now proceed to the consideration of the third statute mentioned above, namely, the 11th Vic. c. 12, commonly called the Crown and government security act, which, according to the argument for the prisoners, extended to Ireland those provisions contained in the first and fifth sections of the 36th Geo. 3, which we have previously set out in full. The first section of the 11th Vic. after reciting the first section of the said act of the 36th Geo. 3, and the first section of the said act of the 57th Geo. 3, and that doubts were entertained, whether the provisions made perpetual by the said act of the 57th

by the 57th Geo. 3;" that the provisions recited were "such of the provisions of the 36th Geo. 3, made perpetual by the 57th Geo. 3," as related to the compassing the Queen's death, that upon reference to the 57th Geo. 3, it appears that "such of the provisions of the 36th Geo. 3, were thereby made perpetual, as would expire after the first session of parliament following a demise of the crown;" and, that upon reference to the 36th Geo. 3, it appears that the provisions which would so expire were the first section declaratory of treason, and the fifth section regulating the mode of trial for the treason so declared.

The foregoing is a brief epitome of the arguments upon one of the many points raised and discussed. It refers indeed to only one view of the statutes we have above quoted. A different view from that presented was taken by some of the counsel on both sides, grounded upon the allegation that all but the first section of the 57th Geo. 3 extended to this country. We shall on a future occasion state the arguments upon the form of the plea-upon the question whether the subject matter of the plea was at all pleadable-and upon the effect of the verdict of acquittal upon the sixth count, as well as on some of the other grounds of error relied on.

WE give elsewhere the only two decisions yet made on the act for the sale of incumbered estates. We

may deduce from them first, that all parties shall have notice; secondly, that no technical objection shall, if possible, be allowed to impede the working of the measure. There have as yet been but few petitions presented, and they are not likely to be numerous until the General Orders have been promulgated, the undue acceleration of which is not desirable, as on them will depend the acceptation which the public and the professions will give to the statute in its complete form. There will be some difficulty-the necessary attendant of every measure which effects important changes in dealing with those cases in which foreclosure suits are already in existence. We have little doubt that existing rights will be dealt with justly, and that they will not be displaced by giving to the statute a harsh retrospective operation.

The 3 & 4 Vic. c. 105, s. 25, enacted, that if any judgment creditor should have obtained a charge, or be entitled to the benefit of any security whatsoever under the powers of the act, and should afterwards, and before the property so charged or secured should have been converted into money or realized, cause the person of the judgment debtor to be taken or charged in execution upon such judgment, then, and in such case, such judgment creditor should be deemed to have relinquished all right and title to the benefit of such charge or security, and should forfeit the same accordingly.

This was legislating in the proper spirit, the act gave great facilities to judgment creditors to realize their demands out of the debtor's property, but imposed these reasonable terms, that if creditors adopted the aids given by the statute, they should suspend the enforcement of their rights against the person, until they abandoned the statutable remedy. The operation of the measure is, however, limited to those cases in which creditors adopt the benefit of its provisions, and it is still in their power to arrest a defendant, and, if he remain in prison, subsequently issue execution against his goods, and only in the event of satisfaction being obtained by their sale, can he apply for his discharge. By the common law of England an arrest of the person was of itself a discharge of the debt, and in Ireland the common law was the same, but the 35 of Geo. 3, c. 30, Irish, conferred upon the creditor the power of first arresting the debtor, and then seizing his goods. In our judgment the process should be statutably reversed, and the act we have alluded to repealed.

THE legislature have ventured on the bold experiment of extending the provisions of the English Small Debts Act, with some improvement in the preparation of the measure, to this country. An abridgment of the statute will be found elsewhere in our columns of this week. The period for its introduction was a trying one; individual and national probity are never very prominent when individual and national distress are very severe; and neither amongst the upper nor lower classes of our countrymen have honesty and prudence been striking characteristics. We were always predisposed to the contrary, and our national propensities do not lie in abeyance in times of wide-spread calamity. These causes produce effects; tradesmen trust only when their remedy is stringent, and in periods of distress as the chances of payment are less their confidence becomes more circumscribed. The marked distinction of doing away with arrest of the person on mesne process-that is, before the debt is proved to be due, and doing it away after it has been established by due course of law-is obvious. To the justice of the former we subscribe; the expediency of the latter has been much debated, more especially when considered with reference to the upper classes. Rank, position, liberty, are not too heavy forfeits for extravagance and dishonesty. Payment of demands justly due cannot be enforced with too strong a sanction. Goods, lands, person, have hitherto been the creditor's pledge for payment; the last, as the most severe, should be the most tardily resorted to, and the scope of legislation for many years past has been to give facilities to recover debts from the two former, and to make the creditor only avail himself of the last as his ultimate resort. The debtor, down to the year 1840, was little favoured in this country, for here executions against both goods and person could-we are sorry to say canThe exceptions being, where they have been incurred fraudulently, or without probable means be issued in any order the debtor pleases. Brien of paying them, or where the liabilities are the v. Brien, (1 Hud. & Bro. 300); Barton v. Sey-result of verdicts against defendants in actions for mour, (ib. 304). First, an execution against the malicious prosecution, deceit, libel, slander, criminal goods, then the person, and then again the goods, conversation, seduction, or breach of promise of the creditor lying all the time in gaol.

The Act to Amend the Law of Imprisonment for Debt, with Commentary, Notes, Forms, and Index. By William Gernon, Esq., Barrister-at-Law. Dublin, Milliken,

But whatever may be the policy of abolishing arrest of the person in all cases, unquestionably the experiment may be most safely tested in those where the amount of the debt is small, and the debtor in an humble class of life. The liabilities of the working classes are more generally the result of necessity than of extravagance, and arrest, as a means of procuring payment, is generally inefficacious. Cui bono to the creditor the transfer of a semi-starved pauper from a cabin to a gaol, where he will be maintained at the public expense, whilst his wife and children are thrown on the union? He is deprived of the only capital he possesses——his labour-and his creditor gains nothing. The poor have few immunities, and we grudge them no boon which humane legislation can confer; in the present instance its value will be diminished by the restriction imposed upon credit.

Having said so much on the principle of the act, let us examine what it proposes to effect.

To abolish arrest of the person in all cases for debts under ten pounds.

marriage.

The first section exempts defendants from arrest on judgments, decrees, or orders of the superior courts of law, or of any inferior courts when the sum, exclusive of the costs, shall not exceed ten

pounds, and exempts from arrest the body of any plaintiff, defendant, or other person, in any action or suit founded on any judgment, decree, or order, for the recovery of costs only, when such costs shall not exceed ten pounds.

In the English act, 7 & 8 Vic. c. 96, s. 57, the case of a plaintiff was not expressly provided for, the words being :-"no person shall be taken or charged in execution upon any judgment obtained in any action for the recovery of any debt wherein the sum recovered shall not exceed the sum of £20, exclusive of the costs recovered by such judgment." And, in the event of his being non-suited, or otherwise defeated, it has been made a question whether he was protected by the act. See Newton v. Ld. Albert Conyngham, (12 Jur. 356). Mr. Gernon, who loses no opportunity of pointing out the merits of the statute, has not sufficiently adverted to this distinction. It is observable that in all our law reforms where acts limited to England have pioneered the way, we have gained by the delay; having had the experience and the pattern to guide us. We do not, however, affirm that the benefit is very manifest of shielding from arrest a litigious plaintiff who fails either in point of law or merits. The branch of the section which saves defendants from arrest will be a very good guide to juries as to the amount of damages in what are called "dirty actions," pauper plaintiffs suing in actions of trespass, or trespass on the case. Juries have it in their power to deprive such litigants of one means of recovering their damages, by limiting the verdict to £10.

Whilst the act shields the debtor in the first instance, it does not profess to do so altogether. If his goods do not realize sufficient to pay the debt, he can be summoned before the assistantbarrister of the district to shew cause why he should not be arrested; and, if it shall appear that the defendant, or any one in trust for him, had property which ought to be administered under the insolvent acts, or that the defendant is of sufficient ability to pay the debt, the assistant-barrister is empowered to have him arrested, or, in the case of fraud, or incurring the debt under false pretences, or without having had a reasonable expectation of being able to pay it, or, in case of fraudulent transfer, he may be committed for three months to the common gaol, or house of correction-there ought to have been the addenda, with or without hard labour—all remedies against the property being saved. These are excellent provisions, and are a great protection to the creditor.

The 4th and 5th sections apply to cases where the goods have been found insufficient after decree. The 6th gives the barrister jurisdiction, in the first instance, to commit the defendant, provided the plaintiff shall have annexed to, or indorsed on the civil bill process, a notice of his intention to proceed under the act.

Mr. Gernon remarks that "it will probably be a question of some nicety for the consideration of plaintiffs to determine in what cases they will resort to the notice or indorsement prescribed by this section," and having marked in the margin, p. 33, "Safe rule for proceeding submitted," he observes with much náivetè, "It will therefore be a

matter entirely for the discretion of a plaintiff, or his attorney, to determine whether he will, in the first instance, run the risk of failure in proving fraud, and subjecting himself to the payment of costs; but perhaps the safest rule to guide a party will be, that where there exists a reasonable suspicion of fraud, &c., and a reasonable expectation of being able to prove its existence at the hearing; in such a case it will be prudent to resort to the civil bill with notice or indorsement under this section." The promise in the margin of a “safe rule," and the non-fulfilment in the text, are strikingly opposed.

Our author, we are sure, will excuse us, if we mingle a little playfulness with the dry matter which our pages must generally contain.

There is one part of the statute which we con sider highly objectionable. The inquiry as to fraud, improvidence, and fraudulent transfer of the debtor's property-questions of great nicety—is left entirely to the Assistant barrister, from whom there is to be no appeal! Whilst we do not question the integrity, we are constrained to demur to the universal competency of these local judges, considering not only the fallibility of human judgment, but also that they owe their elevation to political connection, independently of, and not unfrequently in contradistinction to, professional capacity. We cannot have confidence in the unerring correctness of their decisions, and yet the liberty of the subject is involved in them. Our whole judicial system is one of salutary checks, grade over grade, judge over judge; on general, very obvious, and wellunderstood constitutional grounds, we protest against conferring more irresponsible power than is requisite for the effective administration of justice, and lament the increasing tendency of modern legislation to vest uncontrolled power in a single person whose decision is irreversible, and in abrogation of the ancient system of trial by jury.

The 7th section gives power to any court, in cases to which the act relates, to arrest a defendant about to leave Ireland, either on the hearing of the case in the first instance, or after decree upon ex parte application. In the latter instance a defendant may apply to be discharged on shewing cause.

Mr. Gernon discusses with much force the difficulties that will arise under this section. Can the Assistant-barrister adjudicate otherwise than in open court? Before whom can a defendant, who has been arrested after decree, shew cause for his discharge, where the barrister has concluded his sessions, and left his jurisdiction? These are defects that require amendment. The powers conferred upon the Assistant-barrister to take affidavits in any part of Ireland-which applies to all cases-and to compel the attendance of witnesses not resident within his jurisdiction will be found very useful; we regret that the latter power has been limited to cases falling within the provisions of the act under consideration.

The power of summarily evicting tenants residing in towns, who hold for not more than a month, and at a rent not exceeding £1 per month, is a boon to the landlords of such very undesirable tenauts.

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