« EelmineJätka »
7. Provision where occupation of premises may be shall be 'payable by two instalments in each year, one changed.
at each successive Assizes, or in the case of the county of 8. Act may be amended, $c.
• Dublin at the successive periods limited for the payment of
• the respective moieties of grand jury cess for such county, • Whereas an act was passed in the 9 & 10 Vict. c. 85,
• until twenty instalments shall have been paid, the first of and whereas another act was passed in the 9 & 10 Vict. c.
• the same being payable at the Summer Assizes, and in . 108, and whereas an act was passed in the 10 & 11 Vict. c.
. the case of the county of Dublin at the period limited • 106, and whereas under the authority of an act of the 7 W.
for the payment of the first moiety of grand jury cess after * 4. & 1 Vict. c. 21, and of an act passed in the said session of parliament holden in the 9 & 10 Vict. c. 1, and also of
" the presenting term of the year 1848, and provided that * another act passed in the 9 & 10 Vict. c. 107, and of an
the whole sum may be paid off in one payment in any case
where the grand jury shall think fit to make a presentment . act of the 10 & 11 Vict. c. 10, sundry advances were made by the commissioners of public works in Ireland for the commissioners shall issue certificates to the secretaries of
'for that purpose ; and it is further provided, that the said purpose of affording relief by means of employment on public Works: and whereas, under the conditions on which
• the several grand juries of the total sum so to be repaid,
• and of the annuity by which the repayments are to be made, these advances where made, and under the provisions of an
. and that each secretary shall lay such certificate before the act of the 10 & 11 Vict. c. 87, one moiety of the advances
grand jury of the county, county of a city, or county of a * made under the two last-recited acts, with interest, was
town to which the same shall relate, at the Spring Assizes, made re-payable by half-yearly instalments: and whereas
and in the case of the county of Dublin at the presenting by various presentments made at the Spring and Summer • Assizes 1847, and at the Spring or Summer Assizes 1848,
term of 1848, each grand jury, without any application to in different counties in Ireland, several sums are payable and interest specified in such certificate: And whereas the
presentment sessions, may present the total sum of principal * into the Exchequer in respect of the advances herein-before
said commissioners of public works in Ireland have, previ* mentioned, and whereas certain of the works commenced
"ous to or at the Spring or Summer Assizes, and in the case * under the two lastly above-recited acts of the ninth and tenth
of the county of Dublin to the presenting term of 1848, years of Her Majesty are unfinished : and whereas it is ex
certified to the secretaries of the grand juries of the several pedient to complete the same, and also to carry on works counties, counties of cities, and counties of towns, in Ireof river drainage under the act passed 9 & 10 Vict. c. 4, land, the total compound sum to be paid in each barony, and the other acts recited therein, and also of carrying on half barony, electoral division, part of electoral division, * other works in Ireland :' be it enacted, that the commis
district, county of a city and county of a town respetively, sioners of Her Majesty's Treasury, may cause to be issued
and the instalment of annuity which is to be paid for that from time to time as they may find necessary during the three years next ensuing the 5th of April, 1848, out of the con- twenty such instalments are paid : and whereas it may be
purpose at the next and every succeeding Assizes until solidated fund, any sum or sums of money not exceeding expedient to postpone the payment of the said annuity, and the sum of £945,000, to be placed to the credit of the com; by reason of the unequal proportions of the annual payments missioners for the reduction of the national debt : provided
chargeable on the several counties and divisions of counties that the total sum issued from the consolidated fund under
• it may be expedient that the re-payments should be made this act shall not exceed the sum paid into the Exchequer in some cases by annuities of longer duration, and in others Vict. c. 107, the said act of the same years" to facilitate the commissioners of Her Majesty's treasury, may direct the the employment of the labouring poor for a limited period in treasurer of any county, or county of a city or county of a the distressed districts in Ireland," and the said act of the town, in Ireland, in which the snm or sums certified by the last session of parliament " to facilitate the recovery of pub- said commissioners of public works shall have been previously lic monies advanced for the relief of distress in Ireland by the presented, or in case of the county of Dublin the finance employment of the labouring poor." 2. That all the monies placed to the credit of the commis. the first instalment of each such annuity until
committee of the same county, to postpone the payment of sioners for the reduction of the national debt shall be held
Assizes of 1849, and in the case of the county of Dublin until subject to the disposal of the commissioners of public works
the presenting term in the year 1819, and thereupon all the in Ireland, for the purposes of any loans which the said com- provisions of the said last-recited act in relation to the annuity missioners may think fit to make for the completion of pub.
or annuities in such respective county, county of a city or lic works commenced under the 9 & 10 Vict. cc. 1, 107,
county of a town, shall be construed and take effect as if the and for the extension and promotion of drainage, and for
first instalment thereof had been made payable at such Spring any other works in respect of which, under any of the acts Assizes and presenting term. herein-before mentioned, or any other acts, loans are autho
5. That the commissioners of Her Majesty's treasury, rized to be made by the said commissioners of public works
upon application by the grand jury of any county, or county in Ireland out of the funds provided by parliament for that of a city, or county of a town, in Ireland, or by the justices purpose, and for the purposes of any other loans which the
assembled at a Special Sessions to be summoned as hereine said commissioners of public works in Ireland may, by any after directed, in which the sum or sums so certified by the act or acts hereafter to be be passed, be authorized to make
said commissioners of public works shall bave been presented, for the execution of works of public utility in Ireland.
to authorize the conversion of the annuity charged on such 3. That all the powers, of what nature or kind soever, contained in the firstly herein-recited act of the last session such annuity chargable on any barony, half barony, electoral die
county, county of a city or county of a town, or the portion of of parliament, and the acts recited therein, and in any act vision, or district,
under the certificate and presentment in this authorizing loans to be made for the extension and promotion behalf, or into an annuity of a shorter or longer duration in no of drainage and other works of utility in Ireland, shall extend
case exceeding twenty years, provided the value at the time; to this act, and to the loans hereby authorized to be made.
of the conversion shall be equal to the value at the same 4.' And whereas by the said act of the 10 & 11 Vict. c.
time of the annuity or portion of annuity charged or charge106, it is provided, that the sums chargeable under the
able as aforesaid, or such instalments thereof as aforesaid, or said act on the several baronies, &c., with interest up to
portion thereof, such respective values to be calculated on the first day of March, 1818, shall be ascertained by the
the basis on which such an annuity of twelve pounds for ten * commissioners of public works in Ireland, and for every years as aforesaid was taken as equal to a sum of one hun* £100, there shall be paid an annuity of £12, and so
dred pounds; and all the powers, authorities, or provisions on in proportion for any lesser sum during the period
contained in the last-recited act which relate to the presentof ten years; and such annuity shall be charged upon ment, raising, levying, and paying of the annuities to be the barony, half barony, electoral division, part of an
presented by the grand juries under that act shall extend to electoral division, district, county of a city, county of the annuities sanctioned under this act : provided that with 'a town in respect of which the said commissioners respect to the limitation of the total sum to be issued under shall certify the same to be due; and such au nuity this act, all postponed payments, and payments of substi
tuted annuities under the postponement and conversions
CHANCERY. hereby authorized, shall be deemed payments under the pro
Plaintiff, PURSUANT to the Decree made in visions of the last-recited act.
this Cause, bearing date the 22d day of June.
1818, I hereby require all Creditors of Richard Bea. 6. That in case such application shall not have been made John Benison, and
another, by the grand jury of any county, &c. at the Summer Assizes
ison, deceased, in the pleadings in this cause tamed. and all persons having
charges and incumbrantes
Defendants. of this present year, and it may be expedient that such ap- and premises in Ravensdale, heretofore used as a Bleach Mill, called the
affecting the lands of Dulargy, and the tenement plication should be made previous to any levy, the clerk of little Engine Concern, situate in the Lordship of Ballymascaulan, Barany the peace of any such county, county of a city, or county one undivided fourth part of the lands of Bally worken and Drumnakeli of a town, and he is hereby required within two days after situate in the Barony of O'Neiland East, and County Armagh, being the the receipt of a written requisition of the treasurer of such lands and premises in the pleadings in this cause mentioned, to come in county for that purpose, may call a Special Sessions of the or before the 16th day of April, 1849, and proceed to prove the same Peace to be held on or previous to the first day of October otherwise they will be precluded from the benefit of the said Decree,
Dated this 20th day of February, 1819. of this present year, to be held at the county or assize town
EDWARD LITTON, (giving six days notice thereof to the justices of such county) Charles Gaussen, & Co., Plaintiff's Solicitors, and the justices then and there assembled may make such ap.
72, Eccles-street, Dublin, plication as aforesaid.
IN CHANCERY. 7. And whereas by the said recited act of the last session Thomas Kemmis, Esq. of Parliament, intituled, An Act to facilitate the Recovery
PURSUANT to the Decree of
Her Majesty's High Court of of Public Monies advanced for the Relief of Distress in Sir Richard Nagle, Bart. Chancery, made in this cause, bearing
, date the 17th day of April, 1817, I wil • Ireland by the employment of the labouring Poor, it is George Pilkington,
on MONDAY, the 23rd day of APRIL amongst other things enacted, that any such sum of money John Ennis,
next, at the hour of One o'clock in the • to be from time to time raised and levied off any barony,
Afternoon, at my Chambers, on the
Inns Quay, in the City of Dublin, SET half barony, electoral division, part of an electoral division, UP and SELL to the highest and best bidder, all that and those the • district, county of city or county of a town, as in the said LANDS commonly called the DONORE ESTATE, in the counts of . act provided, shall be charged upon, and levied upon, the otherwise Donore, Coolfin, Ballinlabane, Ballinlahave, otherwise Ballin. • occupiers of and other persons rateable in respect of lands lavin, Hospitalstown, skehane, Garry-cloone, Thenlemore and also al • and hereditaments within such barony, half barony, elec- Tolls of the Fairs and patterns of Donore and also that part of the Landa *toral division, part of an electoral division, district, county of Ballinlahave, called the Red House Farm and also the Lands of of a city or county of a town respectively, and rated under Spittlestown and its sub.denominations, also the Town and Lands of Balls the then last preceding rate or rates made, under the pro. Capperakirk, Ballynegall, and part of Ballintubber, Cloghlah, and Brack: • visions of an act passed in the 1 & 2 Vict. and the several neherla, otherwise Bracknehowla ; and also the Town and Lands of Agbe.
acts amending the same, and shall be payable by the res- Streamstown, Killinagh, Ardvara, Garthy, and the House and Ofice . pective rate.payers who under the said last preceding rate Jamestown--all situate in the County of Westmeath, or a competent part
thereof, for the purposes in said Decree mentioned. or rates shall have paid or contributed or been liable to pay or contribute rate in respect of property in such barony,
Dated this 27th day of February, 1849.
EDWARD LITTON, . half barony, electoral division, part of an electoral division, For Rentals, and further particulars, apply to Mr. RICHARD R. • district, county of a city or county of a town ; and any such TIGHE, the plaintiff's Solicitor, No. 20, Middle Gardiner Street. * sum of money shall be applotted, assessed, and levied by • the respective high constable or collector of grand jury cess NEW BOOKS, PUBLISHED THIS SEASON : . for or in such barony, half barony, or place as aforesaid as THE NATURAL HISTORY
OF IRELAND. By Wil
. . a poundage assessment equally upon the net annual value liam Thompson, Esq., Pres. Nat. Hist. and Phil. Soc. Belfast, Sra. • of the several lands and hereditaments within such barony, vol. 1. Birds, 131 pp., 166. half barony, electoral division, part of an electoral division,
2. EPISODES of INSECT LIFE, Crown. 8vo. 36 engravings, 16
coloured and bound in silk, 21s. • district, or county of a city or county of a town respec
3. THE POETRY OF SCIENCE, or STUDIES OF THE PHYSI. tively, rated as aforesaid, as such net annual value shall CÀL IENOMENA OF NATURE By Robert Hunt. 8vo. 487 pp.
have been stated in such last preceding rate or valuation as . aforesaid :' and be it enacted, that where any rate-payer or
London : Reeve, Benham and Reeve. Dublin : EDWARD J. MIL rate-payers shall have ceased to occupy the rateable property,
LIKEN, 15, College-green. all and every sum and sums of money to be so raised and levied EGAL AND HISTORICAL DEBATING SOCIETY. under the said provision of the said act, and all and every
ESTABLISHED 1845. sum and sums of money which shall be raised and levied un A Meeting of the Members of this Society will be held in their Roces, der or in consequence of the postponement of payment and No.45
, MOLES WORTH STREET, on FRIDAY EVENING, the bek conversions of annuities hereby authorized, or any of them, April. Chair to be taken at Eight o'clock precisely.
Barristers, Law Students, and Graduates of the Universities of Dublin, shall be paid by the person or persons in the actual occupa - Oxford, and Cambridge, are eligible for admission. tion of the lands and hereditaments on which such sum or Members who have changed their residences, or who have friends to sums respectively shall be assessed at the time of the assess propose, are requested to communicate with the Secretary, - ment thereof, and in the default of any such person or per
JAMES F. WRIGHT, Esq. 11, Lower Ormond Quay, sons, from the person or persons in the actual occupation of the same lands or hereditaments from whom such sum or sums shall be demanded, subject to such provisions as to
JAMES O'DRIS COLL, deduction from rent as in the said act of the first and second
PROFESSED TROWSERS MAKER, years of the reign of Her present Majesty contained, so far
9, ANGLESEA-STREET. as the same shall be applicable.
8. That this act may be amended or repealed by any act to the creditor, with the Pablisher, E. J. MILLIKEN, 15, COLLEGE to be passed in this present session of parliament.
GREEN. Correspondents will please give the Name and Address, as the (To be continued.)
columns of the paper cannot be occupied with answers to Anonyment Communications
nor will the Editor be accountable for the return of
Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL TH
HE DUBLIN UNIVERSITY MAGAZINE for LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery MARCH, 1819. Contents :
in Dublin, or its being forwarded to the Country, by Post, on the day of
publication. Dennis' Etruria.-The Massacre of Saint Bartholomew.-Warran, or the Oracular Afflatus of the Hindoos.Our Portrait Gallery, No. LI- James Terms or SUBSCRIPTION-(payable in advance): Whiteside, Esq., Q.C. With an Etching.–The Poor-laws, Potato Dis. ease, and Free Prade.-The Seamen of the Cyclades; a Tale of Modern
Yearly, 30s. Half-yearly, 178. Greece.- A few plain words to the people of England respecting the pre. sent state of National Education in Ireland. The Closing Years of Dean Swift's Life. With illustration. --Ceylon and the Cingalese.-My Uncle Printed by THOMAS ISA AC WHITE, at his Printing Office, Na. 46 the Curate. -The "Times," the Poor-law, and the Poor.law Committee, FLEET.STREET, in the Parish of St Andrew, and published at 15
Dublin : JAMES MCOLASHAN, 21, D'Olier-street. Wm. S. Orr & MILLIKEN, residing at the same place, all being in the County of the Co., 147, Strand, London. Sold by all Booksellers,
City of Dublin. Saturday, March 3, 1840
No, 19.-Vol. I.
Per Annum, £1 10
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 :
ROBERT LONG, Esq., Court of Chancery, inand
Court of Exchequer SJou BLACKHAM, Esq., and cluding Bankruptcy Joas Pitt KENNEDY, Esq., Bar
A. HICKEY, Esq., Barristers-at.
Law. Appeals...... risters-at-Law.
Queen's Bench, includ- Florence M'CARTHY, Esq., and
WILLIAM John DUNDAS, Esq., gistry Appeals....... Barristers-at-Law.
Exchequer of Pleas, in- ( Chas. H. Hempuill, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court WILLIAM HICKSON, Esq., Barand
and Registry Appeals. Equity Exchequer .......
WILLIAM Hickson, Esq, Bar-
ROBERT GRIFFIN, Esq., Barris
DUBLIN, MARCH 10, 1849.
scape chequered with luxuriant crops of potatoes and corn, and the green hills covered with cattle,
might feel surprised how such poverty could exist From the Shannon westward to the Atlantic lie in the immediate neighbourhood of such apparent the five counties comprising the province of wealth—how it was that the labourer was deemed Connaught – Galway, Leitrim, Mayo, Roscommon, apparently unworthy of his hire; and he would be and Sligo, blessed with as fertile a soil, on tempted to exclaim, with Virgil, the average, as perhaps any district of equal “Sic vos non vobis, fertis aratra boves !" size in the United Kingdom, and occupied by Whence arose this state of things ? Whence a laborious and frugal population. Previously arose this apparent want of affinity between the to the blight of the potato in 1845, and the labouring population and prosperity? The pracfollowing years, this province yielded a rental tice of leasing large tracts of land to middlemen, of nearly one and a-half million sterling annually; j aggravated very much the evils which were probably it is now steeped in the most wretched destitution found pre-existing. The rapid increase of populaand poverty, and, far from being able to yield this tion, without any corresponding increase of employrental
, is now scarcely able even to support the ment, by which labour might be absorbed and population existing on its surface.
labourers supported, made the possession of small However, though this extremity of misery is, no farins necessary for the existence of the populadoubt, attributable to the failure of that food on tion. The competition for these small holdings wbich too exclusive reliance was placed, it must carried their value in the market to an extravagant not be forgotten that the distress and degradation height; and, to enable them to hold possession of of this province is not of recent growth ; and its them, the occupiers were obliged to be contented origin must be sought for in sources which were with the meanest kind of food, and the coarsest in existence, while the potato was in full and kind of clothing. Middlemen-and proprietors folluxuriant health.
lowing their example_found it more profitable to From a very early period, the miserable state of stock their lands with people than with cattle; the Connaught had grown into a proverb. In our latter required to be well fed, well housed, and conown recollection of it, even in prosperous times, stantly attended to; the former required and reit contrasted very unfavourably with other, and ceived no attention or care, and were found proless fertile, parts of Ireland. Its naked and un- fitable directly in proportion to the degree of misery sheltered plains, covered with a net-work of rude in which they could exist. single stone-walls, dividing the country into irre To prevent infinitesimal subdivision of land, gular patches, miscalled gardens—its unsightly several acts against sub-letting were passed, which, hovels frequently mere holes cut into the ground however, renained—as far as regarded the greater or bog-covered with what are called "scraws,” part of the province-a dead letter on the statuteexhibiting whole families living in darkness, squalor, book. These enactments were an effort to remove and smoke—its uneducated and uncared-for popu- the symptoms without touching on the source of lation—its dirty and stunted towns, whose chief the disease. In a fertile and but half cultivated ornament consisted of a barrack and a gaol, district, when the population was not half what it attracted the attention and offended the eye of a. is now, there should have been little difficulty in stranger, who, at the same time, observing the land finding employment for the labouring poor. How
ever, unfortunately at that time, the state of the landlord a right to the ultimate property in this law of landlord and tenant acted as an effectual house or improvement, and, on the other band, we bar to outlay by middlemen, who were only anxious do not know on what principle of equity a man is to make what money they could of their lands to be deprived of property whose very existence is during their leases, and leave them at their expira- the result of his own outlay and industry, merely tion of as little value as possible.
because the property of the soil is in another Under that law, all buildings and such perma person. Landlords should be content with receiving nent improvements in a farm, became ultimately the full value of their lands, aud they should not the property of the landlord. In most parts of calculate on increasing their rentals by obtaining the province of Connaught, farms possessed no sort possession of property neither theirs, nor created of farming accommodation; farm house and offices by 'them. As to being improved out of their there are none; everything is required, and land- properties, it amounts to this
, that tenants might lords have not had the means to—at least they did create more property, that is, make more improvenot provide—the necessary accommodations, and ments on their farms than landlords would be a farmer undertaking to cultivate land himself willing to purchase, and, admitting that this might should have provided all these at his own ex- take place however it might prevent a landlord pense. These expenses were too considerable increasing his rental—it certainly would greatly to be incurred on the prospect of being repaid by augment his security for the rent at which he the enjoyment of the premises during the con- originally let the land, so that, far from improving tinuance of a short lease, so that middlemen were, to a landlord out of his property, it would secure bim a certain extent, driven to adopt the course of letting in the receipt of his present income, and, on the out their land to the peasantry in small portions supposition that he will not do anything to Thus, these two sources of evil proceeded, re-act- increase it himself, we do not think bim entitled ing the one upon the other; the state of the law to more. preventing middlemen from making improvements, As to leaving arrangements as to outlay and and thus giving employment. And this very want compensation to private agreement, we would of employment rendering small holdings the more suggest that this is inapplicable in the case of
necessary for the labouring poor, their rents higher, existing leases, that there are large classes of pro· and, in consequence, the inducement greater to prietors who are not in a position to make arrangelandlords and middlemen to adopt this system in ments of this kind, which would amount to charging the management of their lands.
the inheritance; and lastly, that the experiment has And the law is not different now from what it been tried for several centuries, and having prowas then; still the landlord becomes entitled, at the duced no beneficial results, it might be well nos at expiration of the lease, to the benefit of all the length to try the effect of another systein. And, improvements made by the tenant during its con- as to the legislature doing injury by its interference, tinuance; still the wide fields of Connaught are we are sorry to say there is very little cause to naked, destitute of farm houses, of farm offices, apprehend any such consequence, as the state of still—in despite of the failure of the potato-Connaught is at present as bad as it can be, which farmed on the old system of letting them out to a is an argument against the continuance of a cottier peasantry. Is it reasonable to suppose that system under whose operation this result has been while the same causes continue to operate, results arrived at. of a different character will follow ? We are con- An enactment providing that every person should fident that similar results will be produced, as have secured to him the enjoyment of the wealth long as this injustice to improving tenants is con- which his industry called into existence, could tinued, and that an alteration of the law, by which never be considered an inequitable one. Under a tenant will be secured the enjoyment of property the protection of an enactment founded on this which he has himself created, will necessarily pre- principle, the occupiers of land would feel that by cede any improvement either in the appearance, or their exertions they were realizing property for the surface of the country, or in the condition of its themselves and their families, and not for their inhabitants.
landlords; their farms would improve in appearWe know it will be objected, that any enactment ance and in value, and they would limit the of this kind would be such an interference with amount of employment given, only when they found the rights of property as could not be tolerated; it unproductive. that if any such principle were admitted, landlords might be improved out of their properties; that all arrangements with respect to outlay and compen. THERE have been some very important decisions sation should be left to the parties themselves, and recently made in this country as to the exemption that in the end all interference by the legislature from, or operation of, the statute of limitations, would be found to do more harm than good.
3 & 4 W. 4, c. 27. We allude particularly to the As to interference with the right of property, cases of Hunt v. Bateman, 10 I. E. R. 360); we apprehend the present rule of law interferes das v. Blake, ante, p. 121; and Bennett v. Ber• more with the very right of property than the nard, ante, p. 145. alteration which we suggest.
We do not un
The two former arose on the effect of a trust in derstand how the fact of a house, or other per
a will, and the latter on the pendency of a suit, as manent improvement, having been erected on land preventing the bar of the statute. at the cost of another person, necessarily gives the Immediately after the passing of the act, courts
of Equity appear to have struggled against its appli- range within the 40th section. It was a suit to cability to cases of general trusts created by wills ; recover a sum of money secured by judgment nor was the distinction very well defined as to what charged upon, or payable out of, land. And it cases were within the saving of the 25th section, was tolerably clear that it was not within the and what without the bar of the 40th. The words saving of the 25th section, as that applied to land, of the latter appeared sufficiently explicit, “Do not to a gross sum of money charged on land. action, or suit, or other proceeding, shall be brought The statute was thus rendered almost altogether to recover any sum of money secured by any nugatory, its policy subverted, and, in fact, the evils mortgage, judgment, or lien, or otherwise charged which it was designed to check were set up afresh. upon, or payable out of, any land or rent, at law It became very difficult to determine the effect in or in equity, or any legacy, but within twenty years a will of a general charge for the payment of debts, next after a present right to receive the same shall and, if not within the bar of the statute, they have accrued to some person capable of giving a might start up at any distance of time, and each discharge for, or release of, the same."
particular case would have been susceptible of the The saving in the 25th was confined to cases nicest distinctions, and have been decided very where “land or rent was vested in a trustee upon much according to its particular circumstances, or any express trust."
the fancy of the judge--in favour of the debt, if he On these two sections an infinite number of deci- were disposed to fulfil the “ pious intentions of the sions have been made. Much property was in- testator,” and prevent him “from sinning in his volved in their adjudication, and the struggle bas grave," or of the devisee, if he were opposed to been generally keen to maintain demands barred the setting up of “stale demands." by law; yet, generally, “just debts,” the forbear- We have stated these cases particularly, because ance of creditors, and the procrastinating habits of we think they may now be considered as virtually the people of this country, eventuating in the loss overruled. The first blow struck at their authority of their demands. Baron Pennefather, in speaking was by the present Chief Justice, when Master of of the statute in Hunt v. Bateman, observed, that the Rolls, in the case of Knox v. Kelly, (6 I. E. R. it was “a matter of regret, and must strike every 279). That case was undistinguishable from those person as not redounding very much to the credit we have stated, except that the demand was for a of the makers of the statute, made and passed legacy, not a debt, and this in fact constituted no nearly fifteen years ago, that in the decisions on it solid ground of distinction. It was there held so much contradiction should have taken place.” that the legacy was within the 40th section, The framers of the statute might perhaps have barred by it, and not saved by the trust created by retorted with considerable fairness that the repre- the will. hension of the learned Baron would have applied The cases under discussion were further underwith as much justice to its expositors as to its mined by decisions of Sir E. Sugden and Sir James makers.
Wigram, who decided that where estates are in the The first case in this country was that of Knox bands of a beneficial devisee, subject to the payF. Kelly, (6 L. R. N. S. 222.) There the testator ment of debts, there is a liability—not a trust directed his debts to be paid, and, subject thereto, created, and that the creditor will be barred if he devised his real estate. It did not appear that does not pursue his remedies before the time there was any interposition of trustees between the given by the statute has elapsed, Hughes v. Kelly creditor and devisee; “no vesting of land or rent (3 Dru. & War. 48); Harrison v. Duigenan in a trustee upon any express trust.” The will was 2 Dru. & War. 295); Francis v. Grover, in 1810; the debt created in 1791, no payment (5 Hare, 1). subsequently to 1796, the application in 1837.
In Hunt v. Bateman, the question was very careSir Michael O'Loghlen held the debt not barred, fully considered ; and there, though more than and desired “it might be distinctly understood that thirty years had passed without any payment of he rested his decision entirely upon the trust in the principal or interest, or any acknowledgment of will.” And this decision was followed by Lord the debt, it was held not barred. But the distincPlunket in Dillon v. Cruise, (3 I. E. R. 70,) where tion between that case and those we have adverted the devise was to beneficial owners, subject to the to, and on which the decision was made to turn, payment of his just debts, which the testator directed was this, that where estates are conveyed to trustees, to be paid in the first instance. No interposition and they stand between the creditor and the beneof trustees, no vesting of land or rent in a trustee ficial owner, so long as the estate remains in their upon any express trust. The Chancellor, however, hands, the trust remains and the debt subsists ; was of 'opinion that there was an express trust but the learned judges were of opinion, that where created by the will, not a mere general charge, but there was a general charge created, and the lands a devise upon the condition of paying the debts, were in the hands of a beneficial owner, no trust and he held that the case was not governed by the would be created, so as to prevent the bar of the statute of limitations, and that the law was on the statute. same basis as it had been prior to the passing of It may, with fairness, be contended that where the act. Although there were other circumstances the legal estate is in the hands of trustees, the in each case, yet the principle to be extracted is as cases range within the 25th section of the act; we have stated it.
but Mr. Baron Lefroy did not rest the decision These were strong decisions, for it was not very upon that, and conceived such cases entirely out of easy to understand how the latter case did not the operation of the statute; he observes —