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Irish Jurist


No. 25. — Vol. I.
APRIL 21, 1849.

SPer Annum, £1 JOS,

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 :Court of Chancery, in

cluding Bankruptcy 3 John Pitt Kennedy, Esq., Bar-

Court of Exchequer S JOHN BLACKHAM, Esq., and

A. HICKEY, Esq., Barristers-at

Appeals ......
Queen’s Bench, includ- Florence

M.Carthy, Esq., and

ing Civil Bill and Re-3 SAMUEL V. Peet, Esq., Rolls Court...

WILLIAM John DUNDAS, Esq., gistry Appeals......... Barristers-at-Law.

Exchequer of Pleas, in- S Cuas. H. HEMPHILL, Esq., and
CHARLES HARE HEMPHILL, Esq. cluding Manor Court William Hickson, Esq., Bar-

and Equity Exchequer.....

and Registry Appeals. risters-at-Law.
risters-at Law.

Common Pleas...




DUBLIN, APRIL 21, 1849.

under this acknowledgment it was supposed that the landlord could at once have the habere renewed,

and the occupying tenants put out of possession. We are glad to find the Courts of law protecting The Court of Queen's Bench have held very the interests of occupying tenants, and that even differently in Lessee Knox v. Gildea, reported in in their absence—we are glad to find them constru- (11 Irish Law & Equity Reports, p.198). An applicaing the strict terms of an act of parliament in favor tion was made for liberty to renew an habere, where of industry, and the encouragement of agricultural tenants were allowed to remain in possession unexertion.

der the provisions of this act. It was held that, To enable the landlord, without injury to himself, an application should have been made to the to act with humanity to the tenants in the occupa- tenants to deliver up possession, or else a notice tion of land, for the recovery of which he may have served on them, of the intended application to the obtained an habere, the 9 & 10 Vict. c. 111, was 'court," and when at length, on the affidavit of serpassed ; in the 8th section of this act, it is provided, | vice of the conditional order, and of the demand of “ That it shall be lawful for the sheriff, or his possession, the order was made absolute—it was bailiff or officer, upon the consent in writing of made so, with a stay of execution until the 1st of the lessor of the plaintiff, or the attorney of the November, on the ground that in the interval plaintiff, to execute any writ of habere facias pos- which had elapsed, the tenant might have cropped sessionem, in any action of ejectment, or any civil the land. Landlords may complain of this decision, bill decree for the recovery of the possession and look upon it as a breach of faith with them, of lands and tenements, without removing there that they were induced by the statute to permit from, or disturbing the possession or occupation of the occupying tenants to remain in the possession any undertenant or occupier, who shall, at the time of their holdings, distinctly on the terms, that they of the execution of such writ or decree, sign with would be enabled to recover possession of them at bis or her name, or mark, attested by such a moment's notice, when an opportunity might sheriff, or officer, an acknowledgement according occur of disposing of them to advantage, and which to either of the forms, Nos. 1 and 2, in the sche- opportunity might be lost by the obstacle thus dule to this act annexed.” This section of the act occasioned by the court. enables the landlord, if so disposed, to leave the When it is considered, that the leaving of the ococcupying tenants in possession. The schedules cupying tenants thus in possession, is at the option referred to appeared to place the tenants, as to the of the landlord in the first instance, and that the continuance of their occupation, entirely in the object of the statute was to protect the tenant from power of the landlord, the tenants being required unnecessary bardship; the decision cannot be obto acknowledge, that they “held or occupied the jected to. To induce a tenant to crop his land, lands and tenements now in their respective occupa- by thus leaving him in possession, and to enable tion, by the leave and license, and for and on behalf a landlord to eject him the moment he had his land of, and at the will of the landlord ; and that they so cropped, would be to expose him to more serious will severally and respectively, when required by injury, than that from which this statute was enacthe landlord or his authorized agent or receiver, ted to protect him. deliver up to the said landlord, or his authorized We fear, however, that this decision, equitable agent or receiver, the possession of the said lands as it is, will have the effect of rendering the statute and premises in their respective occupation.” And l inoperative: a landlord having obtained an habere,

50 0 0

750 0 0

950 0 0 200 0 0

461 31

after, perhaps, tedious and expensive proceedings, Except the Chief and Second Remembrancer

, will hardly be induced to adopt a course by which and the Accountant-General and his clerk, the his actual possession of the lands would be deferred officers of the Equity side of the Exchequer are in all likelihood for another year.

paid by fees, whilst in the Court of Chancery the officers (save the examiners and secretaries) are paid fixed salaries, and the fees received are

accounted for to the public fund, or, in many inTo the Editor of the Irish Jurist. SIR.-I send a copy of observations and sugges-duties.

stances, are paid in the form of Equity fund stamp tions which I lately forwarded to a Member of

By a transfer of the business to Chancery, the Parliament, and which, it appears to me, may fees, and stamp duties in respect of fees, would not be out of place to publish in your paper, if you thenceforward go to the public account

, and the consider them worth insertion.

following officers would be dispensed with (subject

, Your obedient Servant, of course, to their right to life compensation

, S.

in case they might not be appointed to offices in Observations and Suggestions as to the Transfer of Chancery) :

Salaries or Esti. the Equity Jurisdiction of the Court of Exche

mated Emoluments

. quer to the Court of Chancery.

The Second Remembrancer (salary) £1,000 0 0 The proposed change (which, as to England, has His clerk, been effected by the 5th Vic. c. 5) is desirable, on The Registrar and clerk, say,

• 1,500 0 0 the grounds recited in the preamble of that statute, Assistant-Registrar and clerk, say, which applies equally to the Irish Court, in which (The Registrar's ordinary clerks the law business exceeds in extent that of any of might be transferred to the the law courts.

corresponding offices in Chan2ndly. Because it is of great public importance cery.) that one uniform system of equity should be ad- Two Examiners and clerks, •

1,800 0 0 ministered in this country :

Secondary and Clerk of the Writs, Instead of, as at present, witnessing that frequent Their clerks, conflict of opinion between the decisions of the two Accountant-General and his clerks, Irish courts on many points of great importance, (salaries) and, in particular, on the construction of modern and recent Acts of Parliament, so derogatory to

£6,711 81 the character of the general administration of For want of returns, the amount of the emolu. justice.

ments of officers paid by fees at present receivable

, 3rdly. Because, owing to the quantity of law are stated from general reputation, and, as is business (which is largely in arrear), the court believed, under the mark. The exact amount may can devote but a short period, during the law be ascertained by the returns furnished by those Terms, to equity business; and, as the Chief Baron officers to the Treasury, pursuant to the act usually sits at Nisi Prius during the Equity sittings 6 & 7 Vic. c. 55, ss. 13 & 14. By a late return to after Term, cases involving any serious point, the House of Commons, the gross income of the which may have been partly heard during the above officers is £10,441 2s. 10d.; but it will be Term, will not be proceeded with in his absence, found, that in this, the officers have included the and are thus postponed, from Term to Term, to the amount of compensation to which they are for life delay and loss of suitors.

entitled, in consequence of the diminution of fees 4thly. Because the administration of law and occasioned by the 6 & 7 Vic. c. 55, which was equity by the same court has been found incon- estimated on the average of the fees received by venient, and tends greatly to delay both classes of cash for the seven years previous to November

, suitors, and because of the loss of time arising 1842, and which included the great temporary from conferences and consultations on the bench, additions caused by the proceedings for the recoincident to its being composed of several persons.

very of tithe composition. Thus the income of the Sthly. Because the practice of the Court of Secondary is returned as £3,069 175. 4d. Exchequer, even with the recent reforms (under

The fees payable in Chancery for the same the acts 6 & 7 Vict. c. 55 and 78, and the General Orders thereunder), is, in many respects, more lidated fund, a much larger amount than the cor

quantum of business, would realise to the consodilatory, unsatisfactory, and expensive, than that of responding fees in the Exchequer—the office fees the Court of Chancery.

being in many instances much higher in the former It appears, indeed, to be conceded on all hands, couri, e. g. a common order of two sheets in the Exthat the proposed change would be advantageous chequer, costs 3s. 1d. (4 Geo 4, cap. 70, Table 4). to the public, and the sole ground of objection to In Chancery, 12s.6d. (general order, 25th January, its adoption seems to be one of finance that it 1837), although owing to the difference of practice

, would entail expense which the present state of the expense to suitors is nearly the same in both the revenue cannot afford to meet. Now, this is

courts. The present Chief Remembrancer, and manifestly erroneous in fact; and the following his Examiner might be transferred to Chancery ; statement shews that the alteration may be effected, the former as a fifth Master at his present salary, not only without loss, but be actually made a means (£2000,) with a right to succeed, on a vacancy ou to add to the public income.

curring amongst the present Masters.

The fiscal and Revenue duties at present per- rested, and shall also have authority to seize his formed by the Chief Remembrancer, might easily books, papers, monies, goods and chattels, wherebe transferred to and transacted by the Master, at soever i hey may be found, &c. the law side of the court, who has scarcely any 5. Any person so arrested, or whose books, &c., duty to perform beyond a general superintendance are seized, may apply for his discharge forthwith, over the other officers.

or that the petitioning creditor do shew cause why The Court of Chancery, with the addition of a his books, &c., should not be delivered up. Comfifth Master, could with its present machinery, missioner may make such order as seems to him fit. beyond doubt, transact the whole Equity business Order may be appealed from. of Ireland. There is no arrear of business in the 6. Any person so arrested may apply for his disCourt of Chancery, or the Rolls Court. The charge forth with. Cominissioner may discharge Master of the Rolls concluded his business on the the person or not. Order of commissioner may be 13th of March last; the Lord Chancellor, with an appealed from. unusually heavy list, about two days later,—and 7. No person liable upon an act committed more if those courts should continue their sittings for than 12 months prior to issuing of commission. even near the periods during which the English 8. Act of bankruptcy committed within a year Equity Judges sit, there can be no doubt, but that of the issuing of a commission whether prior or subthe entire Equity business could be by them effi. sequent to petitioning creditor's debt, sufficient to ciently discharged without the necessity of creating support adjudication. a Vice-Chancellor, and if so, an addition of at least 9. Requisite amount of petitioning creditors debt. £6000) a-year, would result to the Revenue. For single debt of such creditor, or of two or more

The present staff of Chancery, (with the addition partners £50, of two creditors £70, three or more of a few copying clerks, who would be remunerated creditors £100. by the increased fees on the additional business), 10. Persons herein specially named liable to be is unquestionably adequate to transact the entire come bankrupts. business, including the proposed addition.

11. Creditor of a trader making affidavit of his Suppose, however, it should turn out that an debt, and of his having required payment, commisadditional Equity Judge would be required, the ex-sioner may summon the trader. pense thereby to be entailed would be:

12. Manner of proceeding on summons of trader A Vice-Chancellor. (Salary and

by a creditor. jurisdiction, similar to that of the

13. Trader not attending summons, or refusing Master of the Rolls,)

£3,969 4 7 to admit the demand, and not making deposition of An additional Registrar, (the Ex

belief of a good defence thereto, and not paying or chequer Registrar to be the first,

compounding within a certain time, or giving bond and the future patronage of this

for payment, to be deemed to have committed an and the other offices, to be vested

act of bankruptcy. in the Vice-Chancellor),

1000 0 0 14. Trader signing an admission of demand in Crier and train-bearer,

140 00 form prescribed, and not paying, securing or comA clerk in court, (same as Rolls

pounding within a certain time, an act of bankCourt, and an Exchequer officer,

ruptcy. might receive the first appoint

15. Trader admitting part only of a demand, and ment),

600 00 not making deposition of a good defence to the resi

due and not paying, securing, or compounding for

£5709 4 7 sum admitted, and as to residue not paying or comThus even creating an additional Judge, the pounding or entering into bond to pay any sum rechange could be effected without loss to the con- covered with costs, an act of bankruptcy. solidated fund.

16. What shall be deemed a refusal of admission Again, a Vice-Chancellor might be selected from of debt. Commissioner may enlarge the time for the Barons of the Exchequer, and that vacancy filled admission of demand. up by a transfer of one Judge from the Common 17. Admission of debt signed elsewhere than in Pleas-for the business of which three Judges would court, if attested by attorney of trader may be filed, seemn sufficient; and a Queen's Counsel might be and have the same force as an admission signed by selected to act, as is frequently the case, as a Judge a trader on his appearance before commissioners of Assize.

under the summons.

18. Trader summoned on affidavit of debt to have

such costs as the commissioners shall think fit. Or A BILL INTITULED AN ACT FOR THE commissioner may direct the costs to abide the

AMENDMENT OF THE LAW OF BANK- event of any action for the debt.

19. Wherever a creditor plaintiff shall not re1. Date of commencement of this act.

cover the amount sworn to in his affidavit of debt 2. Laws at variance with this act repealed. filed against a trader, if such affidavit be made for 3. Petitioning creditor's bond may be dispensed such amount without probable cause, the trader with.

defendant shall be entitled to costs. 4. Person against whom a commission has issued 20. Trader not paying, securing, or compoundop proof of probable cause for believing that he is ing for a judgment debt, upon which the plaintiff about to quit Ireland, or to remove or conceal his might sue out execution, within 14 days after notice goods with intent to defraud creditors, may be ar- requiring payment, an act of bankruptcy.

21. Trader disobeying order of any court of whenever the commissioner thinks fit after the time equity, or order in bankruptcy or lunacy, for pay- appointed for the bankrupt's last examination. ment of money, after service of order for payment 42. Commissioner may order three month's wages on a peremptory day fixed, an act of bankruptcy. or salary to clerks or servants.

22. Trader fíling a declaration of insolvency in 43. Commissioner may order wages not exceed. the office of the secretary of bankrupts, an act of ing 40s. to labourer or workman. bankruptcy.

44. Search-warrants may be granted. 23. Secret transfer of goods shall be deemed an 45. In cases of member

of a firm being bankrupt

, act of bankruptcy.

the commissioners, upon application, may authorige 24. Transfer of goods and chattels when to be actions or suits in name of the assignee of the deemed a secret transfer within the meaning of last bankrupt and the remaining partner. Partner to section. Proviso to save right of bona fide purcha. have notice of such application, and may shew capse ser or holder for value without notice. Proviso for against it. Commissioner may direct partner to assignment of vessels under 3 & 4, Wm. IV.cap. 55. have part of proceeds.

25. Filing petition for arrangement between a 46. Bankrupt not surrendering or submitting to trader debtor and his creditors, with the concur- be examined, or making discovery of his estate and rence of a certain number thereof to be an act of effects, or not delivering up his estate, books

, de bankruptcy if petition dismissed.

or concealing, &c., to the value of £10, guilty of 26. Manner of making a debtor a bankrupt by felony, and liable to transportation or imprisonment affidavit of debt and notice to pay. Creditor to file with or without hard labour. an affidavit of debt, and serve notice requiring pay 47. Commissioner may enlarge the time for the ment within 21 days.

bankrupt surrendering himself. Commissioner may 27. If commission pot proceeded on by petition order that bankrupt shall be free from arrest for ing creditor within 3 days, any other creditor may three months after final examination. proceed on it.

48. Bankrupt destroying or falsifying any of his 28. If bankrupt shall not proceed to dispute the books, &c., or making false entries guilty of a mis. commission and prosecute with effect, the Gazette demeanour, and liable to imprisonment

, with or to be conclusive evidence of the bankruptcy, as without hard labour. against the bankrupt and against persons whom the 49. Bankrupt, within three months of his banka bankrupt might have sued had he not been adjudged ruptcy, having obtained goods on credit under false bankrupt. Saving present rights for which any pretence, or removing, concealing, &c., goods so proceedings are pending.

obtained, guilty of a misdemeanour. 29. Provision for debtor to the bankrupt's estate 50. Bankrupt arrested under warrant from compaying the debt into court when sued by the assig- missioner may be committed. nees within the time for bankrupt to dispute. 51. Warrant of committal for unsatisfactory an

30. One or two persons being merchants, bro-swering or refusing to answer, need not specify kers, or accountants, or persons who have been en- questions. Copy of examination to be furnished to gaged in trade, or resident in Ireland, shall be the person committed. chosen by Lord Chancellor to act as official assig 52. Obstructing the messenger, &c.

, a misdeDees. Their duty.

meanor. 31. Commissioners may take security by recog 53. Commissioner may order release of bankrupt nizance or of Guarantee Society.

who may be in prison at time of obtaining protec32. Official assignees to receive bankrupt's estate tion. and effects. How to apply same.

54. Commissioner may order release of bankrupt 33. Proviso restricting the authority of the of- in execution under a Ca Sa after a certain term of ficial assignee.

imprisonment. 34. Lord Chancellor may remove official assig 55. Prosecution against bankrupt for any offence nees, and may fill up vacancy in their number. under this act may be ordered by the commissioner

35. Power to appoint official assignees to act with acting in the prosecution of the commission. the existing assignees under commissioners now 56. Bankrupt may be discharged by certificate pending, and to whom the latter shall deliver over of conformity in manner hereinafter prescribed effects.

Discharge of bankrupt not to release or discharge 36. Official assignee may act until creditors as- a partner or person jointly bound. signee appointed. May sell the property, if com 57. Bankrupt not entitled to certificate if he has missioner so order. And make allowance to bank- lost by gaming £20 in one day, or £200 within twelve rupt for his support. Property vested in official months; or £200 by stock-jobbing; or concealed assignee to go to his successor.

or destroyed books, &c.; or made fraudulent entries, 37. To exempt official assignee from personal or concealed any property, or permitted fictitious responsibility.

debts to be proved. 38. Debtor and creditor account to be furnished 58. On the application of bankrupt, commissioner by official assignee to creditors assignee before di- may appoint å sitting, of which twenty-one daya vidend.

notice in Gazette. Creditor may oppose. Commis39. Remuneration to official assignee.

sioner may grant at discretion. *Certificate not 40. Pay, half-pay, and pensions of bankrupts to to be a discharge unless commissioner certify a full be applicable for the benefit of creditors.

conformity. 41. Audits and dividends to be had and made 59. Contracts or securities to induce creditors to

forbear opposition to be void. Certificate of bank- ditors to remove creditors assignee, and appoint rupt to be also void.

another in his stead. 60. Penalties for obtaining money, goods, &c. as 81. 6 W. 4, c. 14. Personal and real estate of an inducement to forbear opposition or consenting bankrupt to vest in the new assignee by virtue of to allowance or confirmation of certificate. appointment. The removed assignee shall fully ac

61. Bankrupt having obtained his certificate free count. from arrest. Certificate to be evidence of the bank. 82. Actions or suits not be abated by removal of ruptey and proceedings. Bankrupts in execution assignees. may be ordered to be discharged.

83. Costs may be awarded by commissioner of 62. Pankrupt not liable upon any promise to pay bankrupt. Persons brought up by warrant may be debt discharged by certificate, unless such promise ordered to pay the costs of bringing them up. be in writing

84. Orders of commissioners of bankrupt for pay63. Allowance to bankrupts. £5 per cent., and ment of money or costs, to be enforced by writs out pot exceeding £400 as soon as 10s. paid in the of Chancery. pound. £7 10s. per cent. and not exceeding £500 85. Persons capable of giving evidence respectif 12s. 6d. £10 per cent. and not exceeding £600 ing trading or act of bankruptcy; or suspected of if 158. Allowance not payable till twelve months having bankrupt's property and being in prison, after date of commission, and then only, if requisite, may be brought for examination under warrant from amount of dividends paid. And not to be payable commissioners of bankrupt. to any bankrupt who has not been a trader for 12 86. Bankrupt in custody in England or Scotland months. If at expiration of twelve months, the di- or Ireland to be brought before the commissioners. vidend paid be under 10s., or if no dividends paid, 87. Depositions, &c. under commissions may be bankrupt may be allowed not exceeding £3 per cent. entered of record without order of Lord Chancellor or £300, although not a trader for twelve months. being necessary. Certificate of entry endorsed to

64. One partner may receive allowance though be evidence of the entry. Fee of 1s. payable on others not entitled.

search for any such record. 65. Interest allowed upon all debts or sums certain 88. Where second or other commission is issued proveable, though not agreed for. From time deht against one or more partners, proceedings under is payable by virtue of some written instrument, or second commission shall be stayed and form part of if none, from time of demand in writing.

first commission if Chancellor so order. 66. Duplicate copy of schedule deposited with 89. Three-fifths in number and value of creditors the registrars by bankrupt before final examination, of bankrupt may accept a composition. and open to inspection.

90. Mode of voting in deciding upon such com67. When proceedings cease file to be deposited position. with the registrars.

91. How notice shall be given to the creditors. 68. Registrars and secretary of bankrupts to 92. Creditors served with notice, bound to accept hold office during good behaviour.

the composition agreed to, whether they shall or 69. Ist Vict. c. 48. Whenever bankruptcy fund not have proved their debts under the commission. insufficient, the salaries of second commissioner of 93. Any debtor unable to meet his engagements bankrupt and assistant-registrar shall be paid out of with his creditors and unable to obtain their conthe Suiters Fee Fund.

sent to a deed of composition, may with the con70. Commissioners may permit mortgagees to bid currence of two-thirds in number and value petition at sale.

the commissioners. 71. Goods and chattels under seizure by virtue 94. Petition to be in form in Schedule I, and of attachment shall, upon demand, be delivered up supported by affidavit. to any person appointed by the commissioner. 95. Commissioners privately to examine into mat

72. Before whom affidavits are to be sworn. ter of petition, and if satisfied may allow the same

73. Rules to be made for regulating the forms of de bene esse, and appoint meeting of creditors, and proceedings and practice to be observed in prose- may grant protection during examination, and after cuting commissions.

allowance de bene esse of petition. 74. Warrants to be under hand and seal, and 96. How notice shall be given to the creditors. every summons to be in writing under the hand of 97. Commissioner to examine into matter of petia commissioner.

tion. If resolution of creditors not confirmed, pe75. How summons may be served where the party tition shall be dismissed and protection cease. is keeping out of the way. Delivery of copy of no 98. Commissioners may renew protection, and if tice or summons to the wife or servant or some adult petitioning debtor be in custody, may order release, inmate, shall be equivalent to personal service.

76. Punishment of persons giving false evidence, 99. Commissioner to appoint a registrar of the or swearing or affirming anything which shall be court, or one of the principal petitioning creditors false.

to preside at the meeting of the creditors. 77. Application of forfeitures.

100. If, at first meeting, major part in number 78. All bills of solicitors and attorneys to be and value, or nine-tenths in value, or nine-tenths taxed by one of the registrars of the Court of Bank-in number, whose debts exceed £20 assent, another ruptcy, subject to review.

meeting to be called. 79. Bills of auctioneers, appraisers, valuers, and 101. If, at second meeting, three-fifths in number accountants, to be settled in the same manner. and value of all the creditors present agree to accept,

80. Power to commissioner with consent of cre.


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