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amount of the costs and expenses allowed in such report, Court of Exchequer in Ireland, or to one of the judges of with the name of the party liable to pay the same, and the the court of session discharging for the time the powers and name of the party entitled to receive the same ; and such duties of the Court of Exchequer in Scotland, as the case certificate so signed by the Speaker shall be conclusive evi- may require, and in every such case such delivery or trans. dence for all purposes whatever as well of the amount of the mission of such recognizance shall have the same effect as if demand as of the title of the party therein named to recover the same were estreated from a court of law, and the validity the same from the party therein stated to be liable to the of such certificate (the handwriting of the Speaker thereunto payment thereof; and the party claiming under the same being duly verified) shall not be called in question in the said shall, upon payment thereof, give a receipt at the foot of court. such certificate, which shall be a sufficient discharge for the

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Portobello March 314

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Erish Jurist

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No. 27.-Vol. I.

MAY 5, 1849.

SPer Annum, £1 105,

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, in

Court of Exchequer

John BLACKHAM, Esq., and and ,cluding Bankruptcy


A. HICKEY, Esq., Barristers-atAppeals...... John Pitt KENNEDY, Esq., Bar

Law. risters-at-Law,

Queen's Bench, includ-S FLORENCE M.Carthy, Esq., and WILLIAM BURKE, Esq., and

ing Civil Bill and Re-3 SAMUEL V. Peet, Esq., Rolls Court....... William John DUNDAS, Esq., gistry Appeals........ Barristers-at-Law. Barristers-at-Law.

, ., CHARLES HARE HEMPHILL, Esq. cluding Manor Court 3 WILLIAM HICKSON, Esq., Barand

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

risters-at Law.

Common Pleas...........




DUBLIN, MAY 5, 1849.

ration. But however much or little the interests of the legal professions may be concerned, the consideration of them is utterly uniinportant, when com

pared with the effect that may be produced upon On Thursday, the 26th of April, Lord John Rus- the country. sell introduced his plan for an amended Poor Law. With the experience of the Incumbered Estates On the same night, the Solicitor-general for Eng- Act of last session before our eyes—our predictions land an amended Encumbered Estates bill, also a of its failure now admitted on all hands- we may bill for conversion of leases for lives renewable for be excused for pausing before we come to a conever into fee-farms; and intimated that it was the clusion as to the likelihood of the new measure intention of government next session to introduce having a very extended operation. a measure with respect to judgments—the effect of It was judicious in the extreme of the Premier which will be, we apprehend, to repeal portions of' to let it follow as a supplementary statement of the the 3 & 4 Vic. c. 105, and make judgments no poor law; for except the dread of indefinite poor longer a charge upon land. He hinted also that it law pressure be removed, there will be no purwas in contemplation to improve the system of re- chasers. The certainty of the rate never exceeding gistration in this country.

a certain limit—if there were no rate in aid, a subImportant measures all. Last year we were so ject still left in the dark-will give to the new meaisured to revolutions in the political world, that sure a chance of success, which its cumbrous prethere is now no amount of legal revolution that we decessor had not, and a good harvest would give it cannot contemplate with fortitude, if not with calm- a greater one. It will be conceded, that for the ness. And are we not tried ? We are threatened operations of barter, buyers are essential, and they with the extiñction of three-fourths of the business have been much more wanted than legislation. We of the Court of Chancery, and with it the annihila- do not depreciate the effect of the latter, but the tion of our own.

former is indispensable ; and however sound legisWe do not, however, acquiesce in these gloomy lation may invite the buyer, his zest for the bargain anticipations. Moments of depression may arrive will be contingent on the quality of the article for in the legal as in the mercantile world; but, if sale. We anticipate more benefit from a sound profession be necessary and useful to the public, we system of poor laws, than from a temporary Comshall survive these periods of distress.

mission, When we take away the glare and glitter At the moment we write, when the hands of the of novelty, we shall find this Government CommisCourt of Chancery are full

, we believe there never sion will be little more than the Court of Chancery, was a time when the scale of remuneration was going, if it goes at all, a little quicker. The chief less

. The terms on which our leading men do utility which we anticipate, as its lasting result, will business here, would amaze our brethren in Lon be that it will be found it is possible to abridge the don; and with the return of prosperity, oh quando time now consumed by solicitors, and a precedent dies veniet, will return a different class of business. for celerity may be established. We earnestly It is a mistake to suppose that the distress of the hope that safety may not be sacrificed to speed. country is beneficial to lawyers, and equally a mis- The chief proposed excellence of the bill is the take that the Courts of Equity will fall into disuse gift of a parliamentary title. We know that to if the country prosper ;-it is, in point of fact, then the public

generally, and, no doubt justly, an indethat they come into most active and beneficial ope- feasible title on a skin of parchment presents a


powerful inducement to purchase, and the present po- part or to retain—and the innumerable extrinsic sition of a portion of the country does justify strong causes which legislation cannot provide for, and measures to unsettle property, and by the aid of a yet which sway the land market. new tribunal, to free land from its load of incum- Legislation of this extraordinary character prebrances. We do not object to the principle, but supposes the bankruptcy of the property to be we conceive the legislature imposes upon the pro- sold; and, if such be the fact—as it unquestionably posed Commissioners a task of greater difficulty is in many instances-it is well worthy of consi. than is generally imagined, if they seek to do this deration, whether all creditors should not, in this effectually and justly. As we understand the state- land bankruptcy, be levelled, as they are in cases ment of the Solicitor-general, he proposes not of traders; or, as a nearer approximation to jus. merely to sell the lands, but at once to distribute tice, that the prior incumbrancer should suffer an the purchase-money. For this object the Commis- ad valorem abatement calculated by the value of sioners will have the power to make and vary rules. the land when the investment was made, and its On those rules hinge the fate of the measure; on value when sold. them it stands or falls. The legislature shifts the When the inheritor dealt with the incumbrancer, whole difficulty on a tribunal the offspring of to- he had, in many instances, a sufficient, if not a day, to die to-morrow, with no further appeal than superabundant security; the coinbined effects of to the judicial committee of the privy council. famine and legislation have reduced one-half the

The rules will just be tested, when the period of value of his lands. Is it equitable that all this their dissolution has arrived; either the Commission loss should fall on the puisne, and none on tlie will merge into the Court of Chancery, or the prior creditor ? Nay, further, is it just that it Court of Chancery into the Commission.

should all fall on the inheritor ? Most certainly, The fact is this ; after the statement of Sir debt has drawn on him a heavy punishment ; Robert Peel, ministers found they could rest no severely does he suffer for his own sins, or, what is longer on the laissez-faire system, and they bring much more likely, for the sins of his forefathers

. in a bill with a disingenuous disavowal of its real By recent legislation, a blow is struck at the originator, and a flimsy story of its having been fixity of property. “ Ancient nobility is an hosuggested by the idea of a West India Commission. nourable thing, which hath stood the waves and It has not the merit of originality, nor has it the the weathers of time.” The feudal principle had boldness of Sir Robert Peel's plan. It leaves its grown up as a sentiment which had long obuse to choice, and we question much whether tained, and was long cherished. The tendency of it will not be disused. If Sir Robert's idea had legislation since Peter Thelluson's time, has been to been carried out, there was a power of doing a offer facilities to unsettle, and the design is now great national benefit. The Government took pos- “ to give currency to land.” session of a province bought with Government We do not deprecate the attempt ; we think it money, and distributed it as they thought best. necessary that incumbered properties should be The present Bill falls short ; it leaves to the choice emancipated; but we wish to guard against an of owner and incumbrancer the resort to the new emancipation which is regardless of all vested rights, measure, and establishes a new, untried tribunal, and all settled principles. necessarily more arbitrary than the Court of We cannot close this article without adverting Chancery, for the adjudication of questions of to the fact, that all legislative activity for Ireland property, priority, and legal rights.

is entrusted in the House of Commons, to English And this court is vested with the most unconsti- lawyers. Time was, when Irish lawyers introduced tutional power—that of determining the right of measures affecting the laws of Ireland. Time was, appeal to the judicial committee. In other words when the British senate was adorned by the elo. a tribunal is appointed not only to try, but to de- quence and the learning of members of the Irish termine whether the trial is to be absolutely con- Bar-time was, when every Irish government inclusive and irreversible. Except the force of public sisted on, at least, one law officer of the Crown opinion can be brought to bear on the Commission- being a member of the House of Commons; but ers, the veto thus given them is the most arbitrary now, nous avons changés tout cela, though never conceivable. A most wholesome check given by since the Union was there a greater necessity for our happy constitution was a right of appeal ex Irish legislators. The Solicitor General for Eng. debito justitiæ ; that right kept judges in awe, gave land introduces, and ably introduces, we admit, a security to the suitor, and we regret exceedingly to measure deeply affecting the real property of Ireobserve any precedent for its abridgement. land; the English Attorney General defends the

Such extensive prospects were held out by the Irish Attorney General, for his system of retrenchfirst act for the sale of Incumbered Estates, that, ment in crown prosecutions, a system by whichi taught by the experience of its failure, our readers briefs were put into the bands of counsel when the will think it but wise, if we caution them against prisoner was arraigned, and when, without tiine for forming exaggerated ideas of the present. Its preparation, they were expected to prosecute. success will depend on so many causes—the cha- We care not of what party he may be, but we racter and capacity of the Commissioners-their are satisfied there is no Irish lawyer, with a spark orders—the confidence that their proceedings will of professional feeling, who does not feel it a disinspire-the enactment of an improved poor law- credit and a disgrace that we have no legal reprethe cessation of the potato disease—the induce. sentative on the ministerial side of the House, in ments held out to capitalists—the forbearance or times and crises such as these. harshness of creditors the desire of the owner to

will find 7s. 6d. in the £l, in many instances a tax A Plan for the more effectual relief of the destitute beyond their ability to pay) as to the interests poor in Ireland has at length been proposed, on of incoming proprietors or farmers. These men will the responsibility of her Majesty's Government. make their purchases, or adjust their rents with a The Poor-law of 1837, so tenaciously clung to full knowledge of the amount of taxation to which despite of the remonstrances of every one having they will be liable; and in these instances, as far as any knowledge of Irish affairs, has at length been they are concerned, it will be as if there were no acknowledged as unequal to the difficulties of the poor rate whatever they will either allow for the present crisis

The Prime Minister, having in poor rate in the purchase-money, or in the rent ; vain sought for advice from a convention of the so that in either case the whole weight will fall on Irish Members, has plagiarised some confiscatory the present proprietor. However, this limitation ideas from the plan of Sir Robert Peel, and, min- may (and does seems calculated to have the effect gling these with notions of his own, has produced of inducing capitalists to speculate in land--and this, a measure which contemplates the advantage of even on such terins, it is of great importance to getting rid of incumbered proprietors, without the encourage. least regard to the terms on which they may be de- We do not know on what principle to account prived of their estates, or to the extent to which for the next proposition of the Premier, namely, their sale may satisfy the claims of incumbran- that the Poor Law Commissioners shall have the cers.

power to settle the past liabilities of certain elecThat a nominal landlord, who is unable to per- toral divisions. If the poor rate be a primary charge form the duties which properly attach to the owners on property, and if a judgment can be obtained to of land, should be compellable to give place to others enforce the payment of it, we do not see why, in who can perform those duties, is a principle which every instance, the proprietor should not be inade we have always advocated; but, that a landlord to pay; nor do we see why, with justice, arrears should be compelled to part with his estate, at the should be remitted to one proprietor, when another depreciated value to which the mismanagement of proprietor has been held liable. The latter prothe Government of the country for the last three prietor might, with as much justice, demand that years has reduced it, we consider in the utmost his money should be refunded to him, as the former degree inequitable. Many proprietors, who have expect that his arrears should be remitted ; besides, done the utmost that could be done, to alleviate the this provision rewards the non-paying proprietor, condition of their tenantry, and to raise the value of and would no doubt encourage a similar course of their estates, will, by this enactment, be literally conduct. With regard to persons who are not beggared; and incumbrancers, who lent their money owners, the same reasoning applies; their interests but a few years since on unquestionable security, are worth something, and if the poor rate can be will, in many cases, find that the proceeds of the collected in no other way, these interests should be sale will not reach their claims, and because the sold. A tenant will scar

carcely be allowed to hold a Government would persist in applying to a pauper. farm without paying rent, and if he can pay rent, ized country a principle which might profitably be his non-payment of the poor rate should be no applied to a rich and prosperous one.

reason for striking off the arrear. Waste, untenWe can understand that a rich proprietary inight anted lands are not in a very different position ; be induced or compelled to provide profitable em- they too are worth something at least worth the ployment for able-bodied paupers, by being taxed amount of poor rate due on them ; and when it is for their support ; but we cannot understand, remembered that each “settlement of past liabilihow the taxation of pauper proprietors could lead ties" increases the rate to which the property of the to any such beneficial result. That the Govern- industrious farmer or owner will be liable, it is ment should not undertake the employment of a clearly only justice to this useful class, that propauper population, but, should use means to induce perty, whether in the occupation of owners, of faror compel owners of land to employ them, as a gene- mers, or waste, should be held liable for rates which ral principle, we admit; but we assert, that general other property in the division or union, has been rules should not be applied iu cases where there is compelled to pay. Do possibility of their success-supporting a popu- The avowed object of the confiscatory part of this lation in idleness, at the expense of a ruined pro- bill, is, that by the introduction of men with capital prietary, to compel them to employ that popula- and enterprise in the room of the present proprietors, tion-is one of these cases. That this principle is employment may be afforded to the able-bodied at length deserted, is apparent from the introduc- poor, who may thus be enabled to earn their own tion of a maximum with regard to the rate, on subsistence. The same object, avowedly, is aimed separate divisions and unions-one of the most im- at by the reduction in size of electoral divisions portant alterations proposed in the present bill. and unions, thus rendering it possible that the When a Government deserts a principle, it should exertions of a few improving proprietors should not be forgotten that some consideration is due to sensibly affect the amount of poor-ratè. We find those interests which have been injured—nay, in some difficulty in reconciling these avowals with some instances, destroyed by the adoption of the statement of the Premier, “that it would not be and perseverance in it.

useful to make a further division of unions, unless, Late, as the proposition of a maximum has come, at the same time, some provision were made for we hail it as an alteration of great importance and new work-houses.” If the Premier has any convalue, not so much, however, to the interests of the fidence in his own plan, he should contemplate such present proprietors, in the distressed unions (who la reduction in the present extent of pauperism as


would render the present work-house accommodation with respect to the rent thereby reserved, and with amply sufficient. From what we have seen, heard, and subject to such other covenants, conditions, and read on the subject of work-houses, we con- exceptions and reservations (save covenants to grant sider them most objectionable institutions--destruc- or to accept and take a renewal of such lease and tive to the morality and self-dependence of their in- such covenants, conditions, exceptions, and reserva. mates-confining large masses of poor, only to tions as may be commuted as herein-after menexpose them to the ravages of fever or cholera. tioned) as are contained in such lease, and then Far from wishing for the multiplication of work- subsisting ; and where lands in Ireland are held houses-we would very sincerely rejoice in the under any under-lease in perpetuity of any degree diminution of their number. Lord John, however, of tenure, the owner of such under-lease

, at any seems to contemplate the permanent establishment time after the passing of this act, and whether the of pauperism, and recommends the diminution time for renewal has or has not arrived, may reof the size of unions rather, as affording facilities quire the owner of the lease or under-lease in per

. for a more convenient distribution of the paupers, petuity out of which such first-mentioned underlease by increasing the number of poor-houses, than as is derived, or the owner of the estate of inheritane supplying anything in the way of stimulus to the which may have been granted in respect of the exertions of proprietors.

lease or under-lease, out of which such first-men. We accept that part of the bill which proposes tioned underlease is derived, to execute a grant acto render jointures and rent-charges by way of cording to the provisions of this act, of the lands life annuities, liable for poor-rate, as a promise of comprised in such first-mentioned under-lease ; a change in the principle of taxation. We cannot and the owner so required, shall thereupon execute assent to the proposition, that any person, in con- a grant to the owner of such under-lease of an essequence of possessing a peculiar species of pro- tate of inheritance in fee simple in such lands, subperty, should be allowed to plead an exemption ject to a perpetual yearly fee-farm rent, of suels from contribution for the support of the poor. amount as herein-after mentioned, to be charged

opon such lands, and to be payable on the same

days and times as the yearly rent made payable by LEASEHOLD TENURE OF LANDS

such under-lease, and subject to the like covenants (IRELAND.)

and conditions for securing such fee-farm rent, as

are contained in such under-lease with respect to A BILL INTITULED AN ACT FOR CONVERTING THE

the rent thereby reserved, and subject to such RENEWABLE LEASEHOLD TENURE OF LANDS IN

other covenants, conditions, exceptions, and reserv.

ations (save covenants to grant, or to accept and Whereas many lands in Ireland are held under take a renewal of such lease, and such covenants, leases and under-leases respectively, with covenants conditions, exceptions and reservations, as may be for perpetual renewal, and great expense is con- commuted as herein-after mentioned) as are constantly incurred in procuring renewals under such tained in such under-lease, and then subsisting; covenants, and much litigation and inconvenience and upon the delivery of every such grant as aforearise from such tenures ; and it is expedient that said, to the owner requiring the same, he shall such tenures should be converted, in manner here- execute and deliver to the owner executing such in-after provided, into tenures and fee, and that, grant, a counterpart thereof; and every such grant except as herein excepted, all leases and under and counterpart shall be prepared by the owner by leases of lands in Ireland, with covenants for per- whom the grant is made, and the expense of the petual renewal, granted or made after the passing preparation and execution of such grant and counof this act, should operate and take effect in man: terpart shall be paid by the owner to whom the ner herein-after mentioned: be it therefore enacted grant is made : provided always, that the owner by the Queen's most excellent Majesty, by and with required to make any such grant as aforesaid

, shall the advice and consent of the Lords Spiritual and uot be obliged to execute such grant until, where Temporal, and Commons, in this present parliament the time for renewal of the lease or under•lease by assembled, and by the authority of the same, that the owner of which the grant is required bas not where lands in Ireland are held under any lease arrived, all such arrears or sums, if any, of or in in perpetuity, the owner of such lease in perpe- respect of rent as, if the time bad arrived for retuity, at any time after the passing of this act, newal of such lease or under-lease, and a bill had and whether the time for renewal bas or has not been filed for the renewal thereof, would have been arrived, may require the owner of the reversion to required by a Court of Equity to be paid on sucha execute a grant, according to the provisions of this renewal, and where the time for renewal of such act, of the lands comprised in such lease; and the lease or under-lease has arrived, or where there has owner of the reversion, upon being so required as not been a renewal of such lease or under-lease at aforesaid, shall execute a grant to the owner of or after the time at which the same might have been such lease of an estate of inheritance in fee simple last renewed according to the covenant for renewal

, in such lands, subject to a perpetual yearly fee-farin all such arrears or sums, if any, of or in respect of rent, of such amount as herein-after mentioned, to rent, and, also, all such fines and fees, if any

, and be charged upon such lands, and to be payable on interest as would have been required by a Court of the same days and times as the yearly rent made Equity to be paid on renewal of such lease or ‘payable by such lease, and subject to the like co-under-lease, are paid ; provided also, that no owner venants and conditions for securing the payment of required to execute any such grant as aforesaid such fee-farm rent as are contained in such lease, I shall be obliged to excute such grant where the

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