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Erish Jurist

No. 29.-VOL. I.

MAY 19, 1849.

PRICE

(Per 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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Dublin: M'Glashan.

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unions-he shews that it would be almost as just to
propose to levy an equal tax on all the properties
of Ireland, to pay off the incumbrances that press
heavily on some of her proprietors, as to call upon
building workhouses in another.
one part of Ireland to repay the sums advanced for

He

But it is easy to indicate the evils of this system It is pleasant to find a man of ability and experi- to show that if persevered in it must lead to unience devoting leisure moments, snatched from the versal confiscation and beggary-Mr. Butt goes pursuit of a laborious profession, to the illustration farther, and suggests means by which the country of subjects of great difficulty and national impor- might be rescued from its present calamitous contance. Such an illustration has lately appeared in dition. In making his suggestion, our author does the form of a letter on the rate in aid, addressed not rely on any legislative enactment, suis viribus to the Earl of Roden by Mr. Butt. In this letter, being adequate to work the regeneration he conthe subject of our present notice, the writer does templates as possible. He relies, in the first innot confine himself to a narrow or partial view of stance, on an effort on the part of Irishmen themthis difficult question. He discusses the whole sys-selves, to call into action the resources of the countem of relief under the Irish poor law, noticing, in a rapid retrospect, the circumstances and enquiries which led to the enactment of the first act in 1837, tracing its operation to the appearance of the potato blight in 1845, and from thence to the proposal for a rate in aid in 1849, demonstrating the ruinous character of a system which increases pauperism at the same time that it diminishes the fund from whence destitution is to be relieved. Entering into statistical details, he points out, firstly, that every acre of cultivated land in England produces, upon an average, very nearly twice as much as the same quantity in Ireland; and, secondly, that the quantity of land on which, in England, two agricultural labourers are located, must in Ireland give sustenance to five, and hence that one great element towards rendering the country self-supporting, must be sought in increasing the productive power of the soil-which the measure of the minister has no tendency to encourage. Viewing the question politically, he points out that the imposition of this tax is to declare the act of Union a nullity; and looking at the purposes to which some of the proceeds of the rate would be applied-in the payment of debts due by some of the southern and western

try. The prosperity of every country depends upon
the exertions and enterprise of the people them-
selves; to stimulate and aid in such efforts is all
that governments and legislatures can effect.
proposes that the Irish gentry should make com-
mon cause with their country-that they should
endeavour to raise the condition of the mass of her
people. Until they are made comfortable, all hope
of building up the superstructure of society is vain;
and this can be effected only by the determination
and energy of Irishmen themselves. He demon-
strates the folly of relying solely on the introduction
of English capital. "Capital lies around us-it lies
in the productive energies of our soil-it lies in
our uncultivated wastes-it lies in our teeming
fisheries-it lies in the sinews of the men, that famine
is wasting from our land."
It is idle to suppose
that it will be impossible to find spades for the
very labourers whom the poor rate is supporting—
to turn this labour into a profitable channel, would
require an alteration in the law; but if the Irish
gentry do not make an effort to help themselves,
it is impossible any act of the legislature can save
them.

With this view he proposes that the nobility and

together perhaps too hurriedly, and at intervals. and as rapidly as the ideas suggested themselves to the mind of the writer-that is, with the rapidity of a man of the quickest possible apprehension. The composition is easy, and some passages are in Mr. Butt's best style. He thus describes the altered appearance of the population in the south of Ire land :- "In the great cities in the South of Ireland,

gentry of Ireland should form themselves into a voluntary association, whose care it would be " to obtain and diffuse information as to the available resources of the country-the methods by which they could be best drawn into action-and the means by which our people could be best employed;" followed up by voluntary associations in every district, of which the boards of guardians might form the nucleus, who would devise and for--in every step the traveller is beset by famished ward the best means of employing the poor and elevating their condition-of establishing manufactories, even the rudest, fostering those which were established-stimulating the industry, and instructing the efforts of the population.

Subsidiary to this great combined effort on the part of all interested in the prosperity of the country, Mr. Butt proposes that speedy and effectual assistance should be afforded from the imperial exchequer for the completion of railway communication in Ireland-for the establishment of a packet station on the western coast, and a dockyard in some of our harbours-a thorough amendment of the poor law, basing it on the good old poor law of Queen Elizabeth-the establishment of an Irish board of trade and plantations, with large and extensive powers for the compulsory purchase of reclaimable lands, into whose reclamation and improvement might be absorbed, in part, the surplus labour of the country. He suggests also a measure to regulate emigration.

The most important part (in a legislative point of view) of Mr. Butt's suggestions, are those by which he proposes to provide the funds that may be necessary to carry out the relief of the labouring population, in districts where the local resources are unequal to the task. He proposes,

1st, To tax the property of all absentees. 2nd, To levy a small tax on articles of manufacture imported into Ireland.

3rd, To levy a tax on all official salaries in Ireland, and on all realised property not otherwise liable to poor rate.

4th, That such portions of the revenue as are exclusively raised in Ireland, should be devoted to Irish purposes. The funds thus derived, and which he calculates would amount at least to one million and a half of annual income, he proposes to place at the disposal of his board of trade and planta

tions.

Whether these enactments and amendments are the very best that could be adopted under the circumstances, we do not here pronounce, further than that they would, if carried out, be a great improvement on the present system, which expects, by a sort of counter-irritation, that Ireland should grow rich under pauperising treatment. Mr. Butt's suggestions as to the combination of Irishmen for their common salvation, are dictated by the most earnest desire to benefit his country; and if he could succeed in rousing the Irish gentry to energy, and in persuading them to unite, he would do more towards this end than one thousand acts of parliament could effect. Whether he will succeed in this effort or not, he has proved to demonstration that great and fundamental alterations are required in the present poor law.

The letter bears the traces of having been thrown

applicants for relief, protesting that they have not
eaten food for days-protests, to the truth of which
their emaciated forms and hunger-worn aspects
bear too terrible attestation. There are whole
districts in Ireland, in which not one family in a
hundred has once known for months the luxury of
an unstinted meal. Those who visit the country
parts of Ireland periodically,-gentlemen of my
profession, on the circuit, can see the population
dwindling away; the strong and hale, and perhaps
turbulent peasant of a few years ago, is now wasted
to the weak and miserable and half-starved
pauper
that sits, listless and idle, on the flags of the public
streets. The crowds of stalwarth and sturdy men
that used to throng the streets of an assize town,
or fill the court-house, when some trial which inte
rested the populace was going on, are no more
to be seen, or seen wasted and worn, as the com-
ponent parts of a rabble, that seems like a collection
of the dismissed occupants-as, probably, many of
them are of a work-house. The witnesses who
come upon the table apparently do not belong to
the same race that we remember to have seen occu-
pying their place a few years ago.
The very cri-
minals in the dock present a different aspect from
those of former times. Famine-famine, want, and
misery have stamped their visible impress upon the
whole population." Mr. Butt thus truly describes
the pauperizing effect of the present poor-law:-
"The man who a few years ago was a farmer,
with a few acres of land, comfortable and well to
do in the world, is now in many instances a pauper,
receiving out-door relief; pressed down by the bur
then of the poor-rate, he has been unable to main-
tain himself and his family by the cultivation of his
little farm. He abandons it to his landlord, after
a struggle with starvation, that, occupying no land,
he may become destitute according to law. The
land remains uncultivated and untilled; the poor-
rates accumulate upon it, and the landlord is
obliged to pay them, while at the same time he loses
his rent. He must curtail his expenditure, most
probably by dismissing some of his labourers: these
again are thrown upon the poor-rate, and aggra-
vate and increase the evil that is thus perpetually
reproducing itself. As the pauperism of the
country increases, the produce of the land is dimi
nished, and the little fund that in the hands of the
employers of labour constituted at once the chief
support of the labouring population and the capital
of reproductive exertion, is transferred, under the
name of poor-rate, to the expensive sustenance of
the same population as idle paupers; and, produc-
ing nothing in return, it perishes in the transfer.
The rewards of industry are gone; all that stimu
lates exertion in any class is destroyed. The land-
lord looks sullenly on the work of confiscation,
which he has no power to arrest or control. The

farmer who has any substance left, begins to think for a limited period, to a tribunal almost absoonly of emigration, and too often believes himself lute, with the power of making its own decisions Justified if in his flight he can spoil the Egyptian, irreversible. by carrying off the landlord's rent; while for the Until the directions and regulations which the peasant of a little lower class his country presents Commissioners (sections 9, 10) are empowered to no object of ambition but a place in the work- make shall have been promulgated, we grope, in house." And again—" The great and fatal mistake some measure, in the dark-we are thrown on the committed by the framers of the poor-law for Ire-wild ocean of conjecture, as to the real bearings of land, was this,—they legislated as if they had to the measure. deal with isolated instances of occasional distressas if their only object should be to provide temporary relief for those who might happen to fall below the ordinary condition of the people; whereas, in truth and fact, to deal with the destitution of Ireland was, in many of its districts, to deal with a whole population sunk in misery-to provide the means of decent and adequate living for a labouring class that had not enough to eat."

It will be seen that the new Judges are not only to sell, but to divide the proceeds; this necessarily involves all the working of an Equity suit. We do not object to the power being vested in the Commissioners; on the contrary, we think it salutary that the same tribunal should initiate and consummate; but we must be satisfied that the power will be prudently, vigilantly, and properly exercised.

We will give but one other quotation, which is pregnant with matter for serious reflection to the proprietary of Ireland, and which ought to urge them to that union and combined exertion which Mr. Butt so energetically recommends :-" Can you not perceive, in this proposition of a rate in aid, and the perseverance in a system of poor-law taxa-ably, a tendency to render it nugatory, as the first tion unaccompanied by one single measure of general relief and general improvement, that the decree has gone forth from the ministry for your destruction that every measure of social regeneration is to be postponed until you are destroyed and Ireland left a pliant and plastic mould in the

hands of her masters."

The appendix to his pamphlet contains a bold dash at the system of Chancery Receivers. We were glad that the evils of it had not escaped his attention, or the censure of his masterly pen. Whatever may be the judgment of the reader as to the practicability of some of Mr. Butt's suggestions, we are satisfied that he will rise from a perusal of them with the thorough conviction that they have been advanced with the greatest earnestness and sincerest desire of the writer to benefit his suffering countrymen, and to elevate the condition of that country, whose cause he has pleaded with his wonted animation-a cause that we trust he will find not hopeless. Though the body politic may be in spasms, yet her structure and frame are still susceptible of healthy re-animation.

WE give elsewhere an analysis of the Bill for the
Sale of Incumbered Estates. Its fate, as we have
already observed, will depend on so many in-
trinsic and extrinsic causes, that a pronunciamento
upon its efficacy would be as unwise as rash. It
may be, that it will be found "to disturb, yet not
to settle," or it may be found to work with effec-
tiveness and success.
The Court of Chancery had
grown into disrepute; it was said to be both dila-
tory and expensive. Much of this reproach was
undeserved; it arose from the complication of in-
terests with which it had to deal-its desire to do
perfect justice, to embrace every claim and con-
clude every right.

Re-construction and reform would have been judicious. We pause before we pronounce our approval on the wisdom of absolute transfer, even

The proposed bill goes further than its predecessor, which limited applications to the first incumbrancer, or the incumbrancer having possession of the title deeds. By the 16th section of the present measure, any incumbrancer may, within three years from passing of the act, apply for a sale. The limitation in the last act had, unquestionincumbrancer was little disposed to call in a claim which was reasonably secured, and when there was no better outlet for investment. It has often surprised us, that so few mortgages in Ireland contain a power of sale, the exercise of which extrajudicially, would be equally efficacious, and incomparably less expensive. The frequency of judgments, and the infrequency of mortgages, has been the main cause of the multiplicity of Equity suits and their consequence, judicial sales.

The former act (section 28) contained a saving as to the rights of lessees at a rent, subject to whose lease the owner or incumbrancer should be an owner or incumbrancer, as pointed out by Mr. Smythe, in his work on the late measure. This saving would render necessary registry searches, and abstracts of title. The new bill contains no similar saving, but the Commissioners (section 20) are to ascertain the tenancies of occupying tenants and lessees, and the sale shall be made subject thereto.

We presume the intention is, for the Commissioners to take the burden of inquiry, and to let none devolve on the purchaser. The conveyance is to refer to the tenancies, but there is no saving, as we have mentioned.

There is, after all, something unsatisfactory in a purchaser not being shewn, by an abstract, that every requisition is complied with, every link complete.

The purchaser gets his conveyance and a parliamentary title; but if the entire responsibility of that title be thrown on the solicitor for the vendor, and no inquiry be rendered necessary on that of the purchaser, we question whether title will be as satisfactorily deduced as when there is an assurance of a zealous scrutiny on the part of a purchaser, who knows that he purchases at his own risk, and without warranty.*

The analysis of the bill, by an uncontrolable fatality, was not ready for this week's publication.

Court Papers.

Exchequer of Pleas.

Directions for Officer upon the issuing of a renewal of a Habere under the 8 & 9 Vic. c. 111. THE Order for liberty to issue a renewal of an habere, under the 8 & 9 Vic. c. 111, shall be an absolute one in the first instance, but shall contain a direction that the same shall be served, together with a notice annexed, signed by or on behalf of the plaintiff's attorney, with the place of his registered lodgings, specified in the terms, or to the effect following:

"All persons served with this order are to take

notice that the same is an absolute order of the Court, and that if they have any objection to make thereto, which may entitle them to insist that it should be discharged, varied or limited, such objection can only be made within the time therein specified by a special application to the Court, or one of the Barons thereof for that purpose."

And such order shall direct that the said renewal shall not be executed for three weeks after the service of the Order, and the above notice. And the proper officer, who shall sign the said renewal, shall retain the same in his possession, to be handed by him to the plaintiff's attorney, upon the filing of an affidavit of the service of such order and notice, and the expiration of the time in such order mentioned. By the Court.

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99. That for the purpose of transmitting any such recogni zance through the post, the clerk or one of the clerks assistant of the House of Commons, or some other person appointed by the Speaker for that purpose, shall carry such recognizance under a cover directed to the Lord Chief Baron or one of the barons of the Court of Exchequer in Ireland, or to one of the judges of the court of session discharging for the time the powers and duties of the Court of Exchequer in Scotland, as the case may require, to the General Post Office in London, and there deliver the same to the postmast r general for the time being, or to such other person as the said postmaster general shall depute to receive the same (and which deputation such postmaster general is required to make,) who on receipt thereof shall give an acknowledgment in writing of such receipt to the person from whom the same is received, and shall keep a duplicate of such acknowledg. ment, signed by the parties respectively to whom the same is so delivered; and the said postmaster general shall des. patch all such recognizances by the first post or mail after the receipt thereof to the person to whom the same is directed, accompanied with proper directions to the postmaster or deputy postmaster of the town or place to which the same is directed, requiring such postmaster or deputy post. master forthwith to carry such recognizance, and to deliver the same to the person to whom the same is directed, who (or some officer appointed by the court for that purpose,) is hereby required to give to such postmaster or deputy postmaster a memorandum in writing under his hand, acknow. ledging the receipt of every such recognizance, and setting forth the day and hour the same was delivered by such postmaster or deputy postmaster, which memorandum shall also be signed by such postmaster or deputy postmaster, and by him transmitted by the first or second post afterwards to the said postmaster general, or his deputy, at the General Post Office in London.

100. That all monies which shall be received or recovered by reason or in pursuance of the estreating of any such re cognizance shall, after deducting all expenses incurred in respect thereof, be forthwith paid by the proper officer for that purpose into the bank of England, to the account of the Speaker and of the examiner of recognizances, and shall be applied by them, in manner herein-after mentioned, in satis faction, so far as the same will extend, of the costs and expenses intended to be secured by such recognizance.

101. That any person who has entered into any such recognizance may, before the same has been estreated, pay

the sum of money for which he is bound by such recognizance into the bank of England, to the account of the Speaker and the examiner of recognizances; and upon production to the examiner of recognizances of a bank receipt or certificate for the sum so paid in, he shall endorse on the recognizance in respect of which such money has been so paid in a memorandum of such payment, and thereupon such recognizance shall, so far as regards the person by or on whose behalf such money has been so paid, be deemed to be vacated, and shall not afterwards be estreated, but such recognizance shall continue to be in force as regards any other person who has entered into the same.

102. That in every case in which any money is paid into the bank of England to the account of the Speaker and the examiner of recognizances, a bank receipt or certificate of the amount so paid in shall be delivered to the examiner of recognizances by the person paying in the same, and such money shall, and in such order of payment as the examiner of recognizances with the approbation of the Speaker, thinks fit, be applied in satisfaction of all the costs and expenses for securing payment of which such investment was made, or so much thereof as can be thereby satisfied, and thereafter the residue (if any) shall be paid to or transferred to the account of the party by whom or on whose account the same was paid in

103. That if any sheriff or other returning officer shall wilfully delay, neglect, or refuse duly to return any person who ought to be returned to serve in parliament for any county, city, borough, district of burghs, port, or place within Great Britain or Ireland, such person may, in case it have been determined by a select committee appointed in the manner herein-before directed that such person was entitled to have been returned, sue the sheriff or other officer having so wilfully delayed, neglected, or refused duly to make such return at his election, in any of Her Majesty's courts of record at Westminster or Dublin, or in the court of session in Scotland, and shall recover double the damages he has sustained by reason thereof, together with full costs of suit; provided such action be commenced within one year after the commission of the act on which it is grounded, or within six months after the conclusion of any proceedings in the House of Commons relating to such election.

108. That in construing this act words importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular, unless there be something in the subject or the context repugnant to such construction; and the words "oath" and " affidavit" respectively shall mean affirmation in the case of Quakers, or any declaration law fully substituted for an oath in the case of persons allowed by law to make a declaration instead of taking an oath.

109. That this act may be amended or repealed by any act to be passed in this session of parliament.

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add,

the names of all the petitioners, and, if more than one, The condition of this recognizance is, that if [here insert or any of them] shall well and truly pay all costs and expenses in respect of the election petition signed by him [or them] relating to them [here insert the name of the borough, city, or county, which shall become payable by the said petitioner [or petitioners] under the elections petitions act, 1848, to any witness summoned in his [or their] behalf, or to the sitting member, or other party complained of in the said petition, or to any party who may be admitted to defend the same as provided by the said act, then this recognizance to be void, otherwise to be of full force and effect. CAP. XCIX.

An act to further extend the provisions of the act for the inclosure and improvement of commons. [4th September, 1848.]

CAP. C.

104. That this act shall commence and take effect from An act to permit the distillation of spirits from sugar, mothe end of this session of parliament.

105. That if at the close of the present session of parliament there be any election petitions before the house, the order for taking which into consideration has not been discharged, and for tryiag which no committees have been appointed, such election petitions shall, in case the sureties relating thereto have been reported unobjectionable, be tried by committees to be chosen under the provisions of this act, and shall be referred to the general committee of elections before any petition presented in the next session; and the general committee shall, within two days after their first meeting, appoint a day and hour for selecting a committee to try every such petition; and if the present parliament be prorogued after the appointment of a select committee for the trial of any such petition as aforesaid, and before they have reported to the house their determination thereon, such committee shall not be dissolved by such prorogation, but shall be adjourned in manner herein-before provided in the case in which parliament is prorogued after the appointment of a select committee for the trial of an election petition, and before they have reported to the house their determination thereon; and in the case of all such petitions as aforesaid, all such further proceedings shall be had with reference thereto as if this act had been in force when such petitions were presented; and the recognizances entered into in respect of such petitions shall be taken to be and remain in force, and shall take effect for securing payment of all costs and expenses which the petitioners shall be liable to pay, as if the same had been entered into under the provisions of this

act.

106. That no recognizance entered into, or affidavit sworn, under the provisions of this act, shall require to be impressed with any stamp.

107. That in citing this act it shall be sufficient in all cases to use the expression "the election petitions act, 1848."

lasses, and treacle in the United Kingdom.

[4th September, 1848.] CAP. CI.

An act to provide for the expenses of erecting and maintaining lock-up houses on the borders of counties. [4th September, 1848.]

CAP. CII. An act to enlarge the powers of an act empowering the commissioners of her Majesty's woods to form a royal park in Battersea Fields; to facilitate the raising of monies authorized to be raised by the said commissioners for metropolitan improvements; and to regulate and simplify the mode of keeping the accounts of the commissioners of her Majesty's woods. [4th September, 1848.]

CAP. CIII. An act to authorize the application of a sum of money out of the forfeited and unclaimed army prize fund in purchasing the site of the royal military asylum, and in improving such asylum. [4th September, 1848.]

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