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Richard Nagle and others,
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south and west of Ireland, where vast districts are in the hands of nominal proprietors, whose embarrasments, either self-created, or derived from several
generations of improvident forefathers, render them The Incumbered Estates bill has passed its third altogether unable to discharge the duties of property, reading in the House of Commons with only twelve more especially to a people who have always lived dissentievt voices. Whatever may be its effect on on the verge of destitution, and who now, by the the destinies of the country-whether it will be the visitation of Providence, have passed that verge, and means of driving out poverty and desolation and are dying by thousands of famine and plague. introducing capital and wealth, or, like its elder Sensible then of the necessity that property should brother, remain a dead letter on the statute book be transferred, it is not the fact of transfer that we it will soon be the law of the land.
comment on. The bill has certainly many advanIf it does not succeed its failure will not be attri- | tages; and, first, the Commissioners are empowered butable to any complication of machinery, any dif. to sell, and give an indefeasible title; the difficulty ficult or technical processes, obstructing the simpli- of making title to estates, both extra-judicially and city of its operation, at least no obstacle of this kind judicially, was one of the many elements which is created by the bill; unlike its predecessor, the hitherto prevented their free sale, this difficulty the present bill indicates or requires no defined course Legislature now removed by giving the Commisof procedure, it merely hints that the first step shall sioners a power to confer on the purchaser, on his be by application to the Commissioners according payment of the purchase-money, a good title against to forms framed and to be circulated by themselves; all the world, the inducements held out to them are it leaves all other and further processes entirely at twofold, sales will be rendered quick and cheap, aud their discretion, subject to a continuing or disallow the purchaser completely secure in the possession of ing power entrusted to the Irish Privy Council, ex- his purchase. cept in cases where no general rule may happen to The cheapness and quickwess of sale will be an apply, when the Commissioners are given an un. encouragement as well to incumbrancers to sell, as shackled discretionary power. The bill declares the to capitalists to buy ; many incumbrancers—those intention of the Legislature, confers powers on the whose securities possess a low priority—have been Commissioners to enable them to carry out this in- deterred from taking any steps towards the sale of tention, but leaves the details of the machinery en- a property, by the fear that the cost, added to the tirely to themselves.
depreciated value of the estate, would exhaust the Professing ourselves favourable, as we have always tund created by the sale before those charges were been, to every useful measure of law reform, we reached. Those fears, as far as the costs are colla coufess we cannot look with entire satisfaction upon cerued, the legislature has taken much pains to disthe whole of this measure.
It creates a new tribu. pel, as direct provisions are introduced against bal for a limited period with the largest possible them, no tees being allowed to any officer under powers, over the most delicate of all subjects of le- the commission, except a very trifling remuneration gislation-questious of property. No one can be for copying orders; and the Comunissioners are mure serisible than we are of the sad state of the even precluded from making fees payable by any
general rule. This immunity from the payment of tify themselves by taking the initiative in the ruin any office fees we regard as a great boon to the of a property, or taking steps merely with a view owners of incumbered estates, and incumbrancers ; to embarrass other incunibrancers. and as the salaries of the Commissioners, and other On the whole, we see much to admire in this officers, and other expenses of carrying the measure enactment; but we cannot see the absolute neces. into execution, are to be paid out of moneys to be sity there was for the creation of a new tribunal, provided by parliament, the operation of the bill, to effect all that is contemplated by it. Much as if it will be distasteful to proprietors, whom it will has been said of its confiscating tendency, we can deprive of the nominal ownership of estates will not find fault with an enactment which facilitates effect the transfer with as little injustice to them the transfer of property, when the circumstances of as possible applying the whole proceeds of the the country absolutely demand that it should estate, except the absolutely necessary costs, either change hands; and though we lament that a great to the payment of the debts due by it, or, in the amount of property will be forced into the market event of its discharging those) to the use of the at a time when circumstances of an unprecedented owner himself. To the capitalist, the prospect of character have depreciated its value, yet we must being put into immediate possession-in place of give the framers of the measure credit for endeabeing kept many years in suspense, pending the vouring to obviate, to the utmost of their power
, suit, with a chance that in the event of the seller | the ill effects of these unhappy circuinstances. In not being able to make title, that he may be obliged the first place, by giving a good title to the pur. to institute a suit for the recovery of the instalment chaser, the price of the estate will probably be he has paid—will operate as a very considerable much increased ; and in the next place, by dimi. inducement to purchase.
nishing the expense of the sale, the balance appli
. The privileges created by the bill, are only con- cable to the payment of debts, the chance of there ferred on incumbrances created by the owners of being a surplus for the maintenance of the owner, estates of inheritance, or owners entitled to the will be also much increased, by the operation of whole estate in leases in perpetuity, or leases of which two causes proprietors and incumbrancers which not less than 60 years shall be unexpired and will be placed in a much better position than if left incumbered, or under powers created by owners of to the old remedy by Bill in Equity.. But that the such estates. Persons possessed of charges of these remedy by Bill in Equity could not be moulded to descriptions, are empowered by the bill— within suit the altered circumstances of the country and three years after its passing— to apply for a sale of of the tiine, and that it would not be, at the least, the estates affected by these charges; interests in as safe and satisfactory to entrust powers such as remainder are thus respected, and all derivative in those conferred on the Commissioners by the preterests are jealously protected, and, in fact, strength- sent Bill, on the Chancellor-as on men who are that the conveyance from the Commissioners to the The narrator of the proceedings of an equity suit purchaser shall refer to all tenancies, leases, or must record that the preliminary proceedings were under-leases, subject to which the sale is made. in many instances unnecessarily prolix, tedious and
The 37th section will probably put an end to expensive, that the expense of obtaining a decree many suits. It provides that application may be to account was almost the same whether the suit made for a sale, and an order nade by the Coin. were amicable or adverse, that the property undermissioners, notwithstanding any pending proceeding went a wasting process under the dominion of a rein a court of Equity, or any decree of such court ceiver, and we trust it will be in his power to relate made for a sale, and shall, if they see fit, order the that a measure was devised by which tille was made sale of the land or lease decreed to be sold without secure, sales completed without delay, property further inquiry. By this provision much useless handed over uninjured to the new proprietor, and litigation and expense will be put a stop to-even creditors paid with expedition. It will be difficult where the decree for a sale bas been obtained—as, to realize these conceptions; the new measure will, under the new tribunal, complicated and expensive however, go some way towards showing that prosearches to make title to the purchaser, will be perty inay be sold at a more accelerated rate than rendered unnecessary, and, at the same time, the at present. The limited duration of the new tribatitle conferred made more complete and satisfac- nal, the lowness of the salaries of the Commissiontory.
ers, the remuneration being inadequate to secure The 36th section confers a very salutary power men of the first ability, the arbitrary powers conon the Commissioners, and will, we hope, have the ferred upon them, the power of appeal resting with effect of preventing applications to them merely themselves, and, when permitted, being to a tribufor malignant or vexatious purposes. By this sec. nal not calculated to inspire much legal confidence it is enacted, that they shall have full power and the Privy Council, are calculated seriously to imdiscretion as to giving or withholding costs and pair the general effectiveness of the measure. The expenses, and as to the person by whom and the country also is burdened with an increased expense, funds out of which the same shall in the first in when the existing tribunals are amply sufficient to stance or ultimately be paid. The Commissioners, perform all the legal business of the country. It acting under this section, will doubtless take into would have been more inexpensive and as efficacious account the intent with which, and circumstances if the powers conferred by the bill were rested in under which, any application is made ; and will the Court of Chancery. However, we look forward not allow ineumbrancers, who have in no event to this measure as being the pioneer to one of lastany rational hope of realizing their charges, to gra-ling usefulness: by which the Equity courts can berejurisprudence.
after be consolidated, purged of their old excrescen- yearly instalments, to be raised as poor-rate, and ces, and form a concentrated system of enlightened be received by the high constable; and the 7th
section contains the following words--"and the We could not read without a smile the provision several clauses, provisions, powers, authorities in contained in the concluding part of the 38th section the said first recited act, contained with respect to of this bill, prohibiting an incumbrancer, from com- the moneys to be raised and levied under the same, mencing, taking, continuing, or prosecuting any and with respect to any deduction to be made from proceeding whatsoever, under the act of last ses- any rent, in respect of any assessments under the sion “ to facilitate the sale of incumbered estates said act, and also the several provisions and powers in Ireland," without leave of the Commissioners. of the said acts for the more effectual relief of the It reminded us of one of the prohibited degrees, destitute poor in Ireland, with respect to any such within which it is declared that a man “shall not deduction to be made from rent or tithe, shall be
extended and applied to the moneys to be assessed, raised, or levied under the provisions of this act,
and the several words or expressions to which an Tre Legislature, we presume, bas felt that the extended meaning is given in the said first recited owners of tithe rent charge were unequally and act shall include the like significations in this act.” unjustly taxed under the various poor law acts, The new poor law amendment bill contains no that they had exempted them from liability to the provision for the more equitable adjustment of the labour rate act, 9 & 10 Vic. c. 107. However
poor rate in the tithe-owner. Most certainly, in they repented of their leniency, and by the 10 & 11 common justice, the gross inequalities of the pres. Vic. c. 107, have introduced words which impose sure upon them should be removed. the liability.
It is grossly and glaringly unjust, that they alone The first statute, by the 8th section, provided for in the conimunity should be subjected to a double the repayment of advances by half yearly instal. deduction, for å tax which weighs heavily and ments; not less than four, nor more than twenty oppressively. to be presented by the grand juries of the different counties, and levied off the baronies in which the works for which the advances had been made were
23rd February, 1849. executed ; and by the 9th section, enacted that the ANALYSIS OF A BILL TO PROTECT noneys to be raised should be charged and levied
JUSTICES OF THE PEACE IN IREupou the occupiers, and other persons rated under
LAND FROM VEXATIOUS ACTIONS the poor law acts. The applotment, was to be FOR ACTS DONE BY THEM IN THE made, and the money levied by the high constable
EXECUTION OF THEIR OFFICE.* of the barony, and to be recoverable as grand jury Note.--The words printed in italics are proposed to be inCess. The effect of this section was the adoption
serted in the Committee. of the poor law valuation as the basis of levy, and whereas it is expedient to protect justices of the s making the parties liable to payment the occupiers or inmediate lessors.
peace in Ireland in the execution of their duty: be The 12th section allowed the person liable to it enacted, That every action to be brought against pay a rent, to deduct for each pound of rent one- any justice of the peace in any of the superior it half of the amo unt of the levy, irrespective of the courts of law at Dublin, for any act done in the Ss consideration whether the rent were greater or less execution of his duty, and within his jurisdiction than the net annual value; and the 13th section in the declaration it shall be alleged that such act
as such justice, shall be an action on the case ; and empowered any person receiving rent, and also liable to pay a rent, to deduct from the rent paid
was done maliciously, and without reasonable and 'n by him a sum bearing such a proportion to the probable cause; and if at the trial upou the general es amount of such assessinent deducted from the rent issue being pleaded, the plaintiff shall fail to prove
received, as the rent paid bore to the rent received. such allegation, he shall be nonsuit, or a verdict
It was under this clause that any question could shall be given for the defendant. # have been raised as to the liability of the tithe
II. That for any act done by a justice of the die owner; in no portion of the act is he expressly peace in which he has not jurisdiction, or shall have
mentioned, and it was plain, in our judgment, that exceeded his jurisdiction, any person injured there the statute was confined to cases either expressly by, or by any act done under any conviction or included, or to those in which the relation of land- order made or warrant issued by such justice in lord and tenant existed, and that there were no such justice, without making any allegation that
any such matter, may maintain an action against words to charge the tithe owner. The language of the various poor law acts was
the act complained of was done maliciously, and
without reasonable and probable cause: provided clear, and the classification of persous liable to poor rate kept perfectly distinct as to occupier, either upon appeal or upon application to her Ma
that (in any case where a conviction may be quashed landlord, tithe-owner, or annuitant in fee
If then any applotment has been made under this jesty's Court of Queen's Bench) no action shall be act, we think the tithe-owner is not liable; for all brought for any thing done under such conviction
or order until after such conviction or order shall assessments made under the 10th and Ilth Vic. c. 57, we fear that he is.
have been quashed; nor shall any action be brought This later act reinitted one half of the advance,
Prepared and brought in by Sir V. Somerville and Mr. and has made the other repayable by twenty half Attorney General.
for any thing done under any warrant issued by the same by reason of any defect in such conviction such justice to procure the appearance of such or order. party, and which shall have been followed by a VII. That where by this act it is enacted that conviction or order, until after such conviction or action shall be brought, if any action shall be order shall have been so quashed ; or if such last- brought a judge of the court in which it shall be mentioned warrant shall not have been followed by brought, upon application of the defendant, and any such conviction or order, or if it be a warrant upon an affidavit of facts, may set aside the proupon an information for an indictable offence, ceedings with or without costs. nevertheless if a summons were issued previously
VIII. That no action shall be brought against to such warrant, and such summons were served any justice of the peace for any thing done by him upon such person, either personally or by leaving in the execution of his office, unless within sis the same for him at his last or most usual place of calendar months after the act complained of shall abode, and he did not appear according to the have been committed. exigency of such summons, in such case no such IX. That no such action shall be commenced until action shall be maintained against such justice for one calendar month at least after a notice in writing any thing done under such warrant.
of such intended action shall have been delivered Ill. That where a conviction or order shall be to him, or left at his usual place of abode, by the made by one or more justice or justices, and war: party intending to commence such action, or by bis rant of distress or of commitment shall be granted attorney, in which the cause of action, and the thereon by some other justice bona fide and with court in which the same is intended to be brought, out collusion, no action shall be brought against shall be stated ; and upon the back shall be endorsed the justice who so granted such warrant by reason the name and place of abode of the party intends of any defert in such conviction or order, or for any ing to sue, and the name and place of abode or of want of jurisdiction in the justice or justices who business of the attorney if such notice have been made the same, but the action shall be brought served by attorney. against the justice or justices who made such con- X. That in every action brought in any of the viction or order.
superior Courts of Law, the venue shall be laid in IV. That where any poor rate shall be made, the county where the act was committed ; and the and a warrant of distress shall issue against any defendant shall be allowed to plead the general person rated, no action shall be brought against issue, and to give any special matter of defence
, the justice or justices who shall have granted such 'excuse, or justification in evidence, at the trial of warrant for any irregularity in the said rate, or such action. because such person was not liable to be rated ; and XI. That in every case after notice of action so in all cases where a discretionary power shall be given, and before action commenced, sach Justice given to a justice by any act of parliament, no to whom such notice shall be given may tender to action shall be brought by reason of the manner in the party complaining, or to his attorney
, such sum which he shall have exercised his discretion in the as he may think fit as amends for the injury comexecution of any such power.
plained of; and after action commenced, and at any V. And whereas it would render more effective time before issue joined, such defendant, if he the performances of the duties of justices, and give have not made such tender, or in addition to such them protection, if some simple means were devised tender, may pay into court such sum of money as by which the legality of any act to be done by such he may think fit, and which tender and payment of justices might be considered by a court of compe. money into court may afterwards be given in evi. tent jurisdiction, and such justice enabled to per-dence by the defendant at the trial, and if the jury form it without risk of action; be it enacted, that shall be of opinion that the plaintiff is not entitled where a justice or justices of the peace shall refuse to damages beyond the sum so tendered or paid to do any act relating to the duties of his or their into court, or beyond the sum so tendered and paid office, the party requiring such act to be done may into Court, then they shall find for the defendant, apply to her Majesty's Court of Queen's Bench, and the plaintiff shall not elect to be non-suit, and upon an affidavit of the facts, for a rule upon such the sum of money, if any, so paid into court, or justice or justices, and also the party to be affected so much thereof as shall be sufficient to pay or by such act to show cause why such act should not satisfy the defendant's costs in that behalf
, shall be done; and if after service of such rule good thereupon be paid out of court to him, and the cause shall not be shown, the court may make the residue to the plaintiff; or if, where money is so same absolute, with or without payment of costs, paid into court, the plaintiff shall accept the same and the said justice or justices upon being served in satisfaction of his damages, he may obtain from with such rule absolute shall obey the same, and any judge of the court an order that such money shall do the act required; and no action or pro- shall be paid to him, and that the defendant shall ceeding whatsoever shall be prosecuted against pay him his costs to be taxed, and thereupon the such justice or justices for having obeyed such rule, said action shall be determined, and such order und done such act so thereby required.
shall be a bar to any other action for the same VI. That in all cases where a warrant of distress cause. or of commitinent shall be granted by a justice of XII. That if at the trial the plaintiff shall not the peace upon any conviction of order which prove that such action was brought within the time shall have been or shall be confirmed upon appeal, herein-before limited, or that notice was given one 00 Action shall be brought against such justice who crilendar month before action commenced, or if be su granted such warrant för any thiug done under shall not prove the cause of action stated in such