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w the said Commissioners of her Majesty's treasury to be the discharge of such debt or advance as mentioned in any

such certificate marked (B.) in the said schedule annexed 6. And whereas by the 6 & 7 Vic. and 7 & 8 Vic, such to this act ; and such clerk of the peace, on receipt of such certificate as in the said acts mentioned is made evidence notification, shall forth with notify the same in writing to of the facts therein certified :' be it enacted, that from the commissioners of Her Majesty's treasury, and also to and after the passing of this act a certificate given in the the justices of the peace at the petty sessiops for the disform prescribed in the schedule marked (B) to this act an- trict or districts next adjoining the place where such local nered, signed by any three persons professing to be trustees committee, association, or party has been acting as aforeof the funds heretofore belonging to the said corporation in said. and for the county in which any such local committee, asso- 10. That any person not being a trustee, who shall as a ciation, or party acting under the said trustees shall have trustee sign any such certificate as aforesaid, and any such lent such monies or taken any securities, shall be evidence trustee or trustees as aforesaid giving any false certificate in like manner and be of like force as a certificate under the under this act, or not giving notice as aforesaid to the recorporate seal of the said.corporation would have been

under spective clerk of the peace of the payment and discharge the said recited acts or either of them, and it shall not be of any such loan or advance inade to any such local comnecessary to prove that any person signing such certificate mittee, association, or party acting under such trustees, as a trustee shall be a trustee as aforesaid,

shall be liable to forfeit four times the amount of the sum 7. That all trustees of the funds heretofore belonging to specified in such certificate, one half to the informer, and the said corporation who shall give any certificate under the the other half to her Majesty, and to be recovered by action provision herein-before contained shall forthwith after giving of debt, bill, plaint, or information, or by proceedings in a every such certificate convene a meeting of the trustees ac. summary way before any justice or justices of the peace, cording to the bye-laws regulating such meetings, and shall in like manner and subject to like provisions as any penalty, notify to such meeting the issuing of such certificate, and or forfeiture may be recovered under the 6 & 7 Vic. shall transmit to the commissioners of her Majesty's trea- 11. That if any trustee or trustees, or any member or sory a duplicate or copy of such certificate, signed by the members of any local committee or association or party trustees who shall have issued the same, and by the chair- acting under any such trustees as aforesaid, shall proceed man of such meeting ; and the commissioners of her Majes- to recover any moneys lent out by them respectively beyond ty's treasury may from time to time cause a list, description, the amount of the aggregate sum advanced to them by any

or specification of the trustees of the funds heretofore vested such county trustees as aforesaid, and the accumulations by as in the said corporation, and of the associations or loan so- the profits derived from the interest, fines, and charges

cieties or institutions heretofore established in Ireland by or paid thereon by borrowers thereof, and for such purpose in connexion with the said corporation, who shall remain in shall use any certificate or other evidence of connexion with possession of any money heretofore belonging or acruing the said corporation, or any such certificate of a trustee or from the monies belonging to the corporation, and vested in trustees as in this act provided, every such trustee or trus. her Majesty by this act, to be sent to the secretary to the tees or member of a local committee or association or party loan fuud board in Dublin ; and such list, description, or so offending, shall forteit the amount of such demand so specification so sent shall have the same force and effect as sought to be recovered, and shall likewise be subject to the the list, description, or specification which by the said act further penalty of four times the amount of such demand, of the sixth and seventh years of the reign of Her present one half thereof to be paid to the informer, and one half to Majesty was required to be sent by the said Irish reproductive Her Majesty, and such penalty to be recovered in the man. loan fund institution to the said secretary of the loan fund ner herein-before provided as to penalties above mentioned; board in Dublin,

provided that such penalty hereby inflicted shall not exone8. That within three months after the passing of this act rate such party or parties from any penalties he or they may all such trustees as aforesaid in and for any county, and all incur to be paid to the loan fund board in Ireland. such local committees, associations, or other parties acting 12. That it shall be lawful for the said commissioners of under any such trustees, holding securities for any such Her Majesty's treasury, out of the moneys vested in Her funds or moneys lent as aforesaid, except such as shall Majesty by this act, to allow any secretaries or other per. have been lent by the trustees to associations or to parties sons heretofore employed by the said trustees such allowto re-lend, shall and are hereby required to deposit with ance in respect of length of service or other meritorious the clerk of the peace for such respective county duplicate cause, and also to pay to such persons as may be from time lists of all such loans and securities, and the amount then to time employed by or with the sanction of the said comdue thereon respectively, according to the form marked (C.) missioners, in collecting, managing, and applying, or other. in the schedule annexed to this act; and the said trustces, wise in relation to the funds hereby vested in Her Majesty, local associations, or other parties acting under such trus. such salaries or allowances as the said commissioners shall tees as aforesaid, making loans after the passing of this think fit. act, with the sanction of the governors, or of the said com- 13. That after the expiration of three calendar months missioners of Her Majesty's treasury, or with the sanction from and after the passing of this act the said corporation of the parties who may be appointed as aforesaid by the said of the Irish reproductive loan fund institution shall be discommissioners, shall and are hereby required to transinit solved to all intents and purposes whatsoever. to the clerk of the peace, within seven days from the grant. 14. That an annual account showing the receipts and ing of such loans, according to the same form, so far as disbursements under this act shall be made up to and for the same is applicable ; and all such duplicate lists as afore. the 31st of December in every year, and shall be laid before said shall be duly certified by the inspector to such trustees; both houses of Parliament within ten days of their vext sit. and in every case such clerk of the peace is hereby required ting by the lords commissioners of the treasury. to take charge of and retain one of such lists, and to trans- 16. That this act shall be deemed a public act, and shall mit the other of such lists, within two days after the receipt be taken notice of as such in all courts whatsoever. thereof, to the commissioners of Her Majesty's treasury : 16. That this act may be amended or repealed by any provided always, that all loans and moneys to be recovered act to be passed in this session of parliament. in manner herein-before provided shall be included in such lists as aforesaid respectively.

9. That when any such county trustees as aforesaid shall hare advanced any such funds or moneys as aforesaid to any

SCHEDULES to which the foregoing act refers. local committee, association, or party acting under them, for the purpose of re-leuding the same, and shall have re.

SCHEDULE (A.) ceived back from such local committee, association, or party Funds and Property of the Irish Reproductive Loan Fund the moneys so advanced, the said trustees shall, within Institution, exclusively of balances due from the several furty-eight hours after the receipt thereof, notify in writing County Trustees in Ireland. to the clerk of the peace of such county such receipt, and

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Sums originally

Repaid Sums now constituting the fund appropriated for defraying

appropriated. expenses of managemeot.

£ d. £

d. £3,058 59. 60. cash.

To the County of Clare

0 £7,457 9s. 8d. £3 58, per cent. annuities.

5,697 8 933 7 6

Cork 8,028 0 0 1,050 0 PART II.-Other Funds.

Galway 7,065 0 0 £22,893 10s. 5d. £3 per cent. annuities.

Kerry 5,777 6 5 5,572 02 £6,642 6s, 7d. £3 58. per cent. annuities.

Leitriin 2,000 0 0 1,200 0 £500 78. 60 , with accruing interest, secured by bond


6,370 11 9 of Sir Matthew Barrington, Baronet.


9,377 0 9 5,820 18 4 Roscommon 4,500 0 0! 1,788 16 7 Sligo

3,870 0 0 3,893 6 3 scHEDULE (B.)

Tipperary 2,500 0 0 1,841 90 We, the undersigned Trustees for the Funds heretofore

CAP. CXVI. belonging to the Irish Reproductive Loan Fund Institution in County and now vested in the Commissioners of An act for carrying into effect the treaty between her Ma her Majesty's Treasury by an Act [insert the title of this jesty and the Republic of the Equator, for the abolition act.] certify that A. B. of

in County
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[4th September, 1848.]
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The new Act for the abolition of arrest for sums under ten prends Statements of Amounts due on the

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and for the recovery of the possession of small tenements before Justicad

the Peace, with a full Commentary, Index, Notes and Forms, adapted for 184 , by borrowers from the local association at

the professional and trading classes. under the Trustees to the late Irish Reproductive Loan

By WILLIAM GERNON, Esq., Barrister-at-law. Fund Institution in County

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Irish Jurist

No. 34.-Vol. I.
JUNE 23, 1849.


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DUBLIN, JUNE 23, 1849.

of that deed, he was therefore entitled to the same lien upon the fund he was entitled to upon the deed. The Lord Chancellor Cottenham decided

that the assignees of the solicitor were entitled to A case of much practical importance to solicitors payment out of the funds in the cause alone. was recently the subject of adjudication in the In Blunden v. Desart, (Flan. & Kel. 572,) beCourt of Exchequer, in the case of Levinge v. De fore Sir M. O’Loghlen, the lien of the solicitor was Montmorency, (not yet reported.) A petition upheld, under the following facts :-Mr. Maxwell as presented on behalf of the receiver in the was the solicitor of Sir J. Blunden; from the year cause, that the solicitor should deposit certain deeds 1800 till 1805, different title-deeds relating to Sir in his possession in Court, for the purposes of the John's estates came into his possession. In 1812, suit, and to enable the receiver to bring ejectments; costs became due to the solicitor. In 1815, a judg. and was resisted on the part of the solicitor, on the ment was recovered against Sir John Blunden, and ground that if the deeds left his possession his lien further costs were incurred from that period to the was gone, and could not be transferred to any death of Sir John, in 1818. An order having been fund that would be realized in the cause; that made in the cause of Blunden v. Desart, that the even assuming the right to resist production could solicitor of the late Sir John should furnish his not be maintained against the party moving for it, costs, the Master reported under that order, that every other party in the cause would incidentally £1544 178. 10d. was due to the solicitor. On the 27th gain thereby, to the prejudice of the solicitor, as the of June, an order was made-Maxwell, the socharacter of an incumbrance, the result of a contract, licitor, “ not objecting thereto"—that he should does not belong to the lien of a solicitor ; and for lodge in the Master's office all the title-deeds, rethis position the cases of Blunden v. Desart, (2 lating to the lands decreed to be sold, in his power Dru. & Warren, 405,) Taylor v. Gorman, (6 1. E. or possession, and without prejudice to such lien R. 333,) and Bozon v. Bölland, (4 M. & Cr. 354,) as he might establish against the funds in the cause. were cited.

The Master, in allocating the funds, reported the In Bozon v. Bolland, the solicitor had been solicitor's demand to be in priority to creditors discharged by his client, the plaintiff in the cause. whose claims were subsequent to 1812. The as. During the progress of the cause, costs had become signee of the judgment of 1815 objected to this dne to him, as well in that as in other matters in report, and Sir M. O'Loghlen upheld the report of which be had been also employed. The solicitor the Master. This case came by way of appeal produced the deed, through which he sought to before Sir E. Sugden, C. (2, D. & W. Judgment, establish his lien, as evidence in the cause ; he 422,) who reversed the order of the Master of the subsequently became bankrupt; and his assignee Rolls as far as regarded the costs incurred subsepresented a petition claiming a lien on the fund in quently to the judgment of 1815. be cause, for the benefit of which the deed was in The next case relied upon as unfavourable to Court, for the entire of the costs incurred in the the lien of a solicitor who has parted with the posause and otherwise, and contended, that as the session of his client's papers, is that of. Taylor v. itle to the fund was established by the production | Gorman, (6 Ir. Eq. Rep. 330,) before Mr. Black

burne, M. R., the present Lord Chief Justice. In is one upon which no difficulty can arise. The that case, the solicitor of the defendant, in 1819, rule is settled beyond question, that if a client dis. obtained possession of several deeds relating to the charges his solicitor, the court will not take the estates of the defendants, and on which he claimed papers from the latter, unless upon payment of his a lien. These deeds he brought into Court, under bill. To travel through the infinity of decisions on an order in the cause, the lodgment to be without this subject, or reconcile them, would not be perprejudice to such lien as he had thereon.. There haps, possible, and the attempt would be beyond was a mortgage of 1777 on the lands which these the limits of our present enquiry ; but it will be papers related to, and claims on behalf of younger found on examination to be generally true, that in children, prior to 1819. Subject to these prior every case where the court has denied the solicitor's demands the Master found that the solicitor had claim upon the fund, it was either on the ground a lien on the papers in Court, and that he was that no lien existed, or there were circumstances entitled to be paid in priority the portion of the amounting to a waiver of it. several costs incurred by him prior to the ren- The solicitor having obtained possession of the dition of certain judgments affecting the estate of deeds, has a right to retain them, and it would cer. the defendant.

tainly appear to be contrary to the principles of The suit was instituted to carry into effect the justice, which first gave that right, that the court, trusts of a deed by which the defendant conveyed by ordering the production of the deeds, should certain estates to trustees for the payment of his deprive him of it, if it be unaffected by any infirdebts, to which deed the solicitor was a party. In mity. And, as we heard Mr. Baron Richards obhis judgment, (p. 333,) the Master of the Rolls serve, in the case which led us to these obserye. says—“The solicitor having parted with the deed, tions, it would be monstrous to say, that if a soli. it is argued that his right is transferred to the fund, citor have a lien against a subsequent creditor, and that, the estate being sold and the prior mort- that a prior creditor should be deprived of the gagee paid, be is, in place of the lien he has lost, means of getting at the deeds for the purposes of to be paid out of the surplus of the funds realized his suit; and that if the court had not the power by the sale.". He then goes on--" This claim is at of getting possession of the deeds, and of preserv. variance with the nature of the right which the lien ing the rights of the solicitors in their integrity

, on the deed confers, and is repudiated by Lord that the whole cause should be paralyzed. Cottenham in Bozon v. Bolland. “ The solicitor's The solicitor for the defendant, Montmorency, claim on the fund,” he observes, “ has been called resisted the application for the production of the transferring the lien from the document to the fund deeds; his counsel citing the cases referred to, to recovered by its production; but there is no shew the prejudicial effect the production would transfer, for the lien on the deed remains as before, have upon his rights, and relied upon his right to although perhaps of no .value; and whereas the retain possession till paid. lien on the deed could never have been actually The court held there was a marked distinction enforced, the lien on the fund, if established, would between those cases where the solicitor voluntarily give a title to payment out of it.” The solicitor, produces the deed, and where the court makes the to get rid of the difficulties those arguments create, order in invitum. Mr. Baron Pennefather, observ. has endeavoured to found his right on the decree or ing on the case of Taylor v. Gorman, said, that order, as amounting to a recognition of a right to though the observations of the Master of the Rolls be paid out of the fund, but they have no effect save went to the length of the proposition they were that of preserving his right, if right he had, to get cited to maintain, that the Lord Chancellor had back the deed, and cannot be argued to have altered upheld that decision on a different ground_holdthe nature and character of that right, substituting ing that the solicitor, by executing the deed of 1824, for it actual payment of his demand.” This deci- had waived his lien; but that he could not be unsion was confirmed on appeal by Sir E. Sugden, C.derstood as deciding that, if the order was in in(7 Ir. Eq. Rep. 259.)

vitum, the court could not protect the interest of These cases have been generally considered by the solicitor. the profession as authorities for the position that The court directed the deeds to be brought in by parting with the possession of the deeds, even without prejudice to the attorney's lien, if any be under the order of the court, the solicitor in every have, or against the puisne creditors making a case virtually lost his lien upon the deeds in his special reservation as to the rights of the attorneypossession, inasmuch as, according to the view taken Mr. Baron Pennefather concluding by saying that by the Master of the Rolls in Taylor v. Gorman, he by no means thought such a reservation necesthat lien was not transferred to the fund ; and the sary, as in his opinion the ordinary order to bring possessiou being parted with, the lien which it was in the deeds without prejudice would be sufficient. admitted by the court still attached to the papers, The case of Bozon v. Bolland which was relied became valueless, though being one which, if the upon by the Master of the Rolls in his judgment analogy between this and other instances of lien in Taylor v. Gorman, was also, it was observed by be correct, would revive upon re-possession. Hart- the court, within this principle, the solicitor baring ley v. Hitchcock, (8 Taunt. 149.)

voluntarily produced the deed. Lord Cottenham, The doctrine upon which the lien of a solicitor in that case, held that the solicitor having produced on the papers of his client, which have properly the deed voluntarily, was entitled to be paid the coine to his possession rests, is founded upon the costs in that suit alone in which it was produced

, plainest principles of justice, and, in the abstract, and that by the production he disentitled himself

to that lien for his general balance which he pre- rights accorded to the solicitor for his protectionviously had.

the injustice of depriving him of that right we have Worrall v. Johnson, (2 Jac. & W. 214), before already adverted to. The proper course for every Sir Thomas Plumer, M. R., was observed upon solicitor whose lien is sought to be interfered with, by Lord Cottenham in. Bozon v. Bolland, and he will be, to dissent to the production of the deedappeared to doubt its authority as to the question to act on his strict right of retainer-and in this whether the solicitor was entitled to be paid his manner compel the parties requiring the benefit of general balance, or merely those arising in the suit the papers, either to purchase that benefit by the in which the fund was realized. But there appears settlement of the whole costs due, or by driving them to be this plain distinction between the two cases to the necessity of an application to the court to in the latter the voluntary production having de compel their production, obtain, as in this case, a stroyed the general lien, the particular one on the full protection—a course recommended by Sir E. funds in the cause only remained. The Chancel- Sugden in Taylor v. Gorman, who, after adverting lor, p. 357, says, “It appears to me, that in these to the hardship inflicted upon the solicitor in the observations, (referring to those of Sir T. Plumer case before him, adds, “that he should be cautious in Worrall v. Johnson), the distinction between the never to enter into such an arrangement as existed solicitor's lien upon the fund realised in the cause, there—that his course should be to call upon the and his lien upon, or rather right to retain his court to decide the question of lien.” client's papers in his hands, as solicitor, is not sufficiently kept in view. The lien upon the fund realized in the suit is confined to the costs of that suit, Lann v. Church, (4 Madd. 391,) although

To the Editor of the Irish Jurist. that seemed to be doubted in Worrall v. Johnson.” Mr. Editor—Whoever has read the recent deThese observations of the Lord Chancellor appear bates in the House of Commons, on the subject of to have been made without attentively considering the sale of incumbered estates in Ireland, cannot the report of Worrall v. Johnson, which appears to but be struck with the feeling of discontent exus to confirm, rather than clash with the opinion of hibited, that so little has been done to diminish the Lord Cottenham-the lien being upon the papers, delay and expense of the procedure in the Court of which, it is clear from the judgment of the court, Chancery. To describe the Court of Chancery as the solicitor bad never lost possession of. At p. 218, an unwieldy engine, costly in its working, and Sir T. Plumer adverts to the distinction which Lord tardy in its movements, seemed to be the am. Cottenham thought to be not sufficiently attended bition of every member who addressed the house, to. “ There are two kinds of lien that a solicitor while the annals of bygone litigation have been has for a bill of costs-one on the fund recovered, ransacked for the purpose of amusing the house and the other on the papers in his hands;" and at with the story of some unhappy purchaser under p. 219_“ It is of no consequence there is a com- that court, who afterwards finds himself embarked promise here—the fund cannot be transferred without in a sea of litigation, and shipwrecked in the an application to the court; and the other parties end. In this state of feeling, the project for would then object, unless the deed be given back taking the sale of incumbered estates from the to them; and it cannot be got at, except from the Court of Chancery, and entrusting it to governsolicitor. The plaintiff's assignee can therefore ment commissioners, was introduced into the never succeed, without applying for the possession house, and passed almost without opposition. Now, of it;"—evidently shewing the demand of the soli- while I freely admit that greater facilities should citor was on account of the general lien on the be given for the transfer of land, and that alpapers, which, being in his possession, in the lan- though a good deal has of late been effected, yet guage of Lord Cottenham in Bozon v. Bolland, that many improvements might still be made in our " he had a right to withhold, and, if essential to judicial proceedings, I would altogether deprecate the client, might, by those means, compel payment the systein of modern legislation, which, in the of bis general professional demand." This propo- rage for novelty, endeavours to discover some new sition must, however, be taken with this qualification, machinery for the working of each specific case, that no person has a title to the papers superior to rather than improve the old, which is so well that of the client. lu Molesworth v. Robins, (2 Joo. ' adapted for all. & Lat. 358), Sir E. Sugden in his judgment, p. 370, The Court of Chancery has been in existence for after saying “that a solicitor to enforce his lien, centuries ; the excellencies of its system, and the can only withhold the deed, so as to prevent the impediments to its working, are now well underparty entitled having the benefit of them,” goes on stood. Some of the greatest men that ever lived " but no man can give a lien to a solicitor of a have left upon it the impress of their characters; higher nature than the interest he himself has in and surely it would be much wiser to remove whatthe deed. The client had no right to charge the ever has been found to clog the working of this deed whieh did not belong to him alone, but to wondrous machine, than to substitute for it the weak bimself in common with others, and which he could inventions of modern theorists, whose patch-work not withhold from the class of persons entitled to devices, if found to work at all, would require much them."

time to be understood, and a long series of judicial These authorities go far to support the view of decisions to consolidate, before they could be rethe Court of Exchequer in Levinge v. De Mont- duced into a system of practice. inorenry. They shew the very high nature of the Now, to apply these observations to the object

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