period, and must abstract all the memorials of the deeds which relate to those particular lands. Now that is a very tedious and a very expensive process, and it very often leads to mistakes, because of course clerks cannot be perfectly accurate in going over those books; and you cannot be sure that there may not be some omission or some mistake in the names of the lands. I think therefore that the registry ought to be altered, which I think might be very easily done. estate or interest (that is with reference to what shall mention presently), for the purpose of giving notice to the parties when a sale is about to take place. I would make it incumbent upon every party claiming an estate or interest to register it in this form, and to insert his residence, where any notice would be transmitted to him; and in the case of change of residence, it would be his duty to That would constitute what I would register it. call the registry of title. The memorials might be 9821. Will you describe the alteration which registered as at present, and if a party wished for would be necessary?-When the Commissioners any fuller information than that short registry of were inquiring into registry in England, one great title would give him, he might get a copy of the difficulty which presented itself was the non-exist- memorial as at present; but I think that for general ence of any general survey. We have in Ireland purposes that registry of title would be sufficient. an Ordnance Survey, which is quite perfect, and In addition to that registry of title, I would havewhich could be made the basis of this registry. I what I would call a registry of encumbrances, and would therefore propose that the Ordnance Survey I would arrange in precisely the same way: name should be incorporated into the registry; that on of townland, name of party entitled to the encumone side of the page should be introduced a map of brance, description of the part of the lands charged the particular townland against which you were with encumbrance, the nature of the encumbrance, about to register the deeds, and on the opposite its date, and by whom created, and the registered side a registry of title, with the names of all parties residence of the encumbrancer. You would then claiming any estate or interest in the lands. I have have upon one page the names of all the parties just drawn out a short form of the way in which I who claimed any estate or interest in the lands; you think it ought to be done: I would have the would have on the next page the names of all the Ordnance Survey delineated, and then, under the parties who claimed any encumbrance against the head of "Registry of title," I would have first a lands; and then instead of a long and expensive column for the townland; then the name of the search through all the books, and the very expensive party having an estate or interest; then a descrip- stamp duties and fees upon all those searches, I tion of the part of the lands in which the estate or would give to every party requiring a search, interest is claimed, because it might not extend to simply an attested copy of those pages of the book the entire townland; then the nature of the estate relating to those particular lands; on payment, of or interest, and under what deed or instrument course, of a very small fee. derived. I would then have another column for the registered residence of the party having the [The Witness delivered in the following Paper.] to search the books of all those courts. An Act introduced by Sir Edward Sugden made a great improvement in that respect, for it rendered it necessary that all the judgments, in order to affect the land, should be registered in one office; it put the three offices in fact into one, and thereby simplified the search very much. But, in addition to that, I conceive that a judgment, in order to form a charge upon lands, should be registered against the particular lands which are sought to be charged thereby. Now if a judgment is obtained against a party, it affects all the estates which he has. 9831. In which way is that; is it a judgment against the person which involves a judgment against all his property, or is all his property named, or is it stated in general terms, so that all his property then held, and thereafter to be held, is involved in it?—There is no property named at all in a judgment; a judgment merely is, that A. B. has recovered a judgment for £1,000 against C. D.; that is registered in the office, and by virtue of that, all the property which C. D. had at the time of the entering of that judgment, is affected by it. ing to the principle which I would reccommend, while I would impose upon judgment creditors the onus of registering their judgments against the particular lands, I would also give them what they do not now possess, namely, the benefits of registra tion; that is, that their judgments should have the same benefit from the Registry Act as deeds now have. 9837. As a mortgage now has ?-As a mortgage now has. The effect of judgments not possessing that advantage now, is in fact to render them a very uncertain security; for instance, this case has occurred and is reported: a man deposits his titledeeds as an equitable mortgage, with a party who has advanced him money; he then goes to another and borrows money from him on the security of a judgment; and although that judgment creditor knew nothing whatever of the existence of the mortgage, or of the deposit of the title-deeds, his judgment is postponed to the equitable mortgage. Now that would not be the case if the system of registration which I have suggested, extended to judgments. 9838. Do you think it advisable that judgments 9832. Then if your suggestion were adopted should continue to be a charge upon land?[ with regard to the judgment attaching to a specific think it was a step in the wrong direction to make property, and to that only, would it not leave the judgments a charge upon land; it was done by the waste lands now in the hands of proprietors, at Act of 3 and 4 of the Queen, cap. 105; but at the liberty to be more easily disposed of, in order that same time, now that that has been done I think it they might be more frequently brought into culti-would be very difficult to retrace our steps in that vation? Unquestionably; because the judgment creditor would not think it worth his while to register his judgment against lands of no value. 9833. Against waste lands? Against waste lands. 9835. Therefore waste lands would be practically, by your suggestion, free from encumbrances? They would; and it would also have this very beneficial effect, that it would define the estate upon which the judgment was a charge; for instance, if I obtained a judgment against a man of large estates, I would not be unreasonable enough to register it against every one of his estates. would be quite satisfied with registering it against one which was sufficient security. I respect. LA (To be continued.) NEW LAW BOOKS, Lately published by EDWARD J. MILLIKEN, 15, COLLEGE GREEN, Just published, price 38., by post 3s, 6d, AW OF DEBTOR AND CREDITOR IN IRELAND. and for the recovery of the possession of small tenements before Justices of The new Act for the abolition of arrest for sums under ten pranda, the Peace, with a full Commentary, Index, Notes and Forms, adapted for the professional and trading classes, By WILLIAM GERNON, Esq., Barrister-at-law. "The concise and lucid style in which the subject of this work is treated cannot fail to render it clear and intelligible to the most limited capacity. *** We can confidently recommend it to the patronage of the profession, and the public at large."- Freeman's Journal. "The value of this Treatise is much enhanced by the forms appended, and the whole is a very good available summary which will be found alike useful to the Lawyer, the Magistrate, the Proprietor of landed property, and the Trader."-Dublin Evening Mail. 12mo. Second Edition, Price 2s. 6d.-by post, 35. 9836. Would an alteration in the law as to registering judgments, injure their value as a security-No; I think it would very much raise their value as a security, because the state of the Act to facilitate the Sale of Incumbered Estates in Ireland, with a Copious Index and Direction for proceeding (under the provisions of the Act,) for the Sale of Lands subject to Incumbrances. By W. M. M'CAY, Esq., Solicitor, "This book should be in the hands of every one interested in Irish estates, or the securities affecting them."-Dublin Evening Mail. All communications for the IRISH JURIST are to be left, addressed law now with respect to judgments is very anomalous; although they require to be registered, in fact they have not the benefits of registra tion. As between deeds, the Registry Act of Anne gives a priority to the deed registered first, over the deed registered afterwards; and if a deed is executed and not registered, and then a subsequent deed is executed and registered, the subsequent deed takes priority over the first deed, unless the party having the subsequent registered deed had notice of the prior unregistered one; then he cannot take advantage of the subsequent registered in Dublin, or its being forwarded to the Country, by Post, on the day of deed. Unless there be a conflict between deeds, judgments are not assisted at all by the Registry Act; so that if a man executes a mortgage, and that mortgage is not registered, and then immediately afterwards confesses a judgment, still the mortgage has priority over the judgment: accord to the Editor, with the Publisher, F. J MILLIKEN, 15, COLLEGE Communications nor will the Editor be accountable for the return of Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 178. Quarterly, 98. Printed by THOMAS ISA AC WHITE, at his Printing Office, Na, FLEET STREET, in the Parish of St Andrew, and published at 15 COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County the City of Dublin. Saturday, August 4, 1849, Erish Jurist No. 41.-VOL. I. AUGUST 11, 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: PUBLIC attention has been so prominently called within the last six months to the whole receiver system that we have no doubt whatsoever that a thorough reform in the abuses which have grown with the growth of receivers must take place. If we were told that 500 attorneys were receivers --and we have been told that the number is nearly, if not quite as great-and were asked our opinion whether those gentlemen were the best qualified to be receivers, and whether estates would be as well managed by them as by resident trained agents, we should answer in the negative. If, again, the question were put, would you exclude attorneys from being receivers? Assuming that trained resident agents were procurable, we should answer in the affirmative. In those two questions and answers lie much of the principle on which a change should be worked out. At present we cannot have men whose sole business is to manage the estates under their care; and the office is so full of peril, and so undesirable that few men, unacquainted with the practice of the Court of Chancery, will venture to undertake it. It is universally conceded that were properties to remain under receivers to their present extent, or an approximation of that extent, the public good demands a better management of those properties, than, to use the language of a receiver, "that most vicious of vicious systems which plunders the landlord, demoralises the tenant, and victimizes the really efficient and conscientious receiver." Two millions of rental under that system, a seventh of the rental of the whole island, and probably an eighth of the population! The Law Society, whose suggestions to the late committee, are deserving of the utmost attention, as they come from practical men, deprecate a change, and look forward to a rapid transfer of property, (and, consequently, removal of it from our Equity courts), under the Encumbered Estates Act, which is now the law of the land. It would have been exceedingly desirable that Lord John Russell should have announced the names of the Commissioners; on their character and competency the fate of that measure will greatly depend. If those gentlemen do not possess the confidence of the country and of the law professions their usefulness will be materially impaired, and the operations of the act greatly limited. We trust for the sake of this country that these appointments will be made from none other than the purest motives.* We quite admit that the first and primary consideration is to free land from its encumbered thraldom, but we are not so sanguine as to suppose that the present enormous amount of property in and out of court can rapidly change hands, that purchasers can be found ready to invest their forty or fifty millions; and the fact must not be overlooked with reference to the property under our courts of Equity that much of it is there which it would not be expe dient, and much which it would not be possible to sell. The total repeal of the power of appointing receivers under the judgment acts would have prospectively diminished the amount brought in for now sale, (if we may use the expression,) but the very limited nature of that repeal will create no sensible future diminution of the rental under our courts of Equity, though the scandal of having receivers over miserable incomes of £5 per annum will be avoided. Irrespective of the future prospect of a steady influx into court, we cannot disregard the fact that there is an enormous mass of property which is now locked up under the judgment acts, and that for the lives of many of the present generation of proprietors. This was written before the Commissioners had been appointed. There has been no classification of receivers in matters and causes, but there can be no doubt that the number of the former largely preponderates, more especially when the estates of minors and lunatics are thrown into the scale, and the sojourn of those estates will be for no brief period. It may still be predicated that it is much easier to get into the Court of Chancery than it is to get out of it. We cannot, therefore, reasonably expect that there will be such a sensible reduction of property under courts of Equity, from the sale of present incumbered estates, and the non-introduction of new ones as to render an improvement in the receiver system on that ground unnecessary. That gradually one-half of the present two millions may be withdrawn, we believe probable; but the utmost buoyancy of hope and confidence in the revived energies of the country, does not enable us to look forward to the time when much less than a million a-year of income will be under receivers. We cannot believe that a much less expensive mode of managing that vast amount of property, than the present cannot be devised. Another reason against a change, which was not so clearly expressed, was the laudable objection to a system by which extensive patronage and jobbing might be introduced. The misfortune of this country being that every office is almost always jobbed; at present to use the language of one of Sir James Graham's questions to Sir Edward Sugden-" the multiplication of receivers produces many little jobs; but the concentration of them would produce great jobs." We should be reluctant to give power where there is not a rational expectation of its being worthily used; and we should prefer a small present evil, to increased government patronage; but we cannot, for an apprehension of this sort, allow a gigantic evil to remain unredressed; and we should take care that whoever are to be the dispensers of patronage should be obliged to exercise it under responsibility, and the broad eye of public opinion. The Law Society states one of the excellences of the present mode of management to be, that each estate pays its own expenses; and certainly that is an excellence; but it might be added that it very often pays nothing else. The carrying out of this principle is so costly that small estates are absorbed in the expenses of management. We find on looking at the language used by the Law Society that we did not express ourselves with half the clearness they have done on the point of each estate supporting itself. We had better give their own words: "The present system secures the important principle of making each state defray its own expenses of management, and no more!" What an important admission from men best capable of forming a deliberate judgment ! That respectable and useful body will excuse us if we mingle a little playfulness (a characteristic of our Irish nature) with the discussion of a serious question, it would be well if it had been discussed calmly at all times and on all occasions. We cannot allow ourselves to be too much influenced by the suggestions of the Society; it is impossible for human nature to be altogether disinterested, and, to some extent, the Law Society must be looked upon as interested parties. Many of their body are receivers; whilst the present system lasts it would be impossible and impolitic (as we have shewn in our last number) to introduce an absolute rule of disqualification. Under the present system solicitors who would not accept the appointment of receiver have more or less of patronage in the nomi nation to the office, and more especially to the lucra tive one of solicitor for the receiver. There is as much of gangrene in that department as in any other branch of the whole system; and if that post were abolished or rendered undesirable, much of the stimulus to throw properties into the Court of Chancery, and to keep them there, would be removed. We impute no improper motives, we merely look to those which must more or less animate human nature, and sway human judgment. The document to which we have adverted contains hints that go a great way towards amelioration, but they do not go far enough; when the wound is severe the surgeon's knife must go deep to effect a cure. To adopt the idea of Sir Robert Peel, let us take hope from the magnitude of the evil, its impor tance, its hold on public opinion has brought it to that point, that it can no longer be disregarded. IN the case of Kinnersley v. Knott, (13 Jur. 658, C.P.) the question arising on the 12th section of the 3 & 4 W. 4, c. 42, Eng., the 41st sect. of the 3 & 4 Vic. c. 105, Ir., was raised and determined whether in actions upon written instruments the description by an initial letter only, without any averment of an excuse for not setting it forth fully, is a good cause of demurrer. The action was by the indorsee against the acceptor. The declaration stated that the plaintiff complained of John M. Knott, the acceptor's name, &c. The causes of demurrer assigned were that the Christian name of the defendant was not fully stated; that he was described with the initial letter " M." for his Chris tian name, which should have been in full, or a sufficient excuse for the omission. The court relying on the cases of Nash v. Collins, (17 Law Jou. N. S. C. P. 91, S. C. 5 C. B., 177,) and Miller v. Hay, (12 Jur. 985, Ex.) held that the demurrer was good. Maule, J., in his judgment, says, "I think that the statute which enables an amendment of the declaration to be made on summons, in lieu of a plea of abatement for misnomer, assumes, that when the court sees letters put as initials, and which cannot be sounded by themselves, it will treat them as initials. The cases which have been decided have recognised that principle, namely, they have decided that the party pleading must particularize the name of the person described in such pleading, or give some reasou for not so doing. Where the initial is a vowel, the courts have, I think, rightly been astute to understand it as the Christian name; but when the initial letter is a consonant, it must, I think, be understood as an initial only of the Christian name." The great practical importance of this case, arising from the great uncertainty in which the law upon this subject has been thrown, has induced us to bring the attention of the profession to it at the earliest moment. For ourselves we do not, in this respect, clearly see the soundness of the distinction between vowels and consonants. The letter «M." sounds in our ears as like a surname as A. or I. when standing alone; it is in the combination of let est an ru only that vowels have a particular efficacy. Howthis case and Lomax v. Landells, (18 L. Jour. S. 88, C. P.) where the initial letter was "I.,” ablished the distinction. We believe that the Courts of Queen's Bench d Exchequer in this country have taken different views of the question. The cases have not been reported, but there is a received impression among the profession, that under circumstances similar to these in the case stated, the former court overed, the latter allowed, the demurrer. We hope this case, in the decision of which the court appears to have adopted the view taken in the majority of the previous cases, will be adopted by the courts in this country. In questions of this nature, almost purely practical, it is much more important that the law should be settled, than that the conclusion arrived at should be the true one. If this be done, the rule will be plain. If there be no Christian name whatever fully stated, and no excuse for the omission, whether the letter be vowel or consonant, the declaration will be demurrable. Appleman v. Blanche, (14 M. & W. 155); Turner v. Fitt, (3 C. B. 701); Esdaile v. M'Clean, (15 M. & W, 277); Levy v. Wilkes, and Gatty v. Webb, (9 Q. B. 427, 431) If the defendant have two Christian names, the first of which be fully set out, the second by the initial letter alone, and that letter be a vowel, the court, to use the language of Maule, J., "will be astrite to understand it as the Christian name." Lomax v. Landells, (18 Law Jour. N. S. C. P. 88.) But if the letter before the surname be a consonant, the declaration will be bad on demurrer. Kinnersley v. Knott, (13 Jur. 658); Nosh v. Collier, (17 Law. Jour. N. S. C. P. 91); Miller v. Hay, (12 Jur. 985.) The only other question that could be raised would be whether this rule applies as well to parties named in the record, but not parties to the suit. This, we think, must necessarily follow the same rule; before the statute the rule of law required the names of such persons to be fully given, or an excuse for the omission (Plow. 128; Stephen on Pleading, 1 Ed. 320)-and the statute raises no ground for the distinction. The words are, that in all actions upon bills of exchange or promissory notes, or other written instruments, any of the parties to which are designated by the initial letter, or letters, or some contraction of the Christian name, it shall be sufficient so to designate them." THE Right Honorable John Richards, Third Baron of Her Majesty's Court of Exchequer; Montifort Longfield, Esq., Q.C., LL.D.; and C.J. Hargreave, Esq Barrister-at-law, 65, Chancery-lane, have been appointed the Commissioners for the sale of encumbered estates in Ireland. HOUSE OF COMMONS. POOR LAW COMMITTEE. James A. Lawson, Esq.-May 18. 9843. Sir J. Graham] Any search, however diligent, does not necessarily exhaust all encumbrances which may exist in Ireland?—No, but then a purchaser will take discharged of encumbrances which are not registered. 9844. Mr. Napier.] By registering his deed ?— By registering his deed. A judgment creditor is not a purchaser. 9846. Can you suggest any remedy for the present uncertainty of a good title to the purchaser?I think that where a party purchases under the court, and where notice is given to all the persons who appear upon the registry, the form of which I have suggested, that purchaser paying his purchase money into court should get a parliamentary title. 9847. How do you think the purchase-money ought to be disposed of?—I think, of course, that in sales under the court it should be paid into the Court of Chancery; then all the encumbrancers and the owners who claimed to be entitled to any portion of that purchase-money should get it out of court; but the purchaser should have nothing to do with that; he ought, the moment he pays his purchase-money, to get a good parliamentary title. 9890. Is it your opinion that the alterations which you have suggested, and which Dr. Longfield has suggested, or alterations in that direction, are calculated to give great relief to proprietors in many cases, and to place all classes depending upon the land in a more independent, and comfortable, and safe position than they are at present?—I think they are; they must inevitably have that tendency. There was one suggestion which Dr. Longfield made-namely, that of preventing parties from creating encumbrances; I do not acquiesce in that; I do not think it would be practicable to prevent parties from creating encumbrances, because, although you may prevent them by law from making a second mortgage, they may create annuities, rentcharges, and various other encumbrances, therefore I think that it would be found impracticable; but what I have suggested would give them increased facilities for selling portions of their estates; and consequently, as parties will always act for their own interest, if it were for their own interest to sell portions of their estates in order to raise the money, rather than to create encumbrances, the effect must be to diminish the number of encumbrances created. 9892. Then you would give him the greatest possible facility of borrowing money, or lending money, or buying estates, or selling estates?—I certainly would; it may be very desirable for a party to purchase an estate, and it may be very desirable for a party to raise money for the purpose of improving that estate; I do not see why he should be prevented from doing that; I think as he has the power of selling, he ought to have all the lesser powers of charging and encumbering. |