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is very desirable, in my opinion, that the law of 447. And you object to extending to England a Ireland should be altered in this respect ; it might, practice which does not now exist here ? –Yes. perhaps
, be considered a strong measure to take 448. The practice being established in Ireland, sway receivers upon petitions altogether; but I through a priori, you may not consider it a desirshould have no hesitation, if I had the power, in able practice, would you leave it untouched ?very much limiting the operation of the Sheriffs' Certainly; I think it would revolt the whole feeling Act and the subsequent Acts, and in placing judg- of Ireland, which ought to be kept studiously in ments in Ireland more upon the footing on which view and held sacred, as far as it is possible to do they stand in England; for example, if I had the so; I would do nothing to outrage the feeling of power, I should not hesitate to limit the amount of the people of Ireland in that respect, for I am sure money for which a judgment should bind the such a change would create universal alarm in the
as to give a right to a receiver country. When a suit is instituted to sell an estate under those Acts; that is, I would take some which is encumbered, by a judgment creditor or reasonable sum as a proper subject for a judgment mortgagee, they have a habit of making every and receiver, considering the expense attending such person a party to the suit who is a necessary party a proceeding; but as regards smaller sums, 1 to the conveyance; that is not the case here in would leave the creditor to his common law re- England ; you bring the parties who have the title medies
, and to that credit upon which he no doubt into court, and you do not bring other parties into relied when he furnished the matters in his trade. court; you have them ready to join in the conveyIf that lipe were drawn, and another provision ance, but you keep them out of the suit, and when were introduced into the law, that no judgment the purchaser is entitled to a conveyance, those creditor should have a receiver until after a certain parties come forward and execute it. I will menperiod from the time of his obtaining judgment, I tion the case of a lady in this country who was with think the evil would be very much struck at, without a medical man under restraint: she died ; she was alarming, which one would be very unwilling to do, entitled to a rent-charge upon several estates in the people in Ireland at the change in a law which Ireland, and there were three years' arrears ; this they seem to be very much attached to.
medical gentleman (I have no fault to find with 439. Would you limit the period to a year ? him) took out an administration to this lady, wbo should say that that was a very fit period; it gives a had been his patient; he filed a bill in Ireland to man a little time to look round him, and to provide make good his charge; there were only three years' for the payment of small demands, or even of larger arrears of rent-charge to collect, and the charge for demands; for it is to be recollected that this system searches preparatory to filing the bill in order to of a receiver on petition is a great boon to the ascertain the proper parties to the suit was £720; creditor; it is beyond what the old law gives him; I disallowed a great portion of it, but it was done it is a pure creature of statute; and therefore, if under great advice ; under the new rules that abuse there are evils attending it, they may be, of course, could not occur again, because now solicitors in remedied or altered by statute.
Ireland are paid, which they very much complained 440. If the line were drawn as you propose, with of, according to their labour; I do not know what
regard to the amount, would a judgment below a such a case might cost now, but I should imagine a a certain amount affect the realty ? -Yes.
that £20 or £30 would be the payment. I state 441. But the remedy of a receiver would not this to show what great expenses have heretofore exist in that case ?--No; and it would be no hard- been incurred in selling an encumbered estate in ship upon the creditor that I am aware of; he Ireland.
would not have the remedy, which I think he 449. Does the multiplication of parties to a suit sai ought never to have had, of obtaining a receiver which you have mentioned, and which is attended
upon petition, but he would be in the same situa- with great expense, arise out of the state of the tion as a creditor in this country would be in. law, or is the remedy for that evil within the pur
443. But can the judgment creditor apply for a view of the rules of the Court ?- The Chancellor receiver in England ?-No; he cannot obtain a in Ireland has very great power under Acts of receiver in this way in England; there is no similar Parliament. I have exercised that power to a very appointment of receivers in England upon judg- great extent, and even to a diminution of the ments.
revenue of the country ; I could give an example. 445. Considering the present unhappy circum- There was in Ireland, and which still prevails in stances of Ireland, and the extensive use of this England, the abuse (for I cannot call it anything power of charging land, with its present accom- else) of hourly warrants before the Master ; a paniments
, would there be danger in making a cause lasted for six or seven years in the Master's change of the law at this juncture?-On the con- office, the parties met for an hour, and when they trary, I think this is the very moment at which to met again at the end of a week or a fortnight, you do it. As far as estates are so encumbered that found that half of the time was always lost in conthe present owners cannot retain thein, you are now sidering what had been discussed or decided upon attempting to introduce new blood or new life into at the previous meeting, and so the cause went on Ireland, and it is therefore the precise moment, as from year to year. In Ireland there was a difficulty it appears to me, at which to introduce a measure in altering that, because there was a stainp duty of that sort.
upon every hourly warrant, and that went to the 446. The general outline of the law with regard Consolidated Fund; but I found that I had power to judgments in Ireland you would leave unchang- to alter that system, and consequently I made a ed?-Yes, I would.
rule that there should be no hourly warrants, but
ADDISON ON THE LAW OF CONTRACTS
that there should be one warrant for a cause unless, he does not care whether the farms are dilapidated, the Master directed an additional one, and that or whether the land is out of heart. He says, “ every cause should be heard straight through. The will have every shilling of my debt out of the consequence was, that instead of there being scores estate." . Now I would correct that at once ; in ing of warrants in causes, there were only two or three, opinion if an estate is brought under the dominion and instead of there being meetings which, for of the court for the benefit of creditors, public neexample, in one case had lasted six years, I found cessity demands that if you make the court as it that after the new rule had come out the whole were the master of the estate for the time, you matter was disposed of in three days.
should give to the court all the power which be451, After the remedies which have been applied longs to an owner; and therefore I should feel no to the registration in Ireland, have you anything difficulty, if I had the power, in making a law to suggest upon the subject of receivers ?-1 am which should give to the court a power, to be ever. not prepared to give any advice upon the subject of cised of course according to its judicial discretion, receivers
, but I have no doubt it wants some cor- with relation to the estates of encumbrancers genrection.
erally as to their management, cultivation and 452. Then we are to understand that, on the allowances, and so forth, in the same way as the whole, the law as regards receivers you would court would do with the estates of minors or of maintain ?-Yes.
lunatics. 454. Chairman.] When you mentioned that you
(To be continued.) would, for judgments above a certain amount, grant receivers, would you still render it obligatory on
JUST PUBLISHED, the court to grant receivers, or would you leave it optional with the court to grant receivers or not, A TREATISE on the Law of CONTRACTS, and Rights according to their discretion ?-I think the court Inner Temple, Barrister-at. Law. Second Edition, 2 vols. 8vo. price Lives ought to have no option. The granting receivers
RUSSELL ON ARBITRATION, ought to be a ministerial act merely. The duty of A TREATISE on the Power and Duty of an ARBI
TRATOR, and the Law of Submissions and Awards; with a the court should be merely to see that the party Appendixs of Forms and of the statutes relating to Arbitration. By
FRANCIS RUSSELL, Esq., M.A., Barrister-at-Law, I Fol. Bro, Na applying is entitled to the remedy which he seeks ; | £1 68. otherwise one Chancellor would give a receiver,
BAYLEY ON BILLS OF EXCHANGE. and another Chancellor would not do so; and ex- / SUMMARY of the Law of Bills of Exchange, Cash Bills, pense would be incurred, and nobody would be Edition, by G. W. 'DOWDESWELL, Barrister-at-Law. I val. . sure what the remedy was.
BURGE ON THE LAW OF SURETYSHIP. 455. Have you thought of the limit that you | COMMENTARIES on the Law of SURETYSHIP, and would propose as to the amount of the judgments BURGE, Esq. O c. M.A. &c. for which receivers should be granted ?-I cannot STANFIELD'S PRECEDENTS IN CONVEYANCING. say that I have seriously thought about it, but I | A COLLECTION of Copyhold PRECEDENTS IN should have no difficulty in stopping at £100. I
gether with Introductory Treatises upon the various transactions and should be inclined to take even a higher sum. occurrences incident to Estates of customary tenure, &c. By JOHN F. 457. With reference to the number of receivers
STANFIELD, Esq. I vol. 8vo. 125, that have been appointed, is it your opinion that I QUESTIONS FOR LAW STUDENTS on the Second that is a great evil ?- Undoubtedly; the evils are of England. By JAMES STEPHEN, Esq. of the Middle Temple, Ber.
rister at.Law. I vol. 8vo, cloth boards, price 10s. 6d. so great that no country can prosper under them ; I cannot conceive any greater evils. The first effect | CONCISE FORMS OF WILLS, with Practical Notes.
T. is to sever the relation of landlord and tenant; the receiver is not the landlord, and the conse- on the Law of Husband and Wife as respecte Property, partly founded
upon Roper's Treatise, and comprising Jacobs' Notes and Additions thereta. quence is that the receiver of course has nothing to By J. E.' WRIGHT, Esq. of the Inner Temple, Barrister.at-Law, 2 r, look to but to get the rent, in order both to get his royal 8vo. £2 108 boards. poundage, and to keep himself right with the court A
TREATISE ON THE LAW OF LEGACIES. By
the late R. S. DONNISON ROPER, Esq., Barrister-at.lar, and the creditor. There has been a great misap- Gray-s-inn; and by H: H. WHITE, Esq., Barrister-at-law, of the Mia prehension in the public mind as to the power of die Temple. Fourth Edition. 2 volá royal 8vo. £3 3s. boards. the Court of Chancery over receivers. In the case A TREATISE ON THE LAW OF EVIDENCE, as
administered in England and Ireland; with Illustrations from the of the estates of minors and lunatics, the court has American and other Foreign Laws. By JOHN PITI TAYLOR, Esq.
of the Middle Temple, Barrister-at. Law. 2 vols, royal 8vo. £2. perfect power; and I have dealt with lunatics'
EDWARD J. MILLIKEN, LAW BOOKSELLER AND estates just in the same way as I would have dealt PUBLISHER, 15, COLLEGE GREEN, DUBLIN. with my own estate. In the case of a peer who was a lunatic living on his own estate, I added a large - the Editor, with the publisher, E., J. MALLIKEN, A COLLEGE sum to his allowance on my own motion, in order columns of the paper cannot be occupied with answers to Anonymous that, as he was living upon the estate, he might be
Communications-nor will the Editor be accountable for the return of
Manuscripts, &c. able to live as the landlord, and fulfil the duty of landlord to his tenants.
Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL. The court has the power LEGEA KEEN, or by letter (post-paid), will ensure its punctual delivery to act as it thinks proper to any extent in these in Dublin, or its being forwarded to the Country, by Post, on the day of
publication. cases; but in cases of judgment creditors and
Terms or SUBSCRIPTION-(payable in advance): mortgagees, it is said there is no money laid out in
Yearly, 30s. Half-yearly, 178. Quarterly, 91. repairs, or in favour of the tenants; of course there is not, because the court has no power ; the credi- FLEET.STREET, in the Parish of St. Andrew, and published
Printed by THOMAS ISAAC WHITE, at his Printing Office, Na. 45, tor does not care one farthing about the estate ; he COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON looks upon it merely as a security for his debt, and City of Dublin. Saturday, August 11, 1849.
I vol. 8vo. 18s.
All communications for the IRISH JURIST are to be left, addressed
No. 42.-VOL. I.
Per Annum, £1 10.
Single Number, Pi. The Names of the Gentlemen who favour The Irish Jurist with Reports in the several Courts of
Law and Equity in Ireland, are as follows :
ROBERT Loxo, Esq., Court of Chancery, in: S and
Court of Exchequer S Joun Blackham, Esq., and
A. HICKEY, Esq., Barristers-at
Queen's Bench, includ- ( FLORENCE MCARTHY, Esq., and
ing Civil Bill and Re-3 SAMUEL V. Peet, Esq., Rolls Court........
WILLIAM John DUNDAS, Esq., gistry Appeals..... Barristers-at-Law.
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and Registry Appeals.
| Robert GRIFFIN, Esq. and W. G.
ROBERT GRIFFIN, Esq. and W.G.
CHANNEY, Esq. Barristers-at-law.
DUBLIN, AUGUST 18, 1849.
we are not clear that it was not more consonant
allowed to be given in proof, though not men- taken by surprise, by proofs of which he could have i coy? tioned in the pleadings.
no intimation, from the manner in which evidence The suit was, amongst other matters, to raise in courts of equity is taken, and could not disprove the amount of a mortgage, and it was alleged that before publication of that evidence. the defendant had taken upon himself its payment, Thus there was much reasonableness in the rule, on the completion of the sale mentioned in the bill. when the mode of examining witnesses in equity is In support of this averment, two accounts were considered. The plaintiff knows no doubt what he given in evidence between the defendant and the requires his own witness to prove, although he does land agent of the vendor, in which the defendant not know whether it has been proved or not; but took credit for part of the purchase money retained the defendant does not know what particular facts ou account of the mortgage.
the witness of the opposite side is called upon to de. These accounts were not put in issue, nor re- pose to, except they be put in issue by the pleadferred to in the bill.
ings. His Lordship held that they were admissible in So long as the evidence of each witness is given evidence; and having cited the judgment in Malcolm in secret, and that the attention of the opposite v. Scott (3 Hare 39), “this bill, however, expressly party is not directed, as in the Ecclesiastical courts, charges that there was an agreement for giving the to the particular branch of the case the witness is lien in question, and I am perfectly clear, according to be examined to, it appears desirable that there to the rule Lord Cottenham laid down, that what should be some clue to guide the party cross-exever would be evidence of an agreement at law is amining. The points even distinctly put in issue in evidence in equity, subject to this: that if one party the pleadings formed a very wide boundary, but should keep back evidence, which the other might yet they did form a limit and a test. explain, and thereby take him by surprise, the An inconvenience, and which led to breaking court will give no effect to such evidence without down this rule, arose from prolix pleaders stuffing first giving the party an opportunity of controvert the record with every letter or document in extenso ing it." His lordship observed, “ 'That doctrine is on which they relied, and it was relaxed by Sir A. approved of in M Mahon v. Burchell, and taking Hart in Fitzgerald v. O'Flaherty, (1 Moll. 351,) to it to be the rule, I must allow these accounts to be prevent equity pleadings becoming endless. The read subject to observation, and to have their effect rule has now become established that where letters qualified ; the course pursued will, however, have or documents are intended to be used as evidence great weight in the question of costs, if the court of facts charged in the bill they need not be specishould feel coerced to give a decree on these docu- fically put in issue. A general averment of their ments.”
existence is, however, if not indispensable, very průThe old rule unquestionably was different, and dent, and the rule of their admissibility was by the
same learned judge restricted to cases where they tenable in all its parts; the administration of jus. were used as evidence of facts; and it has been de- tice, and the mode of its being administered in the cided that they could not be used as admissions or two courts, is widely dissimilar, and the class of confessions of facts without being mentioned in the evidence that might answer for the scramble at pleadings. Blacker v. Phepoe, (1 Moll. 354); Houl- Nisi Prius, would be unsuited to the deliberate in. ditch v. Marquis of Donegal. (ib. 364) And conver- quiry of a Court of Equity. sations between a witness and a party to the suit in which the latter adınitted his having defrauded the other were rejected because not noticed in the plead- In a recent case [Webster v. Delafield, (13 Jurist, ings, and the judge to whom we have already re- 635,)] considerable doubt has been thrown upon a ferred used the strong language that “no man would practice connected with the law of Interpleader, (1 be safe if he could be affected by such evidence.” & 2 W. 4, c. 58, Eng., 9 & 10 Vic. c. 64, Ir.) which
It is obvious that a question of exceeding nicety had previously been considered settled, viz that the must very often arise between what is evidence of a statement, and nature, and particulars of the claim. fact and what are admissions of a fact, an inconve-ant's case should be upon affidavit. This is the nience that must be the result of breaking down a principle feature of the decision; but two other general rule; cases for its relaxation will be of frequestions, also of much practical importance
, were quent occurrence, and give rise to the nicest and discussed: First, as to the authority of the court to most subtle distinctions. The marginal note to bar the plaintiff, under the 3rd section of the 9th & Crosbie v. Thompson states that “any documents 10th Vic. c. 64,* he having appeared, and no rule which could be used at law as admissions to prove after appearance having been made upon him; and an agreement pleaded may be used in evidence in secondly, whether the affidavit on which the claim equity for the same purpose, though not noticed in was founded should necessarily be made by the the bill, subject to enquiry, if the defendant be taken claimant himself. by surprise." We apprehend the learned judge did The facts of the case were, A., the plaintiff
, seized not mean to go this length, and that he admitted the furniture and goods of B., the defendant; at the the accounts as evidence of the agreement, and not time of the seizure, C. and D. attorneys for E. the as an admission of it.
claimant, gave notice to the sheriff that the house In this and in many other cases there is, however, and goods were the property of E. The sheriff almost a distinction without a difference, because having obtained a summons for an interpleader here the accounts apparently were more efficacious der, Č. attended before Coltman J. at chamber
, and for the purpose of admission than of evidence, and produced an affidavit sworn by E. before an English the existence of the practice excluding them in the consul at Paris. This affidavit was refused by the one and admitting them in the other instance proves judge, not being sworn before a competent person. that the rule has been too broadly laid down by C. then made an affidavit of his belief that the goods Lord Cottenham, “that whatever would be evidence in question belonged to E, and that he (C.) was in of the agreement at law is evidence in equity.” possession of the title deeds of the house; that E.
An oral admission would be evidence at law, but had left the country in 1848, and left the house and would it be admissible in equity ? No man would furniture in the custody of his servants. The case be safe if it were.
was adjourned to allow a proper affidavit by the The principal case stands on the verge, it is a claimant to be procured, but there being no compecompound of evidence and admission, and it is ex- tent authority at Paris to administer such an oath as ceedingly difficult to discriminate why oral testimony the English law requires, C. again came before the should be discarded, (as we apprehend it would be,) judge at chamber, and made another affidavit to the and written admitted, in cases similar to the prin- 'effect that from papers in his possession he believed cipal one.
the goods seized to be the property of E, that inefWe conceive it almost impossible to adhere to fectual efforts had been made to obtain an affidavit Lord Cottenham's general rule, and that it would from E., who was too unwell to travel to England. be a very unsafe one for the pleader to rely on. It The learned judge being of opinion that the claim must, we apprehend, introduce great laxity of plead- was insufficient, made an order to bar the claimant ings, and loose general averments.
under the third section. On the balance of convenience, it would appear Against this order it was contended that as the better that the facts relied on should be distinctly order to appear and state his claim had not been stated in the first instance, than that there should served on E.,f he could not be barred, and that the be a discretion reposed in the judge “ of giving the affidavit of C. was sufficient. On the other hand, party taken by surprise an opportunity of contro- it was said—first, that there must be an affidavit, verting” the newly offered evidence, by further in. Powell v. Lock (3 Ad. & El. 315, S. C, 4 Nev. & quiry. Will not this lead to greater inconvenience Mar. 852); that this affidavit was insufficient; and than if the old rule were adhered to; and, in many that, therefore, not having maintained his claim, cases, to save this further inquiry, the judge will the claimant was barred. either not give the evidence its true weight, and rest his decision on other grounds, or if he gives it
The Irish-act is cited to prevent confusion, being identhe weight of a feather in the scale, he will, imper
tical with the English.
| This argument does not appear tepable; if the order ceptibly to himself, decide on evidence which was
was not served, the court could have no jurisdiction to adunfairly brought forward against the opposite judicate on the claimant's rights. The service upon his party.
agent or attorney was probably that which was acted The analogy of a court of common law is not upon.—Ep.
The court were unanimously of opinion that the seems to me, that the claimaint's duty is to obey the claim need not be supported by the affidavit of the order, and if he does not, that he is to be mulcted claimant himself. Maule, J. was of opinion that in costs, but not that the penalty of his disobedience there was no necessity for any affidavit, that the is to be a forfeiture of his whole clain. In the statute required none ; that the judge may make case of Powell v. Lock (3 Adol. & Ell. 315) the an order, calling upon the party to appear and state application was to the full court, and not to a judge the nature and particulars of his claim, and under at chambers. The objection was, that there was certain circumstances, may declare him barred. no affidavit, and the dicta of the judges, and the “ As to this, I do not think that the judge has any questions put from the bench were to the effect different power when the sheriff is the applicant, that the claim ought to have been stated on affidafrom that which he has when any other person ap- vit. The decision of the court was, that the party lies. The true construction appears to me to be should have time to make an affidavit, and more this:-Sec. 1 empowers the judge to make an or- than this they did not intend to decide. Nothing der for the claimant to appear and to state the was said about the claimant being barred ; and nature and particulars of his claim, which he is although the court thought that there should be an either to maintain or relinquish. If he maintain affidavit, they did not say what the consequence bis claim, the judge may order an issue or action; was to be if there was not one.” Cresswell, J. was or if the claimant and the plaintiff consent, the of opinion, on the authority of Powell v. Lock, that judge may dispose of the merits in a summary man- an affidavit was necessary, though it need not be ner, which is, by sec. 2, to be final and conclusive; made by the claimant. Williams, J. agreed that or the claimant may relinquish his claim; and I the affidavit need not be by the claimant himself; think it is wrong to hold that he must maintain or but was of opinion that the statute required an relinquish it by affidavit. Then comes sec. 3, which affidavit ; and that the order of Coltman, J. should enacts, that if he shall not appear upon such rule not be set aside, as the true ground on which he or order, being duly served therewith, to maintain proceeded was, that the claim was not sufficiently or relinquish his claim, or shall neglect or refuse to stated, of which he was the judge. comply with any rule or order to be made after We
e agree that an affidavit by a third person, in appearance, it shall be lawful for the judge to de support of a claim, is sufficient ; but it also appears clare him to be for ever barred from prosecuting to us that an affidavit is necessary. The 6th section his claim against the original defendant. Sec. 1, enacts, “ That when a claim shall be made to any gives the judge no power to make an order to bar goods or chattels, taken or intended to be taken in a claimant ; and the rules or orders mentioned in execution, the court or judge may call before him sec. 3, mean rales or orders not inconsistent with, or them, by rule of such court or judge, as well the but subservient to those authorised by sec. 1. The party to every such process as the person making only section conferring the power to bar, is sec. 3, the claim, and thereupon to exercise for the adjustand that applies (in a case where a party appears ment of such claims, and the protection of the and does not relinquish his claim) if he neglects or officer, all of the powers and authorities herein-before refuses to comply with any rule or order made contained.” The course of proceeding then is, that after appearance. In this case no order has been if a claim be made, the court, “ by rule,” will made after the claimant's appearance. He has not direct the claimant to come before them, and then failed to comply with any order so made. There will exercise the powers vested in it by the act. has been no decision upon the merits by an action What then, are those powers and authorities ? The or feigned issue, or by the judge with the consent first is to call upon the third party, to state the of the parties ; por has the claimant relinquished nature and particulars of his claim, or to maintain his claim; therefore I think his claim ought not to or relinquish it. How is this to be done? except be barred. This view, I think, is in conformity by affidavit, which, by the 7th section is to be filed with both the letter and the spirit of the act, which as a record. How, in case of an appeal, from the was intended to substitute a remedy for the previous decision of the judge at chambers, are the facts to be tardy and expensive process in Chancery by bill brought before the court above, except they appear of interpleader. The Legislature intended, with by affidavit ? What is the nature of the evidence, the addition of protection to the sheriff, to leave on which the judge is to decide whether he will the rights of conflicting parties in as nearly the grant an issue, or, with the consent of the parties, same state as they were in before the inter- give his final adjudication ? On these grounds, pleader. Before that, the claimant might bring his together with the practice of the court, in not ad. action without consulting anybody; he might sue mitting any statement not upon affidavit, we think out his writ and pursue his remedy without stating this case requires it. any claim; and this, his right at common law, it The question then arises, whether the claimant was not the object of the statute to do away with, having appeared, and failing to maintain, is barred? except so far as might be beneficial to defendants but for the opinion of that able and experienced judge, who might be sued, and have no interest in the sub- Mr. Justice Maule, we should have thought he was. jeet matter of the suit. Further, to qualify this To follow again the course of proceeding pointed right does not benefit his opponent, but must pre-out by the statute, the claim requires no affidavit ; judice the claimant ; and there is no reason for but when made, the judge, under the 6th section, imposing restrictions upon him rather than upon by rule,” is to call the claimant before him, for the any other party. But it may be said, of what use purpose, under the 1st section, of maintaining or is it that a judge should have power to make an relinquishing liis claim; upon such rule, he is to order, if it may be disobeyed with impunity? It hear the allegations on the one side and the other;