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Erish Jurist

No. 42.-VOL. I.

AUGUST 18, 1849.

PRICE

SPer Annum, £1 10s. {Single Number, 9d.

The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows:

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THE recent decision of Crosbie v. Thompson, (11 I.E.R. p. 404), is one of a series of cases, by which evidence tantamount to an admission is allowed to be given in proof, though not mentioned in the pleadings.

The suit was, amongst other matters, to raise the amount of a mortgage, and it was alleged that the defendant had taken upon himself its payment, on the completion of the sale mentioned in the bill. In support of this averment, two accounts were given in evidence between the defendant and the land agent of the vendor, in which the defendant took credit for part of the purchase money retained on account of the mortgage.

These accounts were not put in issue, nor referred to in the bill.

His Lordship held that they were admissible in evidence; and having cited the judgment in Malcolm v. Scott (3 Hare 39), "this bill, however, expressly charges that there was an agreement for giving the lien in question, and I am perfectly clear, according to the rule Lord Cottenham laid down, that whatever would be evidence of an agreement at law is evidence in equity, subject to this: that if one party should keep back evidence, which the other might explain, and thereby take him by surprise, the court will give no effect to such evidence without first giving the party an opportunity of controverting it." His lordship observed, "That doctrine is approved of in M Mahon v. Burchell, and taking it to be the rule, I must allow these accounts to be read subject to observation, and to have their effect qualified; the course pursued will, however, have great weight in the question of costs, if the court should feel coerced to give a decree on these docu

ments."

The old rule unquestionably was different, and

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we are not clear that it was not more consonant with the spirit of equity jurisprudence than the modern one.

It used to be considered essential, that every matter intended to be proved, should be put distinctly in issue, to guard against the opposite party being taken by surprise, by proofs of which he could have no intimation, from the manner in which evidence in courts of equity is taken, and could not disprove before publication of that evidence.

Thus there was much reasonableness in the rule, when the mode of examining witnesses in equity is considered. The plaintiff knows no doubt what he requires his own witness to prove, although he does not know whether it has been proved or not; but the defendant does not know what particular facts the witness of the opposite side is called upon to depose to, except they be put in issue by the pleadings.

So long as the evidence of each witness is given in secret, and that the attention of the opposite party is not directed, as in the Ecclesiastical courts, to the particular branch of the case the witness is to be examined to, it appears desirable that there should be some clue to guide the party cross-examining. The points even distinctly put in issue in the pleadings formed a very wide boundary, but yet they did form a limit and a test.

An inconvenience, and which led to breaking down this rule, arose from prolix pleaders stuffing the record with every letter or document in extenso on which they relied, and it was relaxed by Sir A. Hart in Fitzgerald v. O'Flaherty, (1 Moll. 351,) to prevent equity pleadings becoming endless. The rule has now become established that where letters or documents are intended to be used as evidence of facts charged in the bill they need not be specifically put in issue. A general averment of their existence is, however, if not indispensable, very pradent, and the rule of their admissibility was by the

same learned judge restricted to cases where they were used as evidence of facts; and it has been decided that they could not be used as admissions or confessions of facts without being mentioned in the pleadings. Blacker v. Phepoe, (1 Moll. 354); Houlditch v. Marquis of Donegal. (ib. 364) And conversations between a witness and a party to the suit in which the latter admitted his having defrauded the other were rejected because not noticed in the pleadings, and the judge to whom we have already referred used the strong language that "no man would be safe if he could be affected by such evidence."

It is obvious that a question of exceeding nicety must very often arise between what is evidence of a fact and what are admissions of a fact, an inconvenience that must be the result of breaking down a general rule; cases for its relaxation will be of frequent occurrence, and give rise to the nicest and most subtle distinctions. The marginal note to Crosbie v. Thompson states that "any documents which could be used at law as admissions to prove an agreement pleaded may be used in evidence in equity for the same purpose, though not noticed in the bill, subject to enquiry, if the defendant be taken by surprise." We apprehend the learned judge did not mean to go this length, and that he admitted the accounts as evidence of the agreement, and not as an admission of it.

In this and in many other cases there is, however, almost a distinction without a difference, because here the accounts apparently were more efficacious for the purpose of admission than of evidence, and the existence of the practice excluding them in the one and admitting them in the other instance proves that the rule has been too broadly laid down by Lord Cottenham, "that whatever would be evidence of the agreement at law is evidence in equity."

An oral admission would be evidence at law, but would it be admissible in equity? No man would be safe if it were.

The principal case stands on the verge, it is a compound of evidence and admission, and it is exceedingly difficult to discriminate why oral testimony should be discarded, (as we apprehend it would be,) and written admitted, in cases similar to the principal one.

We conceive it almost impossible to adhere to Lord Cottenham's general rule, and that it would be a very unsafe one for the pleader to rely on. It must, we apprehend, introduce great laxity of pleadings, and loose general averments.

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On the balance of convenience, it would appear better that the facts relied on should be distinctly stated in the first instance, than that there should be a discretion reposed in the judge " of giving the party taken by surprise an opportunity of controverting" the newly offered evidence, by further inquiry. Will not this lead to greater inconvenience than if the old rule were adhered to; and, in many cases, to save this further inquiry, the judge will either not give the evidence its true weight, and rest his decision on other grounds, or if he gives it the weight of a feather in the scale, he will, imperceptibly to himself, decide on evidence which was unfairly brought forward against the opposite party.

The analogy of a court of common law is not

tenable in all its parts; the administration of jus tice, and the mode of its being administered in the two courts, is widely dissimilar, and the class of evidence that might answer for the scramble at Nisi Prius, would be unsuited to the deliberate inquiry of a Court of Equity.

IN a recent case [Webster v. Delafield, (13 Jurist, 635,)] considerable doubt has been thrown upon a practice connected with the law of Interpleader, (1 & 2 W. 4, c. 58, Eng., 9 & 10 Vic. c. 64, Ir.) which had previously been considered settled, viz. that the statement, and nature, and particulars of the claimant's case should be upon affidavit. This is the principle feature of the decision; but two other questions, also of much practical importance, were discussed: First, as to the authority of the court to bar the plaintiff, under the 3rd section of the 9th & 10th Vic. c. 64,* he having appeared, and no rule after appearance having been made upon him; and secondly, whether the affidavit on which the claim was founded should necessarily be made by the claimant himself.

The facts of the case were, A., the plaintiff, seized the furniture and goods of B., the defendant; at the time of the seizure, C. and D. attorneys for E. the claimant, gave notice to the sheriff that the house and goods were the property of E. The sheriff having obtained a summons for an interpleader order, C. attended before Coltman J. at chamber, and produced an affidavit sworn by E. before an English consul at Paris. This affidavit was refused by the judge, not being sworn before a competent person. C. then made an affidavit of his belief that the goods in question belonged to E, and that he (C.) was in possession of the title deeds of the house; that E. had left the country in 1848, and left the house and furniture in the custody of his servants. The case was adjourned to allow a proper affidavit by the claimant to be procured, but there being no competent authority at Paris to administer such an oath as the English law requires, C. again came before the judge at chamber, and made another affidavit to the effect that from papers in his possession he believed the goods seized to be the property of E., that inef fectual efforts had been made to obtain an affidavit from E., who was too unwell to travel to England. The learned judge being of opinion that the claim was insufficient, made an order to bar the claimant under the third section.

Against this order it was contended that as the order to appear and state his claim had not been served on E.,† he could not be barred, and that the affidavit of C. was sufficient. On the other hand, it was said first, that there must be an affidavit, Powell v. Lock (3 Ad. & El. 315, S. C., 4 Nev. & Mar. 852); that this affidavit was insufficient; and that, therefore, not having maintained his claim, the claimant was barred.

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The court were unanimously of opinion that the claim need not be supported by the affidavit of the claimant himself. Maule, J. was of opinion that there was no necessity for any affidavit, that the statute required none; that the judge may make an order, calling upon the party to appear and state the nature and particulars of his claim, and under certain circumstances, may declare him barred. "As to this, I do not think that the judge has any different power when the sheriff is the applicant, from that which he has when any other person aplies. The true construction appears to me to be this:-Sec. 1 empowers the judge to make an order for the claimant to appear and to state the nature and particulars of his claim, which he is either to maintain or relinquish. If he maintain bis claim, the judge may order an issue or action; or if the claimant and the plaintiff consent, the judge may dispose of the merits in a summary manner, which is, by sec. 2, to be final and conclusive; or the claimant may relinquish his claim; and I think it is wrong to hold that he must maintain or relinquish it by affidavit. Then comes sec. 3, which enacts, that if he shall not appear upon such rule or order, being duly served therewith, to maintain or relinquish his claim, or shall neglect or refuse to comply with any rule or order to be made after appearance, it shall be lawful for the judge to declare him to be for ever barred from prosecuting his claim against the original defendant. Sec. 1, gives the judge no power to make an order to bar a claimant; and the rules or orders mentioned in sec. 3, mean rules or orders not inconsistent with, but subservient to those authorised by sec. 1. The only section conferring the power to bar, is sec. 3, and that applies (in a case where a party appears and does not relinquish his claim) if he neglects or refuses to comply with any rule or order made after appearance. In this case no order has been made after the claimant's appearance. He has not failed to comply with any order so made. There has been no decision upon the merits by an action or feigned issue, or by the judge with the consent of the parties; nor has the claimant relinquished his claim; therefore I think his claim ought not to be barred. This view, I think, is in conformity with both the letter and the spirit of the act, which was intended to substitute a remedy for the previous tardy and expensive process in Chancery by bill of interpleader. The Legislature intended, with the addition of protection to the sheriff, to leave the rights of conflicting parties in as nearly the same state as they were in before the interpleader. Before that, the claimant might bring his action without consulting anybody; he might sue out his writ and pursue his remedy without stating any claim; and this, his right at common law, it was not the object of the statute to do away with, except so far as might be beneficial to defendants who might be sued, and have no interest in the subjeet matter of the suit. Further, to qualify this right does not benefit his opponent, but must prejudice the claimant; and there is no reason for imposing restrictions upon him rather than upon any other party. But it may be said, of what use is it that a judge should have power to make an order, if it may be disobeyed with impunity? It

seems to me, that the claimaint's duty is to obey the order, and if he does not, that he is to be mulcted in costs, but not that the penalty of his disobedience is to be a forfeiture of his whole claim. In the case of Powell v. Lock (3 Adol. & Ell. 315) the application was to the full court, and not to a judge at chambers. The objection was, that there was no affidavit, and the dicta of the judges, and the questions put from the bench were to the effect that the claim ought to have been stated on affidavit. The decision of the court was, that the party should have time to make an affidavit, and more than this they did not intend to decide. Nothing was said about the claimant being barred; and although the court thought that there should be an affidavit, they did not say what the consequence was to be if there was not one." Cresswell, J. was of opinion, on the authority of Powell v. Lock, that an affidavit was necessary, though it need not be made by the claimant. Williams, J. agreed that the affidavit need not be by the claimant himself; but was of opinion that the statute required an affidavit; and that the order of Coltman, J. should not be set aside, as the true ground on which he proceeded was, that the claim was not sufficiently stated, of which he was the judge.

We agree that an affidavit by a third person, in support of a claim, is sufficient; but it also appears to us that an affidavit is necessary. The 6th section enacts, "That when a claim shall be made to any goods or chattels, taken or intended to be taken in execution, the court or judge may call before him or them, by rule of such court or judge, as well the party to every such process as the person making the claim, and thereupon to exercise for the adjustment of such claims, and the protection of the officer, all of the powers and authorities herein-before contained." The course of proceeding then is, that if a claim be made, the court, "by rule," will direct the claimant to come before them, and then will exercise the powers vested in it by the act. What then, are those powers and authorities? The first is to call upon the third party, to state the nature and particulars of his claim, or to maintain or relinquish it. How is this to be done? except by affidavit, which, by the 7th section is to be filed as a record. How, in case of an appeal, from the decision of the judge at chambers, are the facts to be brought before the court above, except they appear by affidavit? What is the nature of the evidence, on which the judge is to decide whether he will grant an issue, or, with the consent of the parties, give his final adjudication? On these grounds, together with the practice of the court, in not ad mitting any statement not upon affidavit, we think this case requires it.

The question then arises, whether the claimant having appeared, and failing to maintain, is barred? but for the opinion of that able and experienced judge, Mr. Justice Maule, we should have thought he was.

To follow again the course of proceeding pointed out by the statute, the claim requires no affidavit; but when made, the judge, under the 6th section, "by rule," is to call the claimant before him, for the purpose, under the 1st section, of maintaining or relinquishing his claim; upon such rule, he is to hear the allegations on the one side and the other;

every creditor, every butcher or baker, the moment he has got a certain amount of debt gets a judgment, and comes instantly to the Court of Chancery with a petition for a receiver. The court has avoided the difficulty of going on appointing receiver after receiver, by extending the receiver. I have seen, in cases where the court has extended the receiver, page after page filled with the names of the different matters in which he has been extended. For instance, originally it has been, "A. B. petitioner, and so and so respondent in the matter," and then the other judgment creditors who have got the receiver extended follow in succession.

and to adjudge finally, or direct an issue, as the case may be. The 2d and 3d sections refer to the first section, and the 6th section, the proceedings under which the judge is empowered to carry out according to the powers and authorities previously given, is, for the purposes of the 2d & 3d sections, to be incorporated in the first. The 3d section enacts, "That if such third party (the claimant), shall not appear upon such rule or order to maintain or relinquish, being duly served therewith; or shall neglect or refuse to comply with any rule or order to be made after appearance, he shall be barred from prosecuting his claim against the original defendant, &c." The legitimate reading of the first section appears to be, that stating the particulars of the claim, is of itself, either maintaining or relinquishing; if the claimant's statement be, in the opinion of the judge, satisfactory, the claim is maintained; if the claimant can make no such satisfactory statement, he must relinquish. What then was the state of the facts in the case before us? The claimant himself, or through his attorney, was served with a rule under the 6th section, or the court had no jurisdiction. He was bound "being duly served therewith" by the third section (under the penalty of being barred) "to appear upon such rule to maintain or relinquish his claim;" not only to appear, but in addition to maintain or relinquish. The claimant did appear, but having, in the opinion of the judge, failed to maintain, he abandoned or relinquished his claim, and was, therefore, barred. This construction would, on the ground of convenience also, seem to be best, as the claimant hav-court intended to do was to prevent any unneces ing appeared, and disobeyed no order of the court made after appearance, in the opinion of Mr. Justice Maule the only penalty would be being mulcted in costs; and an action against the sheriff or execution creditor would help to compensate him for the loss of the costs of a motion.

HOUSE OF COMMONS.
RECEIVER Committee.
Sir Edward B. Sugden, June 21, 1849.
(Continued from p. 316.)

471. In point of fact, the ownership of the estate has passed from the original owner, the debtor, to the judgment creditor?-No doubt; and one of the greatest mischiefs of judgments in Ireland has been, that the owner of an estate has gone on insensibly increasing the incumbrances on his property. He is regarded as the ostensible owner of an estate of £9,000 or £10,000 a year, when he has not more than £200 or £300 a year interest in the property, and he cannot accommodate himself, no man can, to that state of things. He represents an ancient family, possessed of a fine estate, and he is necessarily driven into expenses which he would not incur if he had not that estate, and yet he has no substantial interest in it.

543. Mr. R. B. Osborne.] Are you aware whether the greater proportion of the receivers that have been appointed, have been appointed for small or for large debts?—I should apprehend that till the late Acts had come into operation they would be for large debts; but since those Acts,

545. It is considerable ?—The expense of extending a receiver is about £8, or something of that sort. I would observe that there is another result of those numerous receivers which is very serious, inasmuch as it infringes upon the rights of third persons; when those receivers were not very common in the courts of equity the rule of the court did not operate injuriously; as soon as the court has granted a receiver it will not allow any third person to interfere; so that, supposing you have granted a lease for 100 years, and have a rental of £400 or £500 a year from the estate, if a party has a judgment against your tenant and gets a receiver, the court will not allow you to distrain the tenant for your own rent, or bring an eject ment if he will not pay it; if the landlord comes into court in order to obtain permission to distrain, it will give him leave to distrain, but then the court makes him pay his own costs. What the

sary proceedings being taken, and there was no great grievance when receivers were granted with deliberation, and in suits; but when every tradesman can get a judgment for a debt, and the next morning apply to the Chancellor for a receiver, and the receivers are multiplied as they now are, the rule is a very great deprivation of the rights of property, and operates most injuriously.

546. The receiver in Ireland is only looked to as the man who can get the greatest amount of rent from the tenants?—Yes.

547. Without reference to the improvement in the mode of agriculture?—Yes, it must be so; in Ireland the creditor wants his debt, and nothing less will he have; but that is not confined to Ireland.

575. Mr. Keogh.] With reference to the immense extent to which receivers are continued from one matter to another, are you aware that the costs of appointing a receiver are paid out of the estate in the first instance, though the motion should be made by a person who never had an interest in the property?—Yes.

576. Are you aware that that has induced some persons to apply for the appointment of receivers over property where they never expected to realise their demand?—I am not aware of it, but I think it very probable.

577. Do you think it would contribute to the proper appointment of receivers if the cost of their appointment were reserved in the same way as the demand?-I think it would.

578. As regards the multiplicity of suits, a number of creditors' suits may be going on at the same time till a decree is pronounced; one creditor files his

bill and then another creditor, for the purpose of accumulating costs, goes into the office and takes a copy of that and files it on his own account. Has the court power to stop those suits till the decree is pronounced?—The court has usually not exercised that power, because you can never be sure that the party who has instituted a suit will go on with it. 579. Do you think it would be possible to prevent a multiplicity of suits at the same time? Yes. 580. It would greatly contribute, if it could be done, to save the estate from costs?—It would. 581. Sir J. Graham.] I apprehend from the former part of your evidence that you would not think it desirable to alter the law with reference to judgment to be snatched and a receiver to be appointed ments as affecting the whole property of the debtor? -No. I think general public opinion is in favour of that law, the Legislature having taken away the right of arrest upon mesne process.

586. With respect to appointing receivers, you would alter the law?—Yes; judgment creditors would then have the same rights as a judgment creditor has in England.

587. Would you make the judgment assignable? I think that the power to assign should not be taken away in Ireland.

582. It has been suggested to the committee that prospectively it would be desirable to make the judgment apply only to a particular portion of the property? That would be very difficult.

583. To black-acre for instance?—That cannot be from the nature of the proceeding; but the court has been in the habit of putting a receiver upon a portion of the estate to pay a particular judgment which comes to the same point.

588. The only alteration you would propose is with respect to the appointment of receivers for sums below a certain amount?—Yes, and that no receiver should be appointed at all till within a certain period after the judgment has been obtained, say a year or some such period; I would not allow a judg

instantly; I should look to England as the country in which charges on real property are properly regulated, and I should like to see Ireland placed on the same basis; it is utterly inconsistent with the prosperity of the country that there should be so many judgments upon the property and so many receivers.

589. Sir R. Peel.] Supposing the case of a creditor dealing with an improvident young man, and that young man wanted to raise £200, and that for £200 a receiver could not be appointed, might not the effect of such a restriction be that the creditor would say, 66 Though you only want £200, borrow £500 from me, because by lending you £500 I shall have the security of a receiver ?"-No doubt that might be done, and I am not aware of anything that you could do that is not open to abuse,

584. Sir R. Peel.] Is not the power of making the whole of an estate responsible for a judgment debt a great encouragment to improvidence and extravagance?—I think so; I have never had the least doubt about it; and particularly operating as 590. In that case there would be a temptation to it does in Ireland, where a judgment creditor can the young man to borrow money that was not absoget a receiver instantly; if a man could only get judg-lutely required, and thereby to involve himself in ment as in England, and then he had to work it out, he would not in that case be so anxious to obtain a judgment. Supposing a party did not pay his butcher's bill, the butcher would wait as a tradesman does in England, till the party were able to pay his bill, instead of which now he gets a judgment, and then a receiver, and the attorney gets his costs, and that proceeding of obtaining a receiver may never produce a single farthing to the man; but it is a great encouragement to extravagance and improvidence, and also to giving undue credit; the evils are universal almost.

585. Sir J. Graham.] You have stated that you have no hesitation as to the propriety of appointing receivers generally speaking, in cases above £100; if you raised the limit to £500 you would impose a stronger check, and so on in the proportion in which you fixed the minimum high?-No doubt, but I should not propose to take away the operation of a judgment at all; I think such a step would be very badly received in Ireland; and I think it of great importance that any alteration made in the law should carry with it the feeling generally of the people, and that you should not do anything which is adverse to their own sense of what is due to them; and they have so long considered judgments as the common assurance of the country, that they would consider it very hard if you took away the operation of judgments; but nobody would have a right to complain of your altering an Act of Parliament which was passed only the other day, and which gave creditors rights in addition to the rights they had under the old law.

greater embarrassments?-Numbers of those judgments are not for borrowed money; they are for ordinary debts, contracted in the course of a man's living, with his tradesmen, one after the other, and a person to whom he is debtor obtains a judgment; they have nothing to do with contracts, beyond the actual contracting of the debt by purchasing the goods.

591. Would not the same case occur with a tradesman who would say to the young man, "My debt amounts to £400; run it up to £500 and I shall have the benefit of a receiver ?"-It does not appear to me that that is an objection to the thing. It may happen, as it happens at College, while a man goes on increasing his debts they never press him, but the moment he leaves off spending, then they press him. You cannot guard against a case of that sort.

592. Sir J. Graham.] Are not receivers appointed very often for debts under £10?—Yes.

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593. You must draw the line somewhere if strike at the abuse at all?—Yes; there would be cases such as Sir Robert Peel puts, in which there would be evasion in order to get within the rule, whatever the rule is; you can have no rule that would not be evaded, but its general leading operation would be useful. A man would, I think, not advance more money in the case Sir Robert Peel put in order to obtain a receiver upon petition; or if so, it would probably be an unfair transaction, which the Court of Chancery could correct.

594. The public good appears to you to demand the alterations of the law which you have suggested,

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