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Irish Jurist

Price {£l .

No. 43.-Vol. I.
AUGUST 25, 1849.

Single Number, ed.
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 :

Court of Chancery, in. S

Court of Exchequer

John BLACKHAM, Esq., and
cluding Bankruptcy
John Pitt KENNEDY, Esq.,

A, HICKEY, Esq., Barristers-at-


Queen's Bench, includ- ( FLORENCE M.Carthy, Esq., and


ing Civil Bill and Re- SAMUEL V. Peet, Esq.,
Rolls Court...... WILLIAM John DUNDAS, Esq., gistry Appeals. ........ Barristers-at-Law.

Exchequer of Pleas, in: Chas. H. HEMPHILL, Esq., and

Equity Exchequer .......

and Registry Appeals. risters-at-Law.
risters-at Law.

Common Pleas....... { ROBERT GRETERIN, Esq. and W.G.
Bankrupt Court...... { ROBERT GRIFFIN, Esq. and W.G.

Admiralty Court...... { CARLINE 1, Esq. Barristers-at-law. CHAMNEY, Esq. Barristers-at-law.

DUBLIN, AUGUST 25, 1849.

cers who can have no relief in the suit, and are merely brought before the court as necessary parties, are

entitled to their costs, and that in the first instance WHERE several suits are instituted in Equity against out of the fund, and every plaintiff files his bill subthe same defendant, it is the practice, both in the ject to this liability.” This would appear to us to Court of Chancery and Exchequer, after a decree point out precisely the proper fund out of which a has been pronounced in one, to obtain an order defendant's costs should be paid; for why should he staying further proceedings in the other causes, and be put in a better position by the order to stay than that the parties may come in and prove their demauds he was before? and why should a bonâ fide creditor under the decree; and in the Court of Chancery a plaintiff in a suit fairly instituted, be placed in a practice has prevailed by which the plaintiff

' in a worse? Besides, by such a practice the plaintiff is stayed suit is rendered personally liable for the costs injured far more than a defendant would be, were of the several defendants in that cause.

he obliged to wait until the fund be realized; there The case of Loftie v. Forbes, (2 Ir. Eq. R. 443) is no balance of inconvenience from which it might is to be considered the first in this country which be said that where a plaintiff and defendant would distinctly lays down the rule that the plaintiff in a suffer equal inconvenience, in order to discourage stayed suit is personally liable to pay the costs of the unnecessary suits, the leaning should be against the several defendants in that cause, and that, whether plaintiff who is active, and in favour of the defenthe stayed suit bas been vexatiously instituted or not. dant who is brought before the court in invitum, It often happens that from the obstinate litigation and such indeed was the reasoning of Sir Michael of defendants it is impossible for a plaintiff to obtain O'Loghlen in Loftie v. Forbes, (as reported in 2 1. a decree for a considerable time, while a friendly suit, Eq. Rep.) and if there was but one defendant who commenced it may be long after the other, is brought might become entitled to his costs such reasoning to a hearing first, and a decree to account obtained, might be conclusive, but where such defendants from the facilities afforded by the very parties whose are very numerous, and although individually their utmost exertions were used to retard the progress of costs may be inconsiderable, yet the aggregate sum à soit commenced by a bona fide creditor, and abso- for which a plaintiff becomes personally liable may utely necessary to obtain payment of bis demand, be very large, and much more than he can pay or

to us that in such a case this rule, if laid procure until the funds in the cause are realized; the indexibly and acted on without regard to the rule, therefore, does not work fairly, for though a circumstances

of each case, is calculated to work defendant or his solicitor may be inconvenienced e hardship and oppression.

by having to wait for a small sum, the plaintiff may la Croker v, Copley, (2 Moll. 469,) there was a be utterly ruined by being compelled forthwith io

the Exchequer to which the plaintiff in the pay a very large one, before the suit in Chancery was instituted, and the was a party, a receiver was appointed In the case of Jackson v. Curtis, cited in Croker

v. Copley, there was but one suit, and by the decree came on by motion to dismiss the second bill costs had been ordered to defendants, who having

Want of prosecution. The Master of the Rolls, proceeded to enforce payment by an attachment, circumstances Sàving judgment, went very fully into the special lupon application to set it aside the Master of the

of the case, and said, “ Incumbran- Rolls considered that the costs were properly pay






case for in

full argument

able out of the fund; on appeal this order was set tiff's own demand, or, as often happens, his entire aside, and the Lord Chancellor held that the plain- claim should not be paid, it would be rendered still tiff should forthwith pay them. This case, however, more deticient if to that claim were added the costs would seem not to be an authority, for these defen- of puisne incumbrancers, which never could have dants were prior incumbrancers, and the plaintiff been paid if the suit had gone to a hearing. when filing his bill must have been aware that they In Levinge v. De Montmorency, (1 Irish Jurist, were entitled to be redeemed, and it is on that 251,) the Court of Exchequer, upon ground Lord Manners based his decision when he and having all the cases before it, came to a consays, “ The rule that the fund and not the plaintiff clusion which supports the view we have here taken. is to pay the costs only applies to formal parties, A bill had been filed in that court, and a decree not to prior incumbrancers, as to them it is a redemp- to account pronounced. Subsequent to the institu. tion bill.” This case, though cited by the Master tion of the suit

, but before the decree, a bill was of the Rolls in Croker v. Copley as shewing that a filed in the Court of Chancery by two of the deplaintiff is personally liable, distinctly lays down fendants in the Exchequer cause. After the de. that the costs of formal parties, not prior incum- cree an order was made in the Exchequer restrain. brancers, are to be paid out of the fund. And it does ing the plaintiffs from proceeding in Chancery

, not appear to us that this learned judge would have giving them liberty to come in and prove their de sanctioned the practice which now prevails, by which mand in the Exchequer ; subsequent to this, an all costs, whether of prior or subsequent incumbran- order was made in the Rolls for taxation of the cers, formal or other parties, are to be paid by the costs of a defendant in the Chancery cause, these plaintiff in a stayed suit, although he may not have costs were paid by the plaintiff in the stayed suit, any other property whatever beyond the subject- who applied to the Court of Exchequer to be matter of the suit.

repaid by the receiver. Baron Pennefather in In O'Keefe v. Holmes, (1 Irish Jurist, 78,) a de- giving judgment said :-" The present motion is, fendant in a stayed suit applied that the plaintiff that the costs to which the plaintiff in the Chancery might pay his costs; counsel for the plaintiff insisted cause is liable, should be paid in the first instance

, very strongly upon the great hardship of compelling by the receiver out of the funds collected by the the plaintiff to pay these costs before the funds were receiver, or that the defendants in the Chancery realized, as she had very little property except the cause be restrained from taking proceedings against subject-matter of the cause. The Master of the Rolls, the plaintiff in the stayed cause on their demand however, was of opinion that although there might for costs against him. In justice, it would appear be hardship in the case he was bound by the deci- that the plaintiff in the Chancery cause who is resion in Loftie v. Forbes, and that it was desirable strained from proceeding there by the order of this not to break in on a rule which tends to check the court, is substantially entitled to relief in one or institution of several suits. If that was the only other of the shapes in wbich he seeks it." And his effect of the rule, and if it worked only to the pre- Lordship referred to the manuscript note of Loftie judice of plaintiff's who-a suit being already in pro- v. Forbes by Sir M. O'Loghlin.* Baron Pennegress in which they could obtain full relief-com- father also said :-“As tothe costs of prior creditors mence another for the mere purpose of onerating whom the plaintiff brings before the court in the the estate with costs, we would be sorry to see it Chancery cause, he is undoubtedly liable in the event relaxed in the slightest degree; but when, as we of a deficient fund.” “ With regard to subsequent have already shewn, it may injure the bonâ fide creditors they must get their costs in the same prie plaintiff, perhaps the first to take proceedings for ority as their demands. The costs of puisne creditors the recovery of a fair demand, there we certainly are not to be put out of their proper priority." It apthink the rule should be relaxed.

pears to us that the rule as laid down in that case is The case of O'Keefe v. Holmes was again con- calculated to work fairly and justly and does not sidered before the Lord Chancellor on appeal, who expose to utter ruin a plaintiff who, as we have affirmed the order of the Rolls. In the same case shown, may have acted with the most perfect good (reported 1 Irish Jurist, 162,) an application was faith, and without the slightest intention of instimade by the plaintiff that the costs of the defendant, tuting oppressive or unnecessary proceedings which he had been ordered to pay, should be paid to him by the receiver, and it was held that the plaintiff, who was a puisne incumbrancer, was only

To the Editor of the Irish Jurist. entitled to have these costs paid in the same priority

SIR, as his demand; there was no positive decision as to In a very recent number you expressed a hope the costs of prior incumbrancers; his Honor inti- in which all your readers participated that the mated, however, that a case might be made out appointment of commissioners for the sale of incumwhich would entitle the plaintiff to these costs, not bered estates should be made from none other than in the priority of the plaintiff's demand, but in that

the purest motives. of the prior incumbrancers; but the notice not hav

The motives which led to these appointments I do ing been so framed the motion was refused. It would not question, but to one of the selections 1 object appear to us that the costs of all the incumbrancers, that of Mr. Hargreave. Towards that gentleman whether prior or puisne to the plaintiff's demand, personally I not only entertain no ill-will

, quite the should be paid according to their respective priori-reverse, I admit his talents; I acknowledge with ties, otherwise the severity of the rule, making a

the utmost satisfaction that general rumour does plaintiff personally liable, would be carried still farther, as if the fund only sufficed to reach the plain

See 1 Irish Jurist, Rep. 352.

not overrate his capacity; I concede that he ran a disabilities may be, was but little known in his own, tinguished career in the London University, that and absolutely unknown in this country. his mathematical abilities are of a very higli order, There should have been a prestige about the name and that his reputation at the Bar is that of an of each judge which would have carried with it the able and rising man; my objection will not, I hope, favorable testimony of the public. be imagined to arise from any other than public and Mr. Hargreave is an English conveyancer. His professional grounds-personal, I have none. Mr. brother commissioner, Dr. Longfield, was examined Hargreave was called to the English Bar in the year not very long since before a Committee of the House 1844; he has not yet, consequently, completed his of Commons, (the Poor Law Committee,) he was fifth year of practice. Of a standing which, in this asked, “Can you suggest any remedy for the precountry, is insufficient by law to justify an appoint- sent uncertainty of title in Ireland?" "I do not think ment to the office of Assistant Barrister, and to a there is any considerable uncertainty of title in Ire

jurisdiction in civil actions where the debts do not land. I think a purchaser in Ireland can be as cerThe exceed the paltry sum of twenty pounds ; this young tain of his title as a purchaser can be in England,

gentleman—who never yet spoke in a court of jus- there is an expense in making out a title, owing to tice-is sent over to Ireland as a judge in a court the number of incumbrancers, but there is no uncerinvested with more arbitrary powers than were ever tainty of title.” yet conferred upon any court of judicature in this « Mr. Bright.] Do you know whether that is the

or the sister country. He is sent, armed with a opinion of English conveyancers, with regard to * Casting voice in decisions which may affect millions Irish titles ?--I do not; but I am sure that the

of property! sent to preside in a court clothed with English conveyancers do not understand the matgreater powers than the Court of Chancery, in a ter ; they do not know the law in Ireland, and I court whose decision is final and irreversible except do not think they are competent to give an opinion its own members think fit to allow an appeal from upon the point.their decisions!

It is one of this class who is sent over to admiLet me assume that the other two members of nister the law of titles in Ireland!!! For my own the court may differ; that the one judge may incline part, I rather think the witness judged the English to decide according to the rights of creditors and lawyers harshly, and I am satisfied, in Mr. Harowners as now existing in courts of Equity; the greave's instance, that he is too conscientious to acother-impressed with the idea that he holds his cept an appointment, if he had not a knowledge of his office more for a political than a judicial purpose, profession; but in this I can agree with Dr. Longfield, and that the great object of the Legislature and of that the English practice differs in some respects the Act was to effect sales and a transfer of pro- from ours, and that there are questions of daily perty—may be disposed to deal more summarily with occurrence, particularly with reference to searches those rights

, and that the junior commissioner gives and judgments, with which they are by no means his judgment, (I care not on which side,) I ask, will familiar, and that an English conveyancer will have that judgment be calculated to carry with it weight much to learn before he can make himself familiar to satisfy the public, or be one in which the profes- with the titles and practice of this country as consions will be disposed to acquiesce?

nected with them. Now the junior Commissioner Nay, without speaking of his judgments will his should have been precisely the one most familiar appointment be calculated to inspire that public with both; on him will devolve very probably the confidence which is so desirable to invite incum- reference to take accounts, and ascertain priorities; brancers and owners to make trial of a new and un- and the preliminary training of an Equity lawyer tried tribunal, where the claims of the one, and the would have been an important advantage, if not an rights of both may be dealt with in a manner they essential, in the future Commissioner. His legal know not of, and according to the unlimited discre- education should not be completed at the expense of tion of the commissioners?

the public; his ephemeral existence should have bi tes.

Lord John Russell was frequently asked to state been one marked with the fulness of life, and with ghtes 3

the names of the proposed commissioners, and he nothing of the incipient stage. Cessant postponed his answer until Parliament rose. His A court of a limited existence, which will

Government passed a measure constituting a court commence proceedings at once should at least which can override the established tribunals of the possess Heads intimately acquainted with the peoCountry-even the Court of Chancery itself—a cir- ple and the country, of whose properties they were Cumstance never previously known in legislation to take the disposal ; a knowledge of the charac. in which is vested the determination of questions ter of the solicitors who were to practise before them that may affect half the properties of this country, would have been desirable ; and the junior Comtrade and the most extreme importance. Was it too thren, should of the three be precisely the one best much to expect that the Crown should have chosen acquainted with the mode of transacting business

should have chosen men calculated from in this country. professional reputation to create confidence in their Never, in the history of judicial appointments,

was there a graver error, on public grounds; never Most assuredly the Government should not have on professional, a deeper insult to the Irish Bar.

utrageously shocked professional and public opi- It is true that there used to exist a practice of nion bribe selection of an English conveyancer of appointing an Eaglish lawyer to be an Irish Chan

years standing, who, however respectable his cellor. These appointments were--inasmuch as




there was no reciprocity—unjust towards a bar com

HOUSE OF COMMONS. posed of as distinguished lawyers as ever adorned

RECEIVER COMMITTEE. Westminster Hall. They were felt to be unjust by the Whig government, and the appointment of the

Right Hon. T. B. C. Smith.June 28. present Chancellor was looked upon as an earnest

(Continued from p. 324.) that the practice would never again be repeated. 1003. That bill goes the whole length of abolIt had, however, as an apology, though not an ex. ishing, after the 31st of December next, the right cuse, this argument, that the judges sent here were of judgment creditors applying for receivers? — Yes, men who had been long before the public, whose no doubt you will thereby remedy the existing evil; fame had built itself secure upon the discriminating but the question is, whether you do not leave the judgment of the profession before whom they prac- tenant open to an evil which is not quite so great, tised, and who could best test their merits ; they but which I have endeavoured to explain, namely, were men who stood out prominently, and who de- of proceedings by elegit creditors one after the served judicial elevation, and I, for one, should other; you might have half a dozen judgment cre. never desire an absolute rule of exclusion. If there ditors, the one proceeding against the other, renwere a fair interchange of judges between the two dering it impossible for the tenant to know to whom countries, I should rejoice at the introduction of he was to pay his rent. By Mr. Pigot's act, the reciprocal appointments ; but there was no recipro- party is enabled to take the whole of the land incity in the case. Your readers will remember that stead of the moiety. when one of the greatest lawyers of the Irish Bar, 1004. In what court would that elegit process be one of the inost eloquent members of the British instituted ?- In a court of common law; and I senate, whose name sheds a lustre on our profession have to make this observation that it may not be —when Lord Plunket was nominated to the high misunderstood; the effect of repealing or modifying office of the Master of the Rolls in England, to a certain extent, or altogether, Sir Michael the Bar of that country were so strong as to pro- O’Loghlen's act, and Mr. Pigot's act so far as it cure the withdrawal of that appointment. That amends it, would be to diminish the number of bar rejected Lord Plunket—we need not say how cases in which proceedings would be taken against great a man they rejected—and are we, members land ; and therefore benefit would be gained by of the Irish Bar, so degraded, that we must accept the modification of Sir Michael O'Loghlen's act. every gentleman of the English Bar that the govern- 1007. Supposing receivers to remain the same, ment may choose to nominate to our offices ? Mem- would you not think that there should be a limit in bers of the Irish Bar, this should not be. The Bar point of time, before which no judgment creditor of the richer country has not only appointments at should be entitled to apply for a receiver ?—I have home, which she altogether monopolizes, but ap- no doubt that that would be an important altera. pointments in every quarter of the habitable globe, tion. which she almost monopolizes, to your exclusion ; 1008. Would a year be a fair time to fix ?within her own metropolis she has courts of jus- I would not allow a party the day after he had obtice, which give to her members occupation much tained judgment to apply for a receiver, without more extensive and varied than you can ever hope giving his debtor proper time to realise a fund with to have, and rewards infinitely more dazzling than a view to pay him off ; I should say a year, by you can ever realize in your more restricted sphere; analogy to proceedings in a plenary suit, would be and yet, not content with her monopoly, she would a fair time. now rob you of the poor prize which is justly 1009. We have had Sir Edward Sugden before yours !

us, and he has expressed an opinion that, considerI advocate a principle-1 will not depreciate an ing the extent to which the law regulating judg. individual; had Mr. Hargreave actually attained ments has been carried both in England and in Irethe reputation which I feel satisfied he will yet land, it would be inexpedient now to go back and acquire, (though I should prefer its attainment in to entirely abolish the effect of judgments in Ireland his own arena), I should still state ny objections, as the common assurance, or materially to interfere on public grounds, to his appointment.

with the present practice, both as respects the ap1, at least, feel that I have done my duty in my pointment of receivers and the operation of judg. endeavour to evoke somewhat of professional, but ments in affecting the property to its full extent as much more of national feeling. If we have not the it now affects it; but he has suggested that instead spirit to assert our rights, we deserve our degrada- of going the whole length of the government bill, tion. Members of the Irish Bar, you should be which has lately been introduced, a line of demar. up and stirring; it is time to put a stop to this cation should be drawn with respect to the amount, system of things—it is time, high time, that you and that no judgment creditor prospectively, for a should be insulted no longer, at least that you debt under £100, should be entitled, under any should not submit to this insult tamely. The Eng- circumstances, or at any time, to apply for a relish Bar would not have“ our foremost man"_will ceiver ?-I should entertain a very strong opinion, you have one who, without disparagement, cannot that to that extent, at all events, it would be debe as competent as hundreds of yourselves?

sirable to go. A.

1010. Mr. R. B. Osborne.] Do you think £100 is high enough?-I should say not; I would rather go higher than that.

1011. Sir J. Graham.] Supposing the principle

were admitted that there should be a line of de- 1016. You think the state of credit, and the feel. marcation between smaller debts and larger debts, ing of the public mind in Ireland, would bear such As you fised your minimum high, you would re- an alteration of the law as that ?-It is difficult to strict the operation of judgments quoad receivers ? say that, but one of the reasons why I object to

I certainly consider that the Legislature has a assigning judgments is, that it is made one of the right to qualify the rights of creditors, to the ex- means of accumulating costs. If the Committee tent to which those rights are detrimental to the were to call upon me to prove what I am now about public at large; and I consider that one of the to state, I could not at the moment give evidence greatest grievances existing in Ireland, is the extent of it, but matters occur before me constantly which to which property is now under the Court of Chan- lead me to suspect the existence of facts which I cery.

could not positively prove; my belief is that attornies 1012. Do you think that the shock to public themselves get judgments assigned to some friend, opinion, by going the length of the proposal by and then issue a scire facias to revive the judgment government, and entailing the consequences of at the suit of this assignee, and costs are accumulated throwing partjes back upon their common law re- to the extent of that assignment; and even if the medies, would be great ?-I believe the govern- same attorney happened to have the beneficial in. ment propose to prevent judgments being assign- terest in three or four judgments, if he were inable in future. I confess I am disposed to agree clined to make costs, the course which he would in tbat, and for this reason, I think it is rather de- adopt would be this; he would get one of his judgsirable to make judgments cease to be a common ments assigned to A., he would get another judgassurance in Ireland. I know there is this advan- ment assigned to B., a third judgment assigned to tage arising out of their being a common assurance, C., and a fourth judgment assigned to D.; and he that you can purchase upon a sheet of paper a would present a petition to appoint a receiver at printed form of bond and warrant of attorney, the suit of the first party, he would present another which almost any one can fill up without the help petitition to extend the receiver at the suit of the of a barrister or an attorney at all, and so far there second, a third petition to extend the receiver at is a benefit in it. But on the other hand, the very the suit of the third, and a fourth petition to extend facility of obtaining that security works injuriously. the receiver at the suit of the fourth ; and the deThe man who signs his name to that document, cision of the court is given in ignorance and doubt very rarely knows the extent to which he involves whether those assigninents are bonâ fide, or whether bimself; and I think he would very often pause they are not made merely for the purpose of accubefore he would execute a mortgage, when he would mulating costs. have very little difficulty in signing his name to the 1020. What would be the effect of making the document.

law of assigment in Ireland identical with the law 1013. As relates to the limit in point of time, of assignment limited as it is in England - It would you would agree with Sir Edward Sugden, that be calculated to check the course which is adopted the period of a year should be fixed by act of Par- of making judgments a common assurance. At

liament, before a receiver should be applied for ? - present it is a most usual thing in Ireland to assign · I think it would be reasonable that if a person a judgment upon marriage; and parties assign judg

proceeded within a year, he should be left to his ments just as they assign mortgages in England; common law remedy.

in England judgments are considered as securities 1014. Would you prefer the government mea- which are not to remain outstanding, but in Ireland sure, which provides that judgments shall not be it is quite the contrary; they are considered as seassignable, and that after the 31st of December curities which are to remain outstanding. next, no judgment creditor shall be entitled to ap- 1021. Considering how long that practice has ply to the court for a receiver, or would you prefer obtained under the sanction of the law in Ireland, Sir Edward Sugden's proposition, that judgments and the delicate state of credit in that country, would should continue assignable, but that no judgment you be afraid of altering the law of assigning judgereditor should apply for a receiver until 12 months ments in that country?- There is no doubt that the elapsed, and that a line should be drawn with re- proceeding ought to be taken cautiously. I am ference to the amount; and that no receiver should rather stating my opinion in the abstract, than with be appointed for property under a certain amount, reference to the exact time at which the measure but that the law should remain unchanged with res- should be adopted. pect to all judgments above that amount ?- It is a 1022. What Sir Edward Sugden bas stated is, difficult question to answer what would be the com• that with regard to his limited plan restricting the parative effect of the two plans; but if I were at appointment of receivers to judgments of a certain liberty to give an indirect answer to the question, specified amount, and to allowing a year of grace, I would say that I should like to have a compound this is the particular monient when the change should of both. I should be disposed to repeal the Act be made; do you concur in that opinion ?- The which authorises the assigning of judgments, and opinion I entertain is this, if the measures now in try for the present the modified remedy that is pro- contemplation should be effectual to get property posed by Sir Edward Sugden, of preventing any out of Chancery, I think it is most desirable if posperson from obtaining a receiver unless the judgment sible to prevent property getting back again into exceeded a certain amouut.

Chancery; and of course any measure that dimi1015. And you would fix that certain amount nishes the number of applications for receivers will somewhat higher than £100 ?-I think I should. be a beneficial measure.

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