my reach, but I think he was favourable to the French jury system. If I be correct in my recollection, I have no mean authority on my side. From our experience of human nature, it is too much to expect that twelve men will agree in opinion even on any ordinary point-how much less reasonable is it to expect their unanimity in cases of a complicated character, and in which various collateral interests may be involved. Is it not wiser to calculate for and provide against the probabilities of diversity of opinion among thinking and free men? I would remind you of the wise reflection of the Emperor Charles V., after his long experience of the complicated workings of the human mind, and the various springs by which it is influenced-"It is not wonderful that men cannot be induced to think and act in harmony together, when I cannot get even these two watches to keep the same time precisely." If the catalogue could be placed before us, of those criminals who have been 1288. Do you think that that difficulty arises from let loose upon society from want of unanimity the impossibility of getting proper persons to take among the juries before whom they were tried, and those small receiverships, or does it arise from your if a table could also be laid before us, showing the want of power to ascertain who are proper persons? precautions taken (unavoidably in some cases under-No; I think it arises more from the difficulty of the existing system) by sheriffs to exclude men whose single voices would have rendered trials nugatory, I feel satisfied that the modification of the jury law, to which I have solicited your attention, would not be considered undesirable. 1286. Will you state what that calculation is?— There are 9,442 upon a rental of £159,000. Then it must be determined by the rule of three, how many will be upon a million rental. 1287. You have already mentioned that you have no very satisfactory means of testing the fitness of those persons to be receivers. How does that difficulty arise? In the first place, when it is referred to me to appoint a receiver, I have no possible means of knowing whether the individual proposed is a proper person or not, for this reason, that perhaps he lives in the county of Kerry, and he is the only person proposed. If one says to the parties, "There is a very good receiver on such and such an estate near," the answer which is invariably given to me is, that such a person will not now undertake a receivership, such is the disadvantageous position in which a receiver is placed; and it becomes impossible in that way to have any selection. I have the honour to be, HOUSE OF COMMONS. RECEIVER COMMITTEE. M. D. William Tighe Hamilton, Esq-June 29. (Continued from p. 344.) getting a proper person, than the want of power supposing he existed, because we certainly have the power of appointing whomever we think fittest. 1289. In the case of receivers appointed over large properties have you the mears of obtaining fit persons and of ascertaining their fitness?—I do not think more so. It is a matter which, in fact, is very much left to the nomination of the parties interested. 1291. What power would you require for the purpose of satisfactorily discharging that duty?—I do not think I should require any additional power if all the rules and regulations with respect to the management of estates and the mode of accounting were of an unexceptionable character, because I think in that case there would be a great number of perfectly competent persons willing to undertake the receivership, and one would have a choice, instead of being confined to the party most interested often in exhausting the estate. 1292. In what way would you suppose that the evil with regard to the difficulty of getting proper persons to be receivers would be most effectually met? I see no mode of doing it, except by having certain fixed ascertained persons as standing receivers, who should be authorised to act in every case where a receiver was to be appointed. 1284. Sir J. Graham.] Is that one-nineteenth of the area or one-nineteenth of the rental?-Onenineteenth of the area. The way I make it out is this: the modern poor-law valuation is 13 millions; but that is not the sum to be compared with a million of rental, otherwise it would be one-thirteenth of the whole country. What is called the old valuation of Ireland is generally considered 20 millions, and that is a valuation taken at the same time and under the same circumstances under which these rents which constitute this rental under the Court of Chancery were fixed; therefore the million rental, as it exists now, is to be compared with the twenty millions. Then inasmuch as demesne lands, for which receivers are seldom appointed, and lands for which fines have been paid for leases, must be 1294. Supposing you could get fixed ascertained deducted from that, so as to make the comparison persons selected by the Chancellor to discharge the a fair one, and which we may take at about one mil-duty under that system, why could not they be had lion, the receiver rental would make about one-nineteenth of the whole country. 1285, Chairman.] Have you any notion of the number of tenants under the Court?-I could not say as to the million of rental, but I can give it to the Committee as nearly as possible from 300 estates, which I have examined, and then by the rule of three one might make a very near approximation to the whole. 1293. In whom would you vest the selection of those ascertained persons?—I should vest it unquestionably in the Chancellor. now in the case of large estates? I think there is a very strong feeling growing out of the risks and liabilities to which receivers are subject, and that till something is done to make the system more regular and more satisfactory few persons will undertake receivership. 1295. Is not it in the power of the Court, by arranging the matter of the liability of receivers, so to adjust its rules with regard to receivers as to get rid of the objection?—It is such an immense subject 1296. What specific interference on the part of the Legislature do you consider would be proper and necessary in order to effect the reform that is required? With respect to the receivers themselves I should say that there ought to be a power in the Chancellor to consolidate the existing receiverships into districts, so that ultimately without doing any violence to vested rights and the interests of parties more or less dependant upon their receiverships for their income and support, you might approximate in a very few years to the still more perfect system of having a receiver for every county, or part of a county, as an efficient public officer. upon the present system, but I should rather look Robert Malcomson, and IN CHANCERY. Robert Shaw, Plaintiffs. PURSUANT to the De cree of her Majesty's High Court of Chancery in Ireland, made in this cause, bearing date the 28th day of June, 1810, 1 hereby require all Creditors of the late Richard Crolly Labarte, of Clonmel, in the County of Tip ing Debts, Charges, and Incumbrances affecting all that and those the perary, deceased, and persons hav Lands of Bally william, in the County of Cork, and Thomastown, other. wise Ballythomas, Caraclough, otherwise Ballyclough, Knockragrara, and Kuockanenaffrin, otherwise Moss Hill, and the Woodlands of cart. lea, situate in the County of Waterford, in the pleadings in this cause mentioned, to come in before me, at my Chambers on the Inns Quay, Dublin, on Monday the first day of October next, and proceed to prove the same, otherwise they will be precluded the benefit of said decree, Dated this 8th day of September, 1819, E. LITTON. Matthew Anderson, Solicitor for the Plaintiffs, No. 2, Inns Quay, Dublin, For MASTER MURPHY, 1297. Is not there great difficulty in this way, that causes now in the Court may be passing out of it, and that the estates under the Court are constantly varying; is not there therefore great difficulty in appointing a permament officer of that kind?-All experience is against a great deal of shifting, because when once an estate goes into the Court of Chancery and a receiver is appointed over it, it very slowly A TREATISE on the Law of CONTRACTS, and Rights leaves it. But that consideration belongs to every system of receivers. JUST PUBLISHED, ADDISON ON THE LAW OF CONTRACTS, and Liabilities ex Contractor. By C. G. ADDISON, Esq. of the Inner Temple, Barrister-at-Law, Second Edition, 2 vols. 8vo. price £116, RUSSELL ON ARBITRATION. A TREATISE on the Power and Duty of an ARBI. 1298. Do you think it is right to provide for the continuance of that system by having a permanent staff under the supposition that the estates are to remain under the Court of Chancery?-Clearly so, because there will always be a large quantity under SUMMARY of the Law of Bills of Exchange, Cash Bills, the Court. and Promissory Notes. By SIR JOHN BAYLEY, Kat. Sizth Edition, by G. W. DOWDESWELL, Barrister-at-Law, I vol. Svo, £1 2s. BURGE ON THE LAW OF SURETYSHIP. the Rights and Obligations of the parties thereto. By WILLIAN BURGE, Esq. Q C. M.A. &c. I vol. 8vo. 18s. STANFIELD'S PRECEDENTS IN CONVEYANCING, CONVEYANCING, arranged for general and ordinary use, t. Occurrences incident to Estates of customary tenure, &c. By JOHN F. STANFIELD, Esq. 1 vol. 8vo. 12s. 1302. Do you think that there might be substantial improvements made in the node of receivers accounting?—I think nothing can be worse than the COMMENTARIES on the Law of SURETYSHIP, and present system of receivers accounting; they are under no constant controul. The account is a mere legal transaction, which is only brought into court A COLLECTION of Copyhold PRECEDENTS IN by a summons; and if the parties, for any particu-gether with Introductory Treatises upon the various transactions and lar motive, do not choose to call the matter on, it might stand over for years upon years. In addition to the case which I mentioned just now of a nine QUE years' account, it is a common thing to have an account of three, four or five years. If the parties are interested in keeping the thing back, it may go on for a great length of years longer. 1303. Do you think that it would be desirable that the receiver should be obliged from time to time to deposit in some neighbouring bank the monies as he got them?-I think it would be a very essential part of a better system that he should send in monthly, to whomsoever was the head of the department, an abstract of all his proceedings; and that the amount he had received should be lodged monthly, or perhaps quarterly, as might be thought best. 1304. Supposing he was obliged to deposit the money from time to time as he received it, and to give an abstract monthly or quarterly, and that at certain intervals he should be obliged to give his report upon the condition of the estate under his management, and that when he was passing his general account with the officer it should be verified by affidavit, do you think those would be great improvements?—I think those would be great improvements UESTIONS FOR LAW STUDENTS on the Second Edition of Mr. Serjeant Stephen's New Commentaries on the Lawi of England. By JAMES STEPHEN, Esq. of the Middle Temple, Bar. rister at-Law. I vol. 8vo. cloth boards, price 10s. 6d. CONCISE FORMS OF WILLS, with Practical Notes. By HAYES and T. JARMAN. 4th Edition, cloth bds. 151. THE LAW OF HUSBAND AND WIFE. A Treatise on the Law of Husband and Wife as respects Property, partly founded upon Roper's Treatise, and comprising Jacobs' Notes and Additions thereto. By J. E. WRIGHT, Esq. of the Inner Temple, Barrister.at-Law. 2 vols. royal 8vo. £2 10s boards. EDWARD J. MILLIKEN, LAW BOOKSELLER AND All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications--nor will the Editor be accountable for the return of Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 17s. Quarterly, 9s. Printed by THOMAS ISA AC WHITE, at his Printing Office, No. 4, 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 beiug in the County of the City of Dublin, Saturday, September 15, 1849. Erish Jurist No. 47-VOL. I. SEPTEMBER 22, 1849. SPer Annum, £1 10s. PRICE (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: Court of Chancery, in- (ROBERT LONG, Esq., cluding Bankruptcy Appeals....... and WILLIAM BURKE, ESQ., and CHARLES HARE HEMPHILL, Esq. Bankrupt Court...... {ROBERT GRIFFIN, Esq. and W.G. CHAMNEY, Esq. Barristers-at-law. DUBLIN, SEPTEMBER 22, 1849. In considering the Encumbered Estates Act two points suggest themselves as subjects for consideration. The first connected with its policy. The second with the practical working of the measure; what it proposes to effect, and how? Its policy, though a very legitimate subject for discussion, ceases to be of practical importance to the lawyer further than as a key to the meaning of the Legislature. Whilst the measure was passing through both Houses of Parliament we freely discussed that policy; we expressed ourselves as not satisfied of the expediency of establishing a new tribunal at a great expense to the country, and which, if designed to act on principles of equity, must be the Court of Chancery in other hands; and that we should have preferred the adaptation of that court to the emergencies of the country rather than the institution of a new one invested with powers of the most arbitrary nature, and established on the assumption that the Irish Court of Chancery was inadequate to the management of the real property of Ireland. That court has been well abused, and we have ourselves not failed to point out reforms which were necessary for its renovation, and for the public good, more especially with reference to the management of estates under its controul; but we knew that it had within itself the power of expansion and modification, and that with little assistance from the Legislature it was perfectly adaptable to all national real property exigencies. We considered it unwise to bring an organised, ancient, and, generally speaking, efficient tribunal into disrepute by its being superannuated or superseded. We cannot omit the able defence lately made for it by one of its former most distinguished heads-Sir Edward Sugden Court of Exchequer Chamber........ JOHN BLACKHAM, Esq., and Queen's Bench, includ- (FLORENCE M'CARTHY, Esq., and CHAS. H. HEMPHILL, Esq., and risters-at-Law. on the occasion of giving his evidence before the Receiver Committee. "I believe there is a great misapprehension about the Irish Court of Chancery. I believe the Irish Court of Chancery to be as capable of administering justice speedily as any court that ever existed. When I left Ireland you could have a case in Chancery decided more quickly than you could have an action at law tried; the court waited for the causes, not the causes for the court. No unnecessary refe rences were made to the Master, but every point that could be, was disposed of at the hearing. Judgment was never delayed." But whatever may have been our predilections, they did not render us insensible to the reasons and motives which actuated the framers of the act now under consideration. The introduction of a new tribunal had not only the charm of novelty, but the more important charm that it had no popular prejudices to encounter; there were no ancient reminiscences of Chancery tediousness, delay, and expense to overcome. A new tribunal, which charged no fees, except those incurred for actual outlay, which had no arrear of business to clear off, and but a single duty to perform, and which could confer a Parliamentary title, possessed considerable attractions to buyer and seller. We do not, therefore, wonder at the experiment, which, if it failed, was not productive of the mischief of disturbing a settled court practice for an emergency which it was to be hoped would pass away, and if successful was capable of being happily blended with the established tribunals of the country. We are sufficiently creatures of circumstances to accommodate ourselves to the change, and to consider the act fairly and impartially. We are quite willing to believe that patronage, though possibly a small item in the scale, was not a determining point in favour of a new court. We are quite willing to concede that the measure was passed in its present shape for worthier purposes than the appointment of three Commissioners; one of those appointments shall be mentioned before the conclusion of this article. Nor can we forget that the former act, the working of which was placed under the management of the Court of Chancery, proved a failure; but this arose from intrinsic and extrinsic causes. It was at first a very lame dog, and the general orders did not help it over the stile. The national policy of the measure is summed up with sufficient clearness in the preamble, "that it is expedient that further facilities should be given for the sale and transfer of incumbered estates in Ireland." In that expediency we acquiesce, and turn to the measure to see to what extent those facilities are afforded. The emancipation of estates from embarrassment is designed to be complete; the incumbrance, by section 19, must affect the inheritance, or a term of not less than fifty years, and in the latter case, have been created by the owner of an estate of inheritance; the object of the Legislature being that the entire interest may be sold. No incumbrancer of a tenant for life can apply under the act for the sale of the life-interest, nor for the sale of an estate pur auter vie, where there is no covenant for perpetual renewal. Where the life-interest is severed from the inheritance, the purchaser of the former-an estate of such limited duration has no permanent interest to improve; and, the object of the act being the acquisition of an entirely new race of proprietaryif that cannot be obtained, its powers are not allowed to be called into operation at the instance of a life incumbrancer, who must therefore still resort to a Court of Equity. This limitation will operate to some considerable extent, but with its exception any owner from the tenant in fee to the tenant by the courtesy, and any incumbrancer from the mortgagee in fee to the annuitant (whose annuity has been allowed to fall in arrear, and for the arrears of which a Court of Equity would direct a sale) may apply and obtain an order for a sale, except in cases where the owner shall be enabled to shew that no receiver nor incumbrancer is in possession of the land, and that the interest of the incumbrances and amount of the annual charges do not exceed one half of the net yearly income; the decision of the Commissioners to be final on these points, which in truth, involve no more than questions of fact. This clause was inserted at the instance of the House of Lords. to work out the details by which the former are to be carried into actual operation, and to impose exact limits upon the holders of powers, when the words by which they are conferred ate of the largest possible signification. In the extinct act, the directions which the Court of Chancery was to pursue, were elaborately, though sometimes not very clearly stated; in the living one the Commissioners are left an almost untrammelled discretion. By sections 10, 15, and 51, they may bind and loose, they may make and unmake, they may cancel and re-enact, they may alter, they may vary, they are tied by no precedent, they are bound by no rule, save during the continuance of a general order, which they have power to rescind substituting another in its place, subject to alteration by the Privy Council; and we believe that tribunal, partly composed of Peers, Soldiers, and Commissioners of National Education, will not interpose an active interference. Nay, so unlimited are the powers of the new Commissioners, that when there are no general orders, or they are inapplicable, (inapplicable!!) they can act according to their own discretion, and their judgments are final, unless they are pleased to allow an appeal from their own decisions. They are not subject to a Court of Equity, nor to a Court of Common Law, to writ of injunction, nor to writ of mandamus; the Court of Chancery is their vassal, in their own sphere they are omnipotent, and that sphere comprehends all the incumbered estates of inheritance in Ireland. We trembled when we came to the words, " "at the discretion of the Commissioners ;" the words of Lord Camden rushed to our memory-" The discretion of a judge is the law of tyrants; it is always unknown, it is different in different men, it is casual and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature is liable." The temper of the laws of England is retrograding; the appellate jurisdiction is year by year be coming restricted; judges are more frequently than of old vested with final power; the rights of person and of property are less jealously guarded by us than by our forefathers; and we regret this, be cause we know no check more effective in making judges do their duty, and no greater safeguard for the public, than the suitor's right of appeal ez debito justitiæ. We select the present instance to state our opinion, both because the finality of the decisions of the Commissioners is a leading feature of the Act, and because we can do so without offence. From the temper of those of the Commissioners whom we know, we feel satisfied that in their hands there will be no abuse of power. Our dislike is to the principle; we have no dread of the hands to whom the power has in this instance been confided. The most cursory perusal of the Act proves the very large powers with which the Commissioners No one who has read the former measure, and are entrusted, we do not say, if ably exercised, unthe present, can fail to be struck with the remark-wisely intrusted. We should have wished a right able absence of detail in the one before us. It is comparatively easy to state general principles, and to confer arbitrary powers, but extremely difficult of appeal to a properly constituted tribunal, but as the spirit of the Act is so arbitrary, we venture to suggest to them, in order that everything may be in character, to observe as much latitude as possible in their general orders, and as they are unrestricted themselves, to leave the suitors tolerably free also. The general orders under the late Act imposed so many restrictions, and so much preliminary trouble, which did not devolve upon a plaintiff in a Court of Chancery, that no incumbrancer would resort to it when he had the option of filing a foreclosure bill: the Commissioners should remember that the incumbrancer still has that option, and that they should in some degree invite suitors. The Act has done much to insure the acceptance of the invitation; it gives the Commissioners many advantages which the Court of Chancery does not possess; their court is open to all comers both owner and incumbrancer-the Court of Chancery to the latter only-without the payment of office fees, and although the Commissioners are empowered to make such orders as to costs as they shall see fit, yet the costs are the first charge upon the purchase-money. See section 30. This provision renders it tolerably certain that the Act will be operative. The construction given to the Sheriff's Act as to the priority of the costs of appointing a receiver, induced many a puisne claimant to present his petition; so here where the costs are tolerably safe, and no undertaking to redeem prior incumbrancers required, we predict that, except the general orders paralyse the effect of the section, applications will be numerous, and that the rooting out of incumbered proprietors will be effected. We cannot conclude these observations without adverting to a letter which appeared in this journal from one of our correspondents, which deprecated the appointment of Mr. Hargreave: the communication has excited considerable public attention, and been much quoted and commented upon. We enter fully into the national and professional views of the writer; but we can assure Mr. Hargreave that our objection to him is grounded on no personal cause, and on no narrow spirit of exclusiveness, but simply because we believe his nomination to be an injustice to the Irish Bar, and the re-establishment of a sys tem which we had hoped was struck down for ever. There should either be reciprocity of appointments between the two Bars, or the preserves of each should be strictly guarded. Either the leading men of the Irish Bar should be eligible to English judicial appointments, or, if not, neither should the leading men of the English Bar be eligible to Irish. We should prefer investing the Government with the power of selecting the best men of both countries for the judicial offices of both, that so out of the wider range they might secure the best men for the best places. But this practice has never been even professed, and never acted upon. English offices are closed upon us with the most jealous exclusiveness, and the opposite practice is now carried to such an extreme, that a very junior member of the English Bar is placed in a very responsible judicial office over the heads of some of the oldest and most deserving members of our body. We do not censure Mr. Hargreave for taking the appointment-its emoluments to him are probably not as considerable as those derived from the lucrative branch of the profession to which he had devoted himself—it was an advancement which it would have been absurd in him to have rejected, but we think Her Majesty's Government could have selected a gentleman of our own Bar more suited to the office from professional standing, and a knowledge of the peculiarities of the laws of this country, whose appointment would have carried more weight with the public, and given no shock to professional opinion, whilst they could in England or in the colonies have discovered a more permanent place for Mr.Hargreave as a reward for his services in the preparation of the Act-if in fact it be attributable to his pen, report has ascribed the merits of it to another person,-or for those other qualities which entitle him to judicial eminence. We can scarcely conceive a greater contumely to the members of the Irish Bar than the exaltation over their heads of an English barrister, not yet of five years standing, and whose practice-being exclusively confined to conveyancing-has never placed him in the position of addressing a court of justice. We are almost weary of endeavouring to infuse a degree of public spirit into the Irish Bar. When the Hugenot leader, Montgommery, was condemned to death, and informed that his children were degraded to the condition of villainage, his observation was truly noble; "If they have not the virtue of nobles to raise themselves again, I consent to their degradation." We paraphrase the sentence, "If our Bar have not the virtue to raise itself, we consent to its degradation;" when once it loses that high place in public estimation which it used to hold, the shorter its Decline and the sooner its Fall the better. HOUSE OF COMMONS. William Tighe Hamilton, Esq.-June 29. (Continued from p. 348.) what might be the best remedy for some of these 1316. Have you turned your attention much to acknowledged evils?—I have; I have considered it very much, having to do with a great many differinterested in the subject. Perhaps the Committee ent receivers and other persons who are very much would wish me to hand in a sketch of the heads of a Bill which I drew up a short time ago. (The witness handed in the following Bill.) HEADS of a BILL to provide for the BETTER MANAGEMENT of ESTATES under the Court of Chancery, and to establish a Uniform System of Equity Jurisdiction in Ireland. 1. The jurisdiction of the equity side of the Court of Exchequer to cease, and all equity proceeings now pending in the said Court to be transferred to the Court of Chancery and continued there, as was done in England in 1841. See 5 Vict., c. 5. of Chancery at once. II. The Government to appoint a fifth Master in the Court III. The Government, on recommendation of the Lord Chancellor and Lords of the Treasury, to have power to authorise the appointment of a sixth Master hereafter, in case it shall be found necessary. of Chancery now paid by fees, to be hereafter paid by fixed IV. All the Masters, clerks and other officers in the Court salaries, and the fees to be collected by means of stamps. V. The Lord Chancellor to have power to make orders that such matters as are now disposed of by the Master of |
