the Rolls in Ireland, but by the Masters in England, shall be disposed of by the Masters in Ireland. VI. The Lord Chancellor to assign to one of the Masters the exclusive duty of superintending the management of all estates subject to receivers in the said Court, and who shall be styled the "Auditor-general of Receivers' Accounts." VII. The Lord Chancellor and Lords of the Treasury to have power to authorise the appointment of such further clerk or clerks as may be found necessary in the office of the Auditor-general for a very effective system of book entries and other official management. VIII. The Lords of the Treasury to fix the salaries of such clerks, payable out of the Consolidated Fund. IX. The poundage of five per cent. now allowed to receivers to be paid in to the Accountant-general's credit as a fund for the following purposes: (1.) The Lord Cancellor to fix such amount of said sum as he shall see fit to be paid to each receiver, either by way of salary, or of allowance proportioned to his receipts. (2.) The Lord Chancellor out of said sum to allow payment to the sessional Crown solicitors for conducting all legal proceedings directed to be taken by the receivers at quarter sessions, &c. (3.) The Lord Chancellor out of said sum to allow payment of such salaries and other expenses as he shall see fit for two or more surveyors, who shall be at the disposal of the Auditor-general, to visit the estates and report their opinion upon all special applications requiring local observation. X. All the general regulations to be followed by the Auditor-general to be subject to the approval of the Lord Chancellor, XI. Any party who objects to any proceeding authorised by the Auditor-general to be at liberty to bring the same before the Lord Chancellor, by motion, who shall make such order in the matter as he may see fit. XII. Subject to the above approval and controul, the Auditor-general to have full power. Executors of Price, and others, } Hall and others, Defendants. in this cause, bearing date the gist day of June, 1949, I hereby require all persons claiming to be creditors of Nicholas Price, late of Saintfield in the County of Down, Esquire, deceased, the testator in the pleadings in this cause named, to come in before me at my Chambers on the Inns Quay, in the City of Dublin, on or before the First day of October next, and prove their respective demands, otherwise they will be precluded from all benefit under the said decree. Dated this 30th day of July, 1849. William Nevin Wallace, Solicitor for the plaintiff, 30, North Great George's Street, Dublin. JUST PUBLISHED, E. LITTON, ADDISON ON THE LAW OF CONTRACTS TREATISE on the Law of CONTRACTS, and Rights and Liabilities ex Contractor. By C. G. ADDISON, Faq. of the Inner Temple, Barrister-at-Law. Second Edition, 2 vols. 8vo. price £l i6, RUSSELL ON ARBITRATION. TREATISE on the Power and Duty of an ARBL TRATOR, and the Law of Submissions and Awards; with an FRANCIS RUSSELL, Esq., M. A., Barrister-at-Law. I vol. 8vo, d Appendix of Forms, and of the Statutes relating to Arbitration. £1 68. BAYLEY ON BILLS OF EXCHANGE. SUMMARY of the Law of Bills of Exchange, Cash Bills, and Promissory Notes. By SIR JOHN BAYLEY, Kot. Sath £1 25. Edition, by G. W. DOWDESWELL, Barrister-at-Law. I vol. So, BURGE ON THE LAW OF SURETYSHIP. COMMENTARIES on the Law of SURETYSHIP, and STANFIELD'S PRECEDENTS IN CONVEYANCING, (1.) To entertain all applications from head landlord for A COLLECTION of Copyhold PRECEDENTS IN permission to proceed for recovery of head-rents, together with Introductory Treatises upon the various transactions and gether with such other matters connected with the occurrences incident to Estates of customary tenure, &c. By JOHN F. management of said estates as may be from time to STANFIELD, Esq. 1 vol. 8vo. 12s. time referred to him specially by the Lord Chancellor QUESTIONS FOR LAW STUDENTS on the Second or Master of the Rolls. (2.) To sanction such outlay in repairs, improvements, or (3.) To grant such leases for terms not exceeding 21 years (5.) To make such regulations as he thinks fit as to the XIII. The Auditor-general to have full power to make -special orders for all purposes of this Act, either absolute in the first instance, or conditional, to show cause before himself within such time or upon such notice as he may fix in each case; such orders to have the same force as the like orders now made by the Court. XIV. The Auditor-general to exercise all such powers, either of his own motion, or upon the application of the receiver, or of any of the parties interested, and whether all or any of the parties consent or not. XV. No fees to be paid to any of the officers of the Court in respect to the lodgment of money, when ordered by the Auditor-general to be brought in for that purpose. XVI. The Auditor-general to allow receivers only such reasonable costs in respect to the passing of their accounts, and all other matters done by them, as he shall think fit, either generally or by special order in each case. XVII. The Auditor-general to appoint no individual as a receiver, when any other qualified person who has been already appointed a receiver in the same county is willing to Serjeant on the Laws of England. By JAMES STEPHEN, Esq. of the Middle Temple, Bar. rister at-Law. 1 vol. 8vo. cloth boards, price 10s. 6d. CONCISE FORMS OF WILLS, with Practical Notes. By W. HAYES and T. JARMAN. 4th Edition, cloth bds. 154. 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, 8vo. price 16s.-free by Post. the General Orders. By ALFRED M'FARLAND, Esq., Barrister-at-Law. A PRACTICAL TREATISE ON PLEADING BY REPORTS OF PRACTICE AND NISI PRIUS CASES, RIOR COURTS, and at the AFTER SITTINGS; with Index and (including Registry and Civil Bill Appeals,) DECIDED in the SUPE Table of Cases. By J. BLACKHAM, W. J. DUNDAS, and R. W. OSBORNE, Esqrs., Barristers at-Law. Part IV., completing Vol. I., price 5. BILL in the COURTS OF EQUITY in IRELAND; adapted to EDWARD J. MILLIKEN, LAW BOOKSELLER AND to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE All communications for the IRISH JURIST are to be left, addressed 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. LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL 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, 98. Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 5, Erish Jurist No. 48.-VOL. I. SEPTEMBER 29, 1849. PRICE Per Annum, £1 10s. {Single Number, 9d. The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows: LORD BROUGHAM has written to Sir James Graham a letter on the recent changes in the law of Bankruptcy, and he has stated what is a matter of sincere congratulation, that the Commissioners who have laboured for sixteen years, will be prepared next session to lay two bills before Parliament, in which our whole criminal law will be digested and codified. His Lordship observes "Since 1843, only two circumstances have oc. curred, which it is necessary to mention, touching the labours of the Commissioners. I presented in 1844 a bill for enacting a Digest of the Criminal Law, founded upon their valuable report. Lord Lyndhurst (then Chancellor) highly approved of the bill; but considering the great importance of the subject-considering also that from the nature of the thing, the work must be mainly executed out of Parliament, and required only to be adopted or sanctioned by the Legislature, he referred it to another Commission—that is, to the same Commissioners, with others added, to revise their labours. Accordingly a further report was made in 1847, and the Digest having now received a very full consideration, I again brought in a bill founded upon it, which in 1848 was referred to a select Committee of the Lords. As chairman of that Committee I addressed letters to all the judges of the three kingdoms, requesting their observations upon the Digest, submitting it to them, together with copies of all the reports upon which it had been founded. Waiting for the answers of these learned persons, I postponed to the next session all further proceedings with the bill. Again I presented it at the very beginning of the session just ended; again it was referred to the same select Committee, and again we anxiously expected the answers of the -: JOHN BLACKHAM, Esq., and Queen's Bench, includ- (FLORENCE M'CARTHY, Esq., and Exchequer of Pleas, in- (CHAS. H. HEMPHILL, Esq., and cluding Manor Court WILLIAM HICKSON, Esq., Bar judges. The session has, however, passed away, without any answer whatever from any of the English judges, though valuable suggestions have been communicated from those of the other two kingdoms. I conclude from this circumstance, that the judges of England are, generally speaking, satisfied with the Digest, and have no corrections to offer which they deem of sufficient importance to call for the consideration of the Lords. Meanwhile the far more arduous task has been performed by the learned Commissioners, of digesting into one body the whole law of procedure in criminal cases. This work, equally important and difficult, consists of 12 chapters, 47 sections, 1,180 articles. I have examined it with an admiration which I believe will be shared by every lawyer who studies it. Coupled with the former Digest of Crimes and Punishments, it gives us a complete code of the Criminal Law, and enables the Legislature of this country to escape the grave censure of not furnishing to the people the means of knowing what those laws are, which it commands them, under the heaviest penalties, to obey." His Lordship then details minutely the proceedings taken for the codification of the Bankrupt Act, of which he had the charge last session-the assiduity and pains taken with the measure by the gentleman (Mr. Miller) who prepared it-by the learned judges of the Bankrupt Court, to whom it had been submitted-by the Select Committee of the Lords-and by the writer himself; and deprecates very urgently the changes made by the Committee of the Commons. The pith of his Lordship's observations being, that in matters of this kind, where the subject has been considered and treated by competent persons-skilled workmen in the law-the act, the product of their skill, should, in its main features, be allowed to pass through Parliament untouched. This is a startling doctrine, and requires rather stronger proofs than his Lordship has adduced for our acquiescence in it. Great deference, undoubtedly, should be paid to the opinions of those who have bestowed their time, talents, and labour upon the particular subject submitted to them; but that the House of Commons should be the register of the edicts of the Lords, or the Lords of the Commons, is neither a very constitutional theory, nor a very advisable practice, whether the proposed edicts be on questions exclusively relating to the administration of the law, or subjects of general policy. We hope to return to the consideration of his Lordship's letter on a future occasion. SIR, To the Editor of the Irish Jurist. Perhaps you will add to the amount of obligation that you have already conferred on me, in admitting my last letter into your columns, by giving insertion to another on a different subject. It appears to me that the maxim "No man should be compelled to criminate himself," is pushed to an extreme that is reprehensible. currence. I have long been of this opinion, and my recent perusal of the course of practice pursued at some of our state trials which took place immediately before the Revolution of 1688, and for a short period after it, while the law was in a state of transition, and, therefore, unsettled, has confirmed me in my previous impression. We know that in cases of suspected treason, more particularly, the iniquitous practice of questioning prisoners, even by torture, for the purpose of extracting from them testimony against themselves, was no unusual ocA declaration, published by order of Lord Burleigh, in the reign of Elizabeth, set forth that torture, in order to obtain confession from persons under confinement, was applied "in as charitable (!) a manner as such a thing might be." This was the apology which that distinguished man offered for a cruel and barbarous usage, that was not abolished in the times of the Tudors. That torture was ever charitably inflicted will not be credited in these days, even on the authority of Lord Burleigh. It would be absurd to conceive that a fiendish act, essentially cruel and unjust because the extremity of pain," and the instant and almost irresistible desire of relief, may draw from the sufferer false accusations of himself or others"-could have been charitably or tenderly applied. When it became obsolete, or its exercise very infrequent, the torture was transferred from the body to the mind, and a prisoner was cajoled or menaced to acknowledge his guilt. Cases are recorded in which an Attorney General and a Chief Justice importunately advised prisoners arraigned for treason to confess their guilt, under threats of severer consequences if they did not. This was, after all, but another mode of administering torture. Neither the iron boot nor the thumb-screw was applied to a limb, but the mental organs were agonized. A very flagrant violation of judicial power is related in the case of Sir Nicholas Throckmorton, when under trial for treason, in the reign of Eliza beth. The Crown lawyer, Sergeant Standford, addressed him thus:-" Therefore, Throckmorton, since this matter is so manifest, and the evidence so apparent, I would advise you to confess your fault, and submit yourself to the Queen's mercy." "How say you?" asked Chief Justice Bromley. "Will you confess the matter, and it will be better for you?" In the succeeding reign, when Garnet was on his trial for aiding in the Gunpowder Plot, he was pressed by interrogatories from the bench, even in the presence of King James, to confess his crime, or, more correctly, to criminate himself, through the contradictory statements which those questions led him to make. It appears from Philipp's State Trials, that for some years after the Revolution, instances occurred in which both the judge and the Crown lawyers endeavoured to obtain from the prisoner, by crossexamination, evidence to convict him. This unjust practice became at length totally discontinued. But the opposite extreme of a usage, which, in my humble judgment, only became dangerous from its abuse, has led to results, fatal, in frequent instances, to the cause of justice. I have reprobated the practice of cajoling or menacing a prisoner to confess his guilt, and I now venture to condemn the opposite extreme. I find, among my papers, a memorandum which I took some years ago from a passage in the life of Sir Samuel Romilly, which supports my views of the subject under present inquiry. That distinguished lawyer had been, I think, considering the French system of examining prisoners in criminal cases, a system so entirely opposed to ours, yet one which, I would say, works effectively for the punishment of evil doers and the prevention of increasing crime. He observes: "It should seem, however, if the great object of all trials be to discover the truth, to punish the guilty, and to afford security to the innocent, that the examination of the accused is the most important and indispensable part of every trial." He was an advocate then for the principle of putting interrogatories to the accused, though he condemned the latitude which judges occasionally exercised in putting subtle and perplexing questions, to shew their own skill, and confound the accused person under examination. Of this abuse of the privilege of questioning a prisoner, the trial of Madame Lafarge is an instance. The limits of the juste milieu, which I consider necessary for the discovery of truth, were shamefully exceeded in the case of that criminal. "When a contest of ingenuity arises between the court and defendant, the temper and impar tiality of a judge are placed in too much hazard when he becomes the antagonist of the prisoner." I venture, however, to maintain, that the jealous avoidance, by the magistrate, of every thing likely to lead a prisoner to give evidence against himself, even though he were willing to tell the truth, is false in principle, and injurious to the interests of society. 1. It is false in principle. If I refer to the mo- important means of comparing his written deporality of the Bible, which I assume to be an inde- sitions with his verbal testimony when afterwards structible element in our legislation, I see that interrogated. A man falsely charged with a lying, directly, or indirectly, is a grievous offence crime, alleged to have been committed on a ceragainst God, and that the liar, and murderer, are tain day, and in a certain place, is usually eager placed in the same category of sin. Is not that, to answer any questions on the subject, expecting then, a false principle, which leads a judge to that his answers will establish his innocence; and caution a prisoner against pleading guilty to aa guilty man will evade interrogatories, fearing crime, which, from compunction of mind, or any other motive, he voluntarily acknowledges? If I consider the morality of that judicial practice, which sanctions the judge to recommend a priwho has entered a truthful plea of guilty, in of a crowded court, who, with the jury, presence have heard the avowal, to withdraw that plea, and substitute for it an undoubted lie, I discern at once the falsity of the principle under which the judge, influenced by tender feeling, leads the prisoner to record that lie-yet, not a lie which the recording angel, with a tear, blots out. Lying in self defence is not indictable by our human laws, and erring man is thus encouraged to declare, from his open lips, that he is a liar, and the truth is not in him. that his contradictions and lies, should be exposed by his inconsistent and conflicting answers. TRUTH, and JUSTICE, will not suffer from interrogating accused persons—and individual guilt will be more easily proved by it. soner, 2. It is injurious to the interests of society. By not interrogating a prisoner, we discard one of the most important means of eliciting truth, and thereby inflict a deep social injury. Allow me to refer to a familiar passage in Paley's Moral and Political Philosophy-"A maxim which deserves similar examination is this:'-"That it is better that ten guilty persons escape, than that one innocent man should suffer.' If by saying it is better, it be meant that it is more for the public advantage, the proposition, I think, cannot be maintained. The security of civil life, which is essential to the value and enjoyment of every blessing it contains, and the interruption of which is followed by universal misery and confusion, is protected chiefly by the dread of punishment. The misfortune of an individual, (for such may the sufferings, or even the death, of an innocent person be called, when they are occasioned by no evil intention,) cannot be placed in competition with this object-I do not contend that the life or safety of the meanest subject ought in any case to be knowingly sacrificed: no principle of judicature, no end of punishment can ever require that. "But when certain rules of adjudication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested; courts of justice should not be deterred from the application of these rules by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty. They ought rather to reflect, that he who falls by a mistaken sentence, may be considered as falling for his country, whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and upholden." I believe that we repudiate a very effective mode of promoting the ends of justice, and of reaching "those crimes with which the public are infested," and of dissociating "the innocent from the guilty," by the rejection of the French system, of interrogating a prisoner-in order to afford the The inconsistencies and involuntary admissions of a criminal, are often the only means of arriving at the truth. Circumstances, indeed, may be ingeniously imagined—and cases may have occurred in which the questioning of innocent persons, accused of a specific crime, may have led to their conviction of it. But such, extraordinary and very improbable cases which must assume that both judge and jury are deceived by false impressions, are such as, according to the argument of Paley, ought not to be admitted to operate in opposition to rules, the general effect and tendency of which is to promote and preserve the welfare of the community. I hope that the period is not remote, when that strong prejudice, which prevents Englishmen from appreciating the excellence of laws, or institutions, which prevail in other countries, will diminish; when what is really good in those laws and institions will be adapted to our social system-and England will adopt the Continental practice, of interrogating a prisoner-with modifications suited to our free constitution, and no longer persevere in the present system, which is repugnant to common sense, and favourable to crime. HOUSE OF COMMONS. M. D. William Tighe Hamilton, Esq.-June 29. (Continued from p. 352.) XVIII. But the Lord Chancellor to have power from time to time, according as circumstances may admit, to re move existing receivers and to appoint such persons as he shall see fit to be the receivers for such districts as he shall assign to them. XIX. The Auditor-general to decide on the amount of security to be given by receivers, and to investigate the solvency of all sureties; and the recognizances to be entered into before him. XX. (1.) The whole legal estate of owner to rest in the owner. (3.] Any tenant refusing to sign such deed, or to produce to the receiver the lease or instrument under which he holds, or to disclose the amount of his rent or arrears, to be deemed as but a tenant at will, and liable to be proceeded against as such on a quarter's notice to quit. (4.) The receiver to be a competent witness in all proceedings. I. All receiverships to be collected under one head. as an owner. NEW LAW BOOKS. BEST'S PRINCIPLES OF EVIDENCE, A TREATISE on the Principles of EVIDENCE and III. Receivers to be gradually consolidated, with a view A TREATISE on the Law of CARRIERS of GOODS to their being district public officers. IV. The receiver to have same powers to recover rent or posesssion as an owner. and PASSENGERS by Land and by Water. By S. K. ANGELL, Esq., Barrister-at-Law. 1 vol. royal 8vo, bds. 258. ROGER'S ECCLESIASTICAL LAW. V. The tenants not to be subject to greater hardships A Practical Arrangement of ECCLESIASTICAL LAW. than they would be under the owner.. VI. The system of accounting not to be as at present, a mere annual legal transaction conducted by attorneys, but a Second Edition, considerably enlarged. By FRANCIS NEWMAN ROGERS, Esq., Barrister-at-Law. I vol. 8vo. £1 168. PRINCIPLES OF EQUITY JURISPRUDENCE. continuous official one, carried on either with the receiver in THE Principles of EQUITY JURISPRUDENCE, em. person or through the medium of clerks. Abstract of accounts to be furnished, and balances lodged at least quarterly. VII. A variety of acts now done by the Master of the Rolls to be done by the Auditor-general, as being matters more for office inquiry than judicial decision, so as to save the great expense of proceedings in the Court. 1325. Chairman.] Is the abolition of the equity side of the Court of Exchequer a necessary part of the plan which you propose to remedy the evil?think it is, in this way; that I do not see how you can have a system for supervising estates, which should represent two Courts; I do not see how you can have two uniform systems, one existing in one Court and the other in the other. I do not think you can have one man representing two Courts, inas much as two Courts would probably take two different views upon questions that would arise upon the management of estates and other important questions. Therefore that question appears to me naturally to connect itself with the subject in this way, that I do not think you can have a proper system till you get all the estates under one head. 1326. Mr. R. B. Osborne.] What reason have you to suppose that one court would be a better means of managing estates than the other?-I have no reason to think that one court would be better than the other; but the far larger quantity certainly exists in the Court of Chancery, and that being the court of highest character in the country, and having the largest quantity of estates under it, I should say is the proper head. 1327. When you say that it is the "Court of the highest character in the country," do you mean with reference to its knowledge of agriculture?—No, but as to its power of carrying out any particular system I think you must depend entirely upon other means for agricultural knowledge. (To be continued.) The Right Honorable Henry John presented to me, that several of the Creditors on the Estates of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named, have neglected or omitted to come in and file charges on foot of their respective demands and incumbrances, pursuant to the decree of the 9th day of February, 1847, and that the time limited by and for the said purpose has expired, and that it is expedient to extend said period: Now I require all Creditors and Legatees of the late Right Honorable John, Earl of Portarlington, deceased, the Testator in the pleadings named, and also all persons having Charges or Incumbrances affecting the real and free. hold Estates of the said late Earl of Portarlington, to come in before me at my Chambers on the Inns Quay, in the city of Dublin, on or before Tuesday, the 20th day of November next, and proceed to prove and claim the same, otherwise they will be precluded the benefit of said Decree. E. LITTON. Dated this 30th day of June, 1849, John Warnock, Plaintiff's Solicitor, 30, North Great George's Street, Dublin. bracing the Concurrent, Exclusive, and Auxiliary Jurisdiction of Courts of Equity. By the Editors of the Law Students' Magazine, Ival 8vo, cloth bds. 13s. 6d. ADDISON ON THE LAW OF CONTRACTS. Appendix of Forms, and of the Statutes relating to Arbitration. By £1 6s. BAYLEY ON BILLS OF EXCHANGE SUMMARY of the Law of Bills of Exchange, Cash Bills, and Promissory Notes. By SIR JOHN BAYLEY, Knt. Sirth Edition, by G. W. DOWDESWELL, Barrister-at-Law. I vol. £1 2s. QUI UESTIONS FOR LAW STUDENTS on the Second Edition of Mr. Serjeant Stephen's New Commentaries on the Laws of England. By JAMES STEPHEN, Esq. of the Middle Temple, Bar. rister at-Law. 1 vol. 8vo. cloth boards, price 10s. 6d. CONCISE FORMS OF WILLS, with Practical Notes. By W. HAYES and T. JARMAN. 4th Edition, cloth bds, 158. 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 theret By J. E. WRIGHT, Esq. of the Inner Temple, Barrister.at.Law. 2 vola. royal 8vo. £2 10s boards, A 8vo. price 168.-free by Post. PRACTICAL TREATISE ON PLEADING BY BILL in the COURTS OF EQUITY in IRELAND; adapted to the General Orders. By ALFRED M'FARLAND, Esq., Barrister.at.Law, REPORTS OF PRACTICE AND NISI PRIUS CASES, (including Registry and Civil Bill Appeals,) DECIDED in the SUPE RIOR COURTS, and at the AFTER SITTINGS; with Index and Table of Cases. By J. BLACKHAM, W. J. DUNDAS, and R. W. Oso1st, Esqrs., Barristers.at-Law. Part IV., completing Vol. I., price 58. EDWARD J. MILLIKEN, LAW BOOKSELLER AND PUBLISHER, 15, COLLEGE GREEN, DUBLIN. |
