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Irish Jurist

No. 51.-Vol. I.
OCTOBER 20, 1849.


Per Annum, £1 108,

{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, iu- (ROBERT LONG, Esq., and

Court of Exchequer SJohn BLACKHAM, Esq., and cluding Bankruptcy


A. HICKEY, Esq., Barristers-atJonn Pitt KENNEDY, Esq., BarAppeals...

Law. risters-at-Law.

Queen's Bench, includ- ( FLORENCE MCARTHY, Esq., and WILLIAM BURKE, Esq., and ing Civil Bill and Re-3 SAMUEL V. PEET, Esq., Rolls Court........ WILLIAM John DUNDAS, Esq., gistry Appeals..... Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in- S Coas. H. HEMPHILL, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court WILLIAM HICKSON, Esq., Bar.

and Equity Exchequer......

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

Common Pleas......

Robert Griffin, Esq. and W. G.

CHAMNEY, Esq. Barristers-at-law. Bankrupt Court...... { ROBOTEG, Esq. Barristers-at-law.

ROBERT GRIFFIN, Esq. and W.G. Admiralty Court......

CAAMNEY, Esq. Barristers-at-law,

DUBLIN, OCTOBER 20, 1849. far it is affected by the recent statute ; it will be

remembered that the point was decided by the Court

of Common Pleas prior to the passing of the Act. ONE section, introduced with very little appositeness

The section recites that “ doubts are entertained to the general subject matter of the first Incumbered whether, when a judgment affects lands in Ireland, Estates Act, 11 & 12 Vic. c. 48, has set at rest the and when the person entitled to such jadgment is important question as to the future effect of a release willing to release a portion of such lands in order of a judgnent over a portion of the lands of the to the sale thereof or otherwise, he can grant such cognizor.

release without nullifying the effect or validity of The case of Handcock v. Handcock, (10 Ir. L. such judgment upon the residue thereof, or any other R. 569, and 11 Ir. E. R. 472,) would have legally property which it is intended should remain subject decided the point, and determined whether there to such judgment; and whereas it is expedient that was a necessity for legislative interference. We are such doubts be removed, be it enacted, that the resatisfied that the Legislature was justified in not wait- lease of any portion of lands in Ireland from any ing for a decision of a court of law. We only regret judgment affecting the same shall not operate or be that they did not close the point by unequivocally construed to extend, or operate so as to nullify, or giving a retrospective operation to the Act. It will in any manner to affect the validity and force of such be a subject for judicial determination whether it judgment as regards the residue of such lands, or has that effect; and, if it has not, then the question any other property not specially released from such is still open as to all partial releases of judgments judgment, but that such judgment shall continue to prior to its passing.

affect such residue or other property notwithstandIn Handcock v. Handcock a case was sent from ing such release, in like manner and with the like the Court of Chancery to the Court of Common powers to enforce payment of interest and principal, Pleas

, where it was very learnedly argued, and the and to all intents and purposes as if such deed of members of the Court certified against the judgment release had not been executed." creditors, and that a release by then over certain

We have marked in italics the words that appear portions of the lands of the cognizor extinguished to us to show that the clause was intended to hava their remedies against the residue. The case came a future effect alone. back to the Court of Chancery, when his lord

Mr. Smythe, in his Commentary on the Statute, ship stated that he would have great difficulty in observes—“ There is nothing in the expressious acting on that part of the certificate, and before used, in the enacting clause, to prevent it extending doing so would probably take the opinion of another to releases made before the passing of the Act'; Court of Law. “ As this case must now go back to on the contrary, the terms of the enactment are the Master's office I will not say more at present sufficiently wide to include them. And it is clearly than that I am not prepared to follow the certificate a remedial Act, and should be construed so as on the second point, at least without further consi- most effectually to meet the beneficial end in view, deration. It is a question of very great importance." and prevent a failure of the remedy. On the other

So it unquestionably is, and as it has not received hand, a retrospective operation ought not to be a final decision it is deserving of consideration how I given to the Act. It is questionable, however,

whether it would be giving the Act a retroactive by the hasty legislation of the past session, which operation, to hold that it extends to releases made has disturbed, without settling it. before it passed."

An historical sketch of the rise and progress of The learned writer has so studiously guarded this mode of assurance, of its effect apon the landed himself in the expression of his opinion, that it is and commercial interests of the country, together difficult to determine to which side it inclines; he with a statement of the changes which have been states the doubt, and leaves it unsolved; we, how- lately made, of the different incidents attaching to ever, conjecture, that he is of opinion that the Act the different species of judgments, and a collection extends to releases prior and subsequent to its of the cases bearing upon each would, we should passing, because he considers it “questionable think, be very acceptable at the present moment. whether such a construction would be giving it a It would certainly, to the lawyer who has leisure retroactive operation,” and affirms, that “ there is to consider the subject, and somewhat of a philosonothing in the expressions used in the enacting phical turn of mind, be a subject of considerable clause, to prevent it extending to releases executed interest, as well as of considerable practical benefit before the passing of the Act."

to himself in the pursuit of his profession, and, if We entertain so sincere a respect for the sound-treated worthily, conducive to his future fame. ness of his judgment, that we arrive at a different The Irish lawyer, who desires literary distinction conclusion, with considerable distrust of our own, by the publication of law works has, unfortunately

, and, as we differ from what we assume to be his to earn it at his own expense, the present depressed opinion, we hope we have misinterpreted it; but state of the profession and of law publishing renderwe cannot read the whole preamble of the clause ing the authorship of any legal work of pretension without doing violence to the English language, or unremunerative. feeling impressed with the idea that it relates alone to future releases. It speaks of a judgment affecting lands in Ireland, and the owner of it,

HOUSE OF COMMONS. being willing to release a portion of such lands,

RECEIVER COMMITTEE. evidently refering to a future act by him, and William Macartney M.Cay Esq.June 29. where it speaks of retaining its validity it uses the words,“ which it is intended should remain subject

(Continued from p. 364.) to such judgment." In the whole preamble there

1534. That includes minors and all ?--It does. is not a single word referrable to the past, whilst It may be necessary to explain that it is with great every expression relates to the present or the difficulty we arrive at anything like certainty upon future. And the enacting clause appears to us this point, for there is no means patent to the pubstudiously confined to future releases; the future lic or to the profession of knowing the exact amount "shall,” is the operative word. Unaffected by the of property under either of those courts. Even with Statute, the question is one of extreme nicety, and the assistance of the return laid before Parliament

, we shall look forward to its ultimate decision with we can only approximate to it. The paper which interest.

I hold in my hand is an abstract of the return of the One of the judges of the Court of Common Pleas Court of Exchequer, which gives a rental of£155,402 was, we presume, absent during the argument, at a year, but that sum, I think, is much under the least he did not sign the certificate, and the other true amount, because it professess to give only those members of the Court adopted the ancient practice receivers who have passed their accounts

. The – better honoured in the breach than the observance Court of Chancery gives a return for each of the ---of returning their certificate without assigning years, 1844, 1845, 1846, 1847, of those receivers their reasons for the conclusions to which they had only who have passed accounts in those years

. Now arrived. When difficult questions are thus submitted the Committee are aware that the rule of account to Courts of Law it would be extremely satisfactory ing is, that when a receiver is first appointed he to learn as well the judgment as the process of rea- has 15 months to account, and that for each subsoning which led to it. And the wholesome practice, sequent account he has 13 months. But the introduced by Lord Mansfield, and sanctioned by sub- | Committee are probably not aware of another rale sequent general usage, of giving the grounds of his of the Court, that if the period for accounting happens opinion, would appear to exist as strongly now as to fall in the month of August, the time for accountwhen that ornament of our profession, by a series of ing is extended, without any application to the masterly decisions, delivered in the most perspicuous Master, to November, I think the loth of November

, and elegant language, laid the foundation of our so that in the case of a newly appointed receiver commercial code. And if the remark be generally whose time for accounting would expire in August, true, it would appear peculiarly applicable to cases it virtually gives him 18 months, and in the case sent by reason of their difficulty by the head of one of an old receiver it virtually gives him 16 months court for the advice and assistance of the collective to account, besides which the time for accounting wisdom of another. And yet in these instances alone is frequently extended by the Master

, so that ia our Courts of Law rest satisfied with an answer to those four years it is not likely that any receiver the questions submitted to their consideration, leav- has accounted more than three times. And taking ing to conjecture and in mystery the arguments and that as an average, there will appear a gross rental reasons which led to their opinion.

under the Court of Chancery of £903,883 in 1847, The present state of the law of judgments in which, added to that in the Court of Exchequer

, Ireland is extremely unsatisfactory, even as amended makes £1,059,285. That would be the result sup

. posing that there was the same number of receivers

in 1844 as in the other years; but that was not the 1548. Do you think the present system of accountcase, for many new receivers were appointed in ing a good one ?-Not at all; it is cumbrous, uneach of the following years, some of whom had only satisfactory, and expensive. accounted twice, and some only once, up to the 1554. Do you think the proceeding by attachdate of the return; and it must also be taken into ment against tenants is an efficacious remedy?_I consideration that this return could not give an ac- should think quite the contrary, except in cases where count of any receivers who have been appointed the tenant is a solvent person; it is difficult and since October 1846, for their time for accounting tedious to arrive at an actual attachment, and in would not expire in 1847. Therefore, for these very few cases is it operative. reasons, I add one-fourth and say, that in 1847 1556. How has the law which prevents the growthere was at the very least £1,300,000. a year. ing crop being distrained affected the receiver?-It Now Master Brooke has told the Committee, that is one of his difficulties. I believe it is very generally in his office the average amount of rental over which the practice for fraudulent tenants to assemble their he appoints receivers is £3,000. to £4,000 a week, neighbours by moonlight and cut and carry off the Taking it at £3,000. a week, it will amount in his crop before sunrise. office to £120,000. a year for the 40 weeks he sits. 1558. From what you have stated, does not it For the four Masters that would be £480,000. in appear that the receiver, to save himself, most 1848, and taking the half of that sum for the three frequently put the estate to the expense of statement terms gone by in 1849, it would make a total exceed of facts ? Certainly; if a receiver wishes to keep ing two millions of rental.

himself harmless, he must be almost reckless as to 1535. Assuming that there is now that amount expense. If the Master directs ejectments, the es. of rental under the Court, what is your opinion of tate pays for those ejectments. the cost per cent. at present paid for the manage 1559. Can you state to what extent in your opiment of that property ? -As nearly as I can estimate nion the property of Ireland is charged with incumit, I would say that it cannot be under 15 per cent. brances ?-_With respect to judgments it is very

1536. How much would that amount to per an- difficult to ascertain that, for although there is a num, on the gross rental you have named ?--Fifteen registry of judgments, a great many are registered per cent. upon two millions is £300,000.

and re-registered over and over again; but as to 1537. Do you mean to tell the Committee that mortgages, I find that in the ten years ending the £300,000. a year is now spent upon the management 31st of December 1847, the number of mortgages of these estates? – I do not think so, because the registered in Ireland was upwards of 7,000, reprewhole rental is not collected. I never knew the senting a principal sum of about £17,000,000, in rental of an estate under the Court of Chancery ten years, and in the same time there were regisfully collected. Mr. Henry Darley, an officer of tered jointures and annuities which affected rentals the Rolls Court, stated, as the result of his expe- of estates to the amount of half a million per annum. rience in the Rolls Court for many years, that no For that class of encumbrances alone it would take estate in the Court of Chancery ever yielded more a million and a half of rental to pay the interest upon than two-thirds, and in a great many cases not them; that is, for mortgages and annuities, without more than one-half the sum it would yield to the taking into account judgments that are not collateral owner of the estate if under his own management. with mortgages.

1538. Then what sum would you say is probably 1560. Have you examined the returns furnished now being spent on the management of these estates? by the Courts of Chancery and Equity Exchequer -Taking as the average that two-thirds of the as to the properties under their receivers, and can rental is received, 15 per cent. upon that would be you state what is the general class of properties under £200,000.

receivers ? -Generally a small class of properties. 1539. You say that 15 per cent. is the present 1561. What proportion of them are under £1,000 cost of management?-How do you calculate that a year?--About three-fourths in value are under 15 per cent. ? — There is the receiver's poundage, 5 £1,000. a year. per cent. Then the receiver's costs come to about 1563. Mr. R. B. Osborne.] Does that apply to 5 per cent. I came to that conclusion from a great both Courts of Equity ?-—There is a slight difference number of large estates which appear to be managed between them. In the Court of Chancery, fivein the most economical way as to costs. The sixths of the whole are under £1,000. a year, and great majority are small estates, which in proportion in the Court of Exchequer, three-fourths of the are much the more expensive. Therefore taking one whole in value. with another, I arrive at the conclusion that 5 per 1565. Chairman.) From your experience, do you cent. covers the receiver's costs, I estimate the whole suppose that those very small cases are cases of cost at 15 per cent. at least, including the plaintiff's judgments? I would suppose so. In the Court of and owner's costs, in relation to the manageinent Chancery I classified 1,000 estates, the accounts of the estate by the receiver, the passing of his ac- for which were passed in the year 1847 and the count, and applications to Court.

latter part of the year 1846. [The number of estates 1540. Have you known numerous instances where and accounts passed in 1847 did not amount to t exceeded 15 per cent. ?-Many; many where it 1,000; they amounted to about 800] Of those has exceeded the rent of the estate.

1.000 estates. 812 were under £1,000 a year, and 1546. Is it your opinion that a more direct mode 178 above £1,000 a year, of the 812 estates, 626 of communicating with and directing a receiver were under £500 a year, and 186 above £500. a vould be desirable ?--I should say it would be most year. Then of the 626 under £500 a year, 117 esirable.

did not amouut to £300 a year, 170 did not amount

said Decree.

to £200. a year, and 164 did not amount to £100.

IN CHANCERY. a year. I found that in the latter class there were Henry Cavendish Johnston,

PURSUANT to the Decree many as low as £30. or £20. a year, and some as low The Rev. Samuel Henry Mason,

made in this cause, tearing date Eliza Ada Mason, and others,

the 14th day of June, 1849. I hereby as £15, a year. The 178 estates above £1,000, a


require all persons having Charges are year are thus classed; 113 under £2,000, 31 under the said Defendant: Samant sent Houses ise the top £3,000, 12 under

£4,000, 8 under £5,000, 15 above and Street, Dame Street. and camden Street, in the city and come £5,000, of which some are as large as £24,000, Dublin, to come in and prove the same before me, on or belade

day of November next, otherwise they will be precluded the benefit of the a year.

(1576. Is it considered the duty of the receiver Dated this 13th day of September, 1819. in creditors' suits, to look to the good cultivation of Thomas Picton Reede, Plaintiff's Solicitor,

W. BROOKE the land, or to see that the tenants observe the co

15, St. Andrew Street. venants in their leases ?— Theoretically it may be,

NEW LAW BOOKS, but not in practice.

BEST'S PRINCIPLES OF EVIDENCE, 1582. Do you consider the system of letting by the Court and the tenure to be injurious to the A TREATISE on the Principles of EVIDENCE and estate? -Most injurious; it is calculated to prevent tary Rules for conducting the Examination and Crow.etuhin elemento

Witnesses. By W M BEST, A, M. LL.B., Barrister at Law. I vel, St. a tenant improving his land; he is not certain even cloth, 18. of seven years' tenaney; if the cause terminates his

ANGELL ON THE LAW OF CARRIERS, tenancy terminates; no tenant would be likely to A TREATISE on the Law of CARRIERS OF GOODS

and PASSENGERS by Land and by Water. By S. K. ANG L expend money in improving the land.

Esq., Barrister-at-Law. I vol, royal 8vo. bds, 25s. 1583. Did you ever know of a tenant on a seven

ROGER'S ECCLESIASTICAL LAW. years' lease, under the Court, to lay out money in improving his holding?---I know of but one instance, | A Practical Arrangement of ECCLESIASTICAT, LAW. and in that case the effect was that the tenant took ROGERS, Esq., I vol. 8vo, £i 16, the land again; it was a rent exceeding £300. a year

PRINCIPLES OF EQUITY JURISPRUDENCE, and he had to pay £80. a year increased rent, from THE Principles of EQUITY JURISPRUDENCE, en.

bracing the Concurrent, Exclusive, and Auxiliary Jurisdictions competition.

Courts of Equity. By the Editors of the Law Studente Magazine, Imol 1587. What alteration do you think ought to be svu. cloth bds. 136. 6. made in the mode of managing those estates?-I ADDISON ON THE LAW OF CONTRACTS. would say that the object should be to bring the A TREATISE on the Law of CONTRACTS, and Rights management of them as nearly as possible to the Inner Temple, Barrister-at. Law. Second Edition, 2 vols. Sto. price of this manner in which a private gentleman would insist

RUSSELL ON ARBITRATION. upon his agent managing his estate.


TREATISE on the Power and Duty of an ARBI.

TRATOR, and the Law of Submissions and Awards; with an 1588. Do you think that there ought to be

Appendix of Forms, and of the Statutes relating to Arbitration. By power of expending part of the rents in improving FRANCIS RUSSELL, Esq., M.A., Lax. Trad. fra al

£1 6s. the property ?-Decidedly; there should be a power

BAYLEY ON BILLS OF EXCHANGE to do that which a wise landlord would do for his SUMMARY of the Law of Bills of Exchange

, Cash Bils

, own estate; the word “ improvement". I think, Edition, brom, W. 'DOWDESWELL, Barrister-al-Law: "I'val. For scarcely conveys an idea of what we mean in Ireland £125. by improvement; it requires a sun to be expended

BURGE ON THE LAW OF SURETYSHIP, upon land to prevent it from getting worse, to keep COMMENTARIES on the Law of SURETYSHIP, and it from deteriorating; we should rather call it BURGE, Esq. Q C. M.A.&c. 1 vol. 8vo. 186. "maintaining;" you may go on improving land to any

STANFIELD'S PRECEDENTS IN CONVEYANCING extent, but there is a sum which is really necessary COLLECTION of Copyhold PRECEDENTS IN to be expended in maintaining and to keep the land gether with Introductory Treatises upon the various transaction

CONVEYANCING, arranged for general and ordinary use, ts. in heart; and that class of expenditure I think the occurrences incident to Estates of customary tenure, &c. By JOHN Y.

STANFIELD, Esq. I vol. 8vo. 128, receiver should have the power to make, such as

UESTIONS FOR LAW STUDENTS on the Second draining; very often a large tract of land is covered with water, and deepening the bed of a river, which of England. By JAMES STEPHEN, Esq of the Middle Temple, Bu. would cost but a few pounds to do it, would carry rister at-Law. 1 vol. 8vo, cloth boards, price 105. bd. off the water; very often tenants are put to serious


By W. HAYES and T. JARMAN. 4th Edition, cloth bds. In inconveniences by having very bad roads through the

EDWARD J. MILLIK EN, LAW BOOKSELLER (AND lands; that class of improvement ought to be done; PU. LISHER, 15, COLLEGE GREEN, DUBLIN it would give employment to the people, and would stimulate their industry; I have heard gentlemen All communications for the IRISH JURIST are to be ki, addressed talk about the right to spend creditors' money in GREEN. Correspondents will please give the Name and Addres, as the

to the Editor, with the Publisher, E, J, MILLIKEN, ES, COLLEGE such things; I do not take that view of it; it you columns of the paper cannot be occupied with answers to Anonymous

Communications nor will the Editor be accountable for the fetuin

et do not give some employment upon the estates in Manuscripts, &c. Ireland you will increase the poor-rates upon those

Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL. estates, and those poor-rates will become the first LEGE GREEN, or by lettet (post.paid), will ensure its punctual deliver

in Dublin, or its being forwarded to the Country, by Post, on the day w charge upon the estate; so that the creditor is publication. injured in that way.

TERMS OF SUBSCRIPTION_(payable in advance): 1597. Mr. R. B. Osborne.) You were the person Yearly, 30s. Half-yearly, 17s. Quarterly, s. who principally drew up the suggestions which are

Printed by THOMAS ISAAC WHITE, at his Printing Office, No , embodied in this paper before the Committee ?- FLEET-STREET, in the Parish of St Andrew, and published at

MILLIKEN, residing at the same place, all being in the counts of the
City of Dublin. Saturday, October 20, 1949.


Frish Jurist

No. 52.- Vol. I.
OCTOBER 27, 1849.


Per Annum, £1 108.

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. J Bandar Long, Esq.,

Court of Exchequer

John BLACKHAM, Esq., and

Joux Pitt KENNEDY, Esq., Bar-

A. HICKEY, Esq., Barristers-at

Law. Appeals............. risters-at-Law.

Queen's Bench, includ- (FLORENCE M'CARTHY, Esq., and WILLIAM BURKE, Esq., and ing Civil Bill and Re SAMUEL V. Peet, Esq., Rolls Court........ William John DUNDAs, Esq., gistry Appeals...... Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in- ( Chas. H. Hempull, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court William Hickson, Esq., Bar

and Equity Exchequer ....... 3 William Hickson, Esq., Bar

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

Common Pleas....


{ ROBERT GRIFFIN, Esq. and W.G. Bankrupt Court.......

ROBERT Griffin, Esq. and W.G CHAMNEY, Esq. Barristers-at-law.

Admiralty Court......

CHAMNEY, Esq. Barristers-at-law.


It has been apprehended that the Act will drop still-born for want of purchasers, but unquestion

ably the inducement to buy under this tribunal is We give in a Supplement to this Number the Act the greatest ever yet offered. for the Sale of Incumbered Estates, together with

Certainty of title, and no expense of investigatthe General Orders published on the 18th instant; ing it. If there were no glut in the market, it is and we purpose to offer such observations on both plain that sales under this court should bring from time to time, as may suggest themselves to us higher sums than those made by private contract or as useful. We should have given the Orders last by the established Equity tribunals. The purchaser week, but no authentic copy had been then pub- bids for the estate, and deducts comparatively lished.

nothing from the purchase-money, on the score of We shall also give rapid and carefully prepared costs of title. If, then, the supply could be regureports of the cases decided by the Commissioners. 'lated, so as not to deluge the market, so far as the In this Number we shall only touch upon the gene- Act is concerned, it confers a benefit upon the ral character of the measure in its complete form, owner who may anticipate a surplus--if, indeed, one of the boldest experiments short of an entirely there be any such owner now in Ireland -and if new code of real property, ever attempted.

not upon him, upon the puisne creditor, and that That it will be very generally tried, the nature in two ways-diminishing the cost of bringing the of the measure itself, and the depressed and in- article to sale, and enhancing its value when cumbered circumstances of the landed proprietors brought. leave little room to doubt.

One of the gravest objections urged to the meaAnd yet, before taking the plunge, the owner or sure was, that the interests of creditors and of incumbrancer should consider, because—another remainder-men would not be sufficiently protected, new feature in legislation—once taken, there is no and that in the desire to give “ currency to land,” receding ; by the 48th general order, which is as the rights of those who had claims upon it would binding upon the suitor as a statute, “no petition be sacrificed. shall be withdrawn or dismissed without the leave

Unquestionably the powers conferred upon the of the Commissioners."

Cominissioners are very arbitrary, and in a foriner The seller is offered these advantages, that when. article we ventured to suggest that, in order to ever an incombrance affects the inheritance, the preserve uniformity of design, they would act pruproperty can be sold, and an indefeasible title given dently by leaving the suitor as unshackled in his to the purchaser; that the costs of the judicial sale mode of operation as possible. The general orders are certainly so much less than they would have carry out our views on this point ; they are numerbeen under a decree of a Court of Equity, by the ous, but they relate principally to matters of form saving of office fees, and probably very much less and of routine. That which prescribes the mode by the diminished number and length of the plead- of proceeding is the 5th order, and directs “ that ings—if indeed, the proceedings under the new proceedings shall be commenced by petition, to be court can be called pleadings; and the further boon addressed and framed according to the forms to be is proffered, that those costs shall form the first

approved of by the Commissioners, and every such charge upon the fund.

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