Erish Jurist

No. 14.-VOL. I.

FEBRUARY 3, 1849.

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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 :—

A considerable portion of the present article was prepared for last week's publication, but was obliged to be held over from want of space. It was our intention to have presented, in the same number, our view of the probable working of the Act for the Sale of Incumbered Estates, now that the General Orders have rendered it complete. Believing that the professions would find those General Orders useful, we had directed them to be printed in extenso. Unfortunately, the compositor, after they had been corrected, when arranging the matter into pages, transposed some lines in page 93, which made the first two paragraphs of that page unintelligible, and, when discovered, there was no time to amend the mistake without delaying the publication of our last number, to the disappointment of our subscribers.

We regret that this error was committed, and, as the best amende in our power, will present them with a corrected copy, which shall be forwarded to each on Monday next.

We would ask them to remember, that at the outset of the career of every man, and every publication, there are difficulties to be overcome, and early struggles to be borne, and on this occasion to award to us a generous and kindly indulgence.

Some three months ago, we stated our opinion that very few sales would be made out of the Court of Chancery under the Incumbered Estates Act, and we still believe that opinion to have been correct. With reference to sales by order of the court, the act presents two very different aspects; when viewed with respect to incumbrancers, its operation is limited precisely to that class least likely to resort to it; and we adhere to our opinion, that so long as they have the power of selecting their equitable remedies, they will prefer the beaten track of filing bills, via trita, via tuta. We have

Court of Exchequer

Chamber.......

Queen's Bench, includ-
ing Civil Bill and Re-
gistry Appeals.....
Exchequer of Pleas, in-
cluding Manor Court
and Registry Appeals.
Common Pleas ....

..........

JOHN BLACKHAM, Esq., and
A. HICKEY, Esq., Barristers-at-
Law.

FLORENCE M'CARTHY, Esq., and
SAMUEL V. PEET, Esq.,
Barristers-at-Law.

CHAS. H. HEMPHILL, Esq., and
WILLIAM HICKSON, Esq., Bar-

risters-at-Law.

{ROBERT GRIFFIN, Esq., Barris

already pointed out some of our reasons for arriving at this conclusion.

We understand the first five of the General incumbrancer or owner. Orders to apply to every petitioner, whether he be No. I directs every petition to be verified by affidavit. Now, a plaintiff in an Equity suit is not required to do this on filing his bill. Whether it would be a better principle that he should be obliged to make such an affidavit, is not the present question; but the non-necessity for doing so is certainly a privilege, and in favour of a plaintiff. He is allowed to ransack and lay naked the heart of the defendant-to file fishing bills-to put his case in every imaginable form of language that the ingenuity of his counsel may devise to make positive assertions for the purpose of discovery, and even, if maliciously inclined, literally to torture his opponent by searching interrogatories, whilst he himself has the privilege of being a non-juror. Wherever, then, there is a question to be litigated, or likely to be in any way disputed, or in which the rights of an incumbrancer can be facilitated by the answer of a defendant, the incumbrancer will still adhere to the old practice.

General Order No. 2 requires that the deponent shall depose not only to the truth of the several matters in the petition, but to the absence of their being any person having any estate or interest, or any incumbrance or charge on the land or lease, other than the persons named in the petition; and in the third order, which applies solely to incumbrancers, the petitioner is directed to state the uses or limitations, and the trusts to which the land stands limited (in fact, the order must have directed this, the act having previously done so), and the name of any person who, to the knowledge or belief of the petitioner, has any estate or interest in the lands or lease in the petition mentioned, but the petitioner is not to be allowed any costs or expenses for searching the registry.

The fourth order applicable to incumbrancers,

such petitioner was not a person authorized by the statute to present such petition.

case would the petitioner be a person authorized to present his petition? Would he run the risk of having his undertaking put in force, when he runs no such risk by filing his bill.

We again suppose a case of disputed priority, and the petitioner to be postponed; in such case, would he not run a similar risk, and will he do so? Again, the hardy incumbrancers who venture on the untrodden ground have to remember that it has not yet been smoothed by judicial decision, and that the pioneers must clear the way at much trouble, cost, and expense, for their more fortunate successors.

directs a statement that the schedule to the petition annexed contains a true and correct list of all incumbrances and charges, and the names of the several We suspect few incumbrancers will like to give persons entitled thereto, and the sums due thereon, this undertaking, which implies, too, a doubt of and that there is not, to the knowledge or belief of the power of the court to make any order it thinks the petitioner, any incumbrance or charge, save just. Suppose an incumbrancer, who believes those set forth in the schedule. The petitioner is, himself the first, presents his petition, and suppose however, not to be allowed any costs for searches. the owner of some charge, which has lain dormant This and the preceding provision, as to costs, are so long as to have been believed extinct, suddenly not to apply to any searches which may be directed to start from his fabled slumber into living existby the Master to whom the petition may be re-ence, and be reported the first creditor; in such ferred. Now, an immensity of trouble is thus thrown on the petitioner, which he is not obliged to take if he file his bill. It is sufficient for him to state A. B. C. D. respectively claim some interest in the lands, but what that interest may be, is immaterial to him, provided they are puisue to his claim; it is enough to bring them before the court, and then they may guard their own rights. An incumbrancer will not take trouble without a corresponding benefit. Neither can we see the precise object of requiring the petitioner to make such statements and affidavit. If he does not make searches, the information he gives the court must necessarily be imperfect; if he does, he may not be allowed for them; and he is in this unfair dilemma, either to give the court no information, being in no position to give it-and in that case may have his petition dismissed-or if he give perfect information, to run the risk of paying the cost, of so doing. His petition, if we understand the scope of the orders, will not be adopted by the Master, as in the case of an owner, and therefore is just as useless, when an order of reference has been made on it, as a bill after a decree to account. All the accounts, all the real work, in fact, must be done in the Master's office. How can an incumbrancer be expected to state, not only each incumbrance, but the sum due upon it, with any approximation as to accuracy, or for any useful purpose?

Again, General Order No. 3 regulates that the fees and costs shall be the same as those allowed on similar proceedings in any cause or matter pending in the court. Now, we do not profess to know the practice of the taxation of costs, or the scale of fees, but we believe that no fee is, as a general rule, allowed for the preparation of a petition by counsel. If this be so, the proceeding under this act being by petition, no fee will be allowed on taxation. The petitioner must, therefore, either dispense with the assistance of counsel in the preparation of a petition infinitely more troublesome than the preparation of a bill, or pay the fee out of his own pocket, or trust to the Taxing Master's discretion for its allowance. The fees to solicitors are much less liberal on filing petitions than on filing bills. We believe that most suitors would desire and require the advice of counsel, and so would the solicitor, who would otherwise have much responsibility cast upon him. General Order No. 5 requires that every petition shall contain an undertaking by the petitioner to submit to such order as the court may think proper to make, in the event of its appearing, on any inquiry to be directed under the petition, that

In making these observations, we mean to find no fault with the Orders, we speak only of their effect. We believe them to have been prepared— an attentive perusal shews us that they have-with great care, but we think that they are obviously framed to facilitate owners rather than incumbran cers, and, considered with regard to the owner, we think both Act and Orders have conferred a most important boon on him; for the first time in the history of our jurisprudence there has been happily devised a judicial course of proceeding which will enable him, if honest, to sell his estate rapidly, cheaply, securely.

We have little doubt-exclusive of the expense of searches, which must vary according to the length and complication of the title-that an owner whose case is straightforwardly stated in his petition can free himself from incumbrances affecting his property by a sale of a portion of it at a very inconsiderable expense. The proceeding by him is as follows-his petition is to state concisely and clearly the nature of his title, and to have annexed in one schedule, the incumbrancers in their priority, and the sums due to each, and in the other a rental of the estate. This petition, carefully prepared, will carry the owner through the court. The Master is at liberty to adopt it, the creditor, if he sees his debt properly scheduled, cannot-except at the risk of paying his own costs—and indeed has no need to disturb or alter it. This was a very happy idea. The business in the Master's office is thus considerably reduced.

Where the owner is seized of an estate of inheritance in possession, the direction of a few advertisements, and the preparation of a report, the echo of the petition may comprise it all.

Where the owner petitioner is tenant for life, we do not observe any General Order regulating the practice as to remaindermen, minors, or persons under disability, and their rights become of extreme importance where the petition seeks to have a previous contract for sale carried into effect. And although in simple cases the adoption of the peti

tion in the Master's office is an excellent innovation on the present practice; in more weighty ones, where priorities are disputed, the expense of taking out a voluminous document by each disputing creditor will be considerable. An extract from it would not, in many instances, be sufficient, or, at least, culling the precise points would require more time, perusal, and discretion, than a solicitor in extensive practice could afford unpaid to give.

The advantages to the owner are, however, great, the power of apportioning head rent, of having the land sold discharged of unredeemable charges are in themselves very important benefits.

hitherto been an instrument of destruction to proprietors, may be converted into their effective and efficient ally.

THE practice of lodging money in court has been lately considerably modified both in the Courts of Queen's Bench and Exchequer. Formerly a defendant could at any period before trial, or without notice to the plaintiff, pay money into court, and the latter, on the very eve of trial, was often taken by surprise by the service of the rule. The payment was frequently made so late, that litigation was not checked, and the plaintiff had not the opThe act under our consideration affords abundant portunity for reflection as to the withdrawal of his evidence of the difficulty of making the transfer of record. All his expenses had been incurred, and land easy, and, at the same time, of preserving when he was so far committed-as occurred in the future interests unimpaired. Real property cannot case of Greene v. Coughlan, where he only had be made to pass from hand to hand like a bale of notice on the very day of trial, at a country assize merchandize, and be also made the subject of town-he would most likely proceed to the end. family settlement. This act was compiled with The Court of Queen's Bench, finding that the genegreat care. The bill was originally introduced ral rule of 1834 did not provide for such a case, last into the House of Lords by the Lord Chancellor of term made a rule that no order should be given for England in the session of 1847, and again in that of liberty to lodge money after plea, without the special 1848; the measure underwent considerable discus-order of the court, or a judge, upon application for sion in the House of Commons, and was subjected to extensive alteration, and little improvement. Its avowed object was to give "currency to land," to facilitate its transfer, and yet, though it does effect important changes in the law, and confer a boon on incumbered proprietors, its operation will be, as respects them, but partial, and, as respects incumbrancers, almost a dead letter. In seeking to effect the object of simplifying titles, and superseding the present practice of judicial sales, it should not be overlooked that litigation will not be thereby diminished, it will perhaps be increased in a duplicate ratio, first taking its turn at the land, and then at the purchase money.

We would deprecate the idea that we write from a spirit of hostility to the principle of the act, on the contrary we are friendly to it, and lament its necessarily restricted operation. In dealing with a complicated system like ours, with a due and tender regard to existing interests, the wisest and most experienced legislator will find no ordinary difficulties around and about his path, difficulties the largest experience cannot at once devise means to overcome; the end, however, though not yet reached, is attainable, and unquestionably, so far as owners are concerned, this act is a move onwards.

Hitherto the Court of Chancery has been justly feared by proprietors whose estates have been so unfortunate as to require its interference; always appearing there as defendants they have generally sought to baffle and protract the plaintiff, in the vain hope of extricating themselves before a sale. But there was "no luck in leisure," their object, furthered by the tediousness which has hitherto appeared inseparably identified with Chancery proceedings, was gained to their ruin, and the wasting away of their estates, deteriorated and disimproved by an absentee Chancery Receiver, and by the accumulation of costs. The sale came at length, and left them-if their longevity survived it-in their "old age naked to their enemies." Let us hope that a new era has arisen, and that what has

that purpose. The motion must be on notice; at least the practice is so settled in the Court of Exchequer, who, on Thursday, refused an application for liberty to lodge money, where no notice had been served. The notice must also undertake to pay not only the costs of the action incurred at the time of the lodgment, but any further costs the Court may

direct.

Whilst the Courts thus guard the plaintiff from being taken by surprise, they are equally stringent in depriving him of costs, if he persevere in his action after the lodgment, and be unsuccessful. In such case he will disentitle himself to the entire costs of the action, whether incurred previously to the payment of money into court, or afterwards.

This point was first decided in the Exchequer, and has been ruled in the same way in the Queen's Bench, in the case of Kershaw v. Lindsay, reported in a previous number, p. 31, the discussion of which occasioned the promulgation of the rule to which we have adverted.

The practice now stands on a very intelligible footing; the plaintiff is allowed full opportunity of considering whether he will proceed further, and if he does so advisedly, he must be prepared to lose the costs of the action, if he be unsuccessful, and to consider the cause of action on which the money has been paid, as if it had been struck out of the declaration altogether.

Hilary Term, 11th January, 1849. At a council of the benchers of the honourable Society of King's Inns, this day holden at their Chamber, at the Four Courts, it was unanimously resolved-"That the call of Richard Dunn to the rank and degree of a barrister-at-law, in this society, be forthwith, and it is hereby vacated, and that he be, and he is hereby disbarred, and that his name be struck out of the books of this society."

Thursday last, Pierce Mahony, Esq., was sworn in Clerk of the Crown, in the room of Walter Bourne, Esq., deceased.