first understanding the nature of the business which they undertake to support, or being prepared to apply themselves to the conduct and control of it. An extension of this system of sleeping partnership, we believe, will not conduce to the steadiness and safety of trade. (7.) Because the law of limited liability will have the effect, as we conceive, of compelling creditors, contrary to their wish and to true policy, to bear a share in the liabilities of the concern, and especially, when those liabilities involve loss; whilst the exclusive management of the concern, and all the profits which may arise from it, are appropriated to other parties, and those the very parties who are thus relieved from a portion of the liabilities. (8.) Because limited liability cannot tend to diminish the probability of insolvency. It will relax, not strengthen, the inducement to prudence and to those efforts by which insolvency is to be prevented; and when insolvency does occur, it will have the effect of throwing a portion of the penal conse quences on parties perfectly innocent-to the relief of parties who, if any, are justly subject to blame for the mismanagement of the concern. 5. We think that partnerships, constituted as described in question 5, would not be beneficial to the community at large, and that they would probably be pregnant with danger to the parties so subscribing. We do not think there is now more hesitation and caution in taking up new concerns, than that which the doubtful character of those concerns fully justifies. The very supposition put in the question, viz. "that new inventions and patented discoveries would be more freely taken up under the protection of limited liability," points directly to the danger which we conceive attaches to the general principle, viz. that limited liability will promote the prosecution of new concerns, which the prudence at present generated by the sense of unlimited liability does not sanction. A facility for combining small sums in order to make up a capital sufficient to try the experiment of some new trade, founded upon a new invention or patented discovery, may be expedient; but we very much doubt the policy of stimulating such combination of capital by the privilege of limited liability. In proportion as the result of such experiment is doubtful and hazardous, care ought to be taken that such an amount of capital is subscribed at the outset, as shall be sufficient to meet and discharge all contingencies. In this proper precaution consists the true and legitimate protection to the shareholders, without injury or injustice to the creditors. Limited liability, if permitted, will become a substitute for this precaution, and, in the end, will prove, as we apprend, equally dangerous to the partners and to the creditors, that is the (9.) The constant expansion of trade, of which, during recent years, we have witnessed so wonder ful an illustration, in correspondence with the constantly increasing demands of society, seems to afford conclusive evidence that, in this country, capital is not banished nor enterprise paralysed by the law of liability as it at present stands; whilst the extent to which insolvency not unfrequently occurs is an indication of a sufficient disposition to encounter the risks necessarily connected with trad-public. ing operations. We think, therefore, that evil rather than good must be anticipated from any legislation which shall tend to increase the proportionate influence which is exercised upon trading operations by the hope of gain as compared with the apprehension of loss. By the conjoint operation of these two principles, as they are at present happily blended, we believe that the sound and healthy state of trade is best secured. 4. In partnerships, where the liability of the partners is in any form, or to any extent limited, it appears to us clear that danger of injury to credi tors must arise. (1.) Directly; from the absolute limitation of the right of the creditors to claim from the debtors the full discharge of the debts to the utmost extent of their means. (2.) Indirectly; from the diminished security which the creditors will have for the prudent and safe management of the concern, caused by the diminished liability of the partners to bear on their own account the whole amount of the evil consequences which may arise from mismanagement, and also from the danger of ambiguity and of fraud, which we think must arise in the attempt to define the extent of liability attaching to the limited partners, and to enforce a faithful discharge on their part of the liabilities to which the law intends to subject them. For these evils we can suggest no satisfactory remedy: we believe them to be necessarily incident to a law of limited liability. 6. We think it eminently unndvisable to sanction any alteration of the law, which shall have the effect of "attracting persons in humble life, not likely to be aware of, or to consider the risks of trade and speculation," to embark their little means in trading concerns, "each investing a small amount only." The first requisite for the steadiness of trade is, that trading concerns should be taken up and conducted only by persons, who are competent to understand, and estimate correctly, the risks of the trade in which they embark, and who can apply both attention and competent knowledge, to the due management of the concerns, with which they connect themselves. We cannot anticipate any advantage from the establishment of concerns, in which the capital shall be contributed by numerous persons in humble life, unconscious of, and unable to understand, the risks of the business in which they embark their means; whilst the uncontrolled management must be entrusted to other parties, acting under the influence, in all probability, of interests and motives very different from those of the parties whose funds are thus subjected to their control. (To be continued.) Just Published, price 7s. 6d., by Post, 88. THUELONA, Wether with UD GUTEN TO ANE OF SE NEW ORDERS IN CHANCERY. Just published, price 3s., by Post, 3s. 6d. THE GENERAL ORDERS OF THE COURT OF CHANCERY, dated the 31st of July, 1851, under the Chancery RIFFS, in relation to WRITS of EXECUTION and INTERPLEA- Index. By WILLIAM SMITH, Esq., Barrister.at-Law. By ROBERT W. OSBORNE, Esq., Barrister-at-law. Just Published, price 8s. 6d. Free by Post, Also by the same Author, price 4s., by Post, 4s. 6d., or, bound with the Orders, price 6s., by Post, 6s. 6d. TCAL COMMENTARY, CASES UPON, and FORMS ADAPTEI TO, EACH RULE. By EDWARD JOHNSTONE, Esq., M.A., Barrister-at-Law NEW LAW RULES. Just Published, price 103. 6d., free by Post, THE COAM ACT, HE COMMON LAW PROCEDURE ACT, and FULL INDEX, by WILLIAM D. FERGUSON, Esq., Barrister. at-Law. "Mr. Ferguson, in the very able and lucid work before us, has presented the profession and the public with an accurate representation of the law as it now stands."-Dublin Evening Post. 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As altered by the statute 14 & 15 Vic. c. 57, with an appendix of several statutes relating to the law between landlord and tenant and to the law of evidence; with a Commentary, comprising the decisions upon the re-enacted sections of the previous Acts of the Civil Bill code and the analogous sections of the County Courts Acts, (England) with a copious Index. And the Rules, Orders, and Regulations prepared by the Assistant Barristers, with Observations, &c. By JOHN BLACK. HAM, Esq., Barrister-at-Law. This day is published, in 4 thick vols, royal 8vo., price £7 7s, cloth, from the earliest period. Third Edition. 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, 98. FLEET.STREET, in the Parish of St. Andrew, and published at 15 Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45 COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin, Saturday, August 19, 1854. THE IRISH JURIST No: 296.-VOL. VI. AUGUST 26, 1854. PRICE, per Annum, £1 10s. NAMES OF THE CASES REPORTED IN THIS NUMBER. COURT OF EXCHEQUER CHAMBER-(continued): 897 403 It is high time for the Legislature to devise measures to prevent the continual recurrence of the errors which at present pervade public Acts of Parliament, and occasion such frequent embarrassment. We have recently discovered a most ridiculous blunder of this description running through those Acts, which, though from motives of public policy they are limited in their operation to the current year, ought not on that account to be the less carefully penned. We allude to the annual Mutiny Acts. It will be fresh in the recollection of our readers that the Irish Common Law Procedure Act (16 & 17 Vic. c. 113,) expressly abolished the plea of the general issue by statute. By section 69 it was enacted, "that so much of any Act of Parliament as entitles or permits any person to plead the general issue only, and to give special matter in evidence without pleading the same, is hereby repealed, except as to pending actions." This statute received the royal assent on the 20th of August, 1853, and of course the above sweeping clause operated as well upon the Mutiny Act of the year, which, as usual, had passed in the early part of the session, as upon the numerous perpetual sta ROLLS COURT (continued): COOPER V. COOPER; ELLARD V. COOPER. Practice-Vendor and Purchaser-Description by map-Misrepresentation-Eviction-Compensation-Fund in Court-Practice-Costs... ... ... ... CORK SUMMER ASSIZES: O'CONNOR, APPELLANT; O'CONNOR, RESPON DENT. Civil Bill-Service-Residence-Lodger -14 & 15 Vic, c. 57, ss. 65, 66.................... 404 408 tutes, which had from time to time conferred this privilege upon certain classes of official persons. Now it is not for one moment to be supposed that the Legislature intended sub silentio at the outset of the following session to trench upon their own handywork of the previous year. Had it been their view that the enactment in question was improvident, it is to be supposed that they would have introduced a repealing Act as general in its terms as section 69. What, then, was our astonishment, on scanning the Mutiny Acts of 1854, passed on 23rd March last, to find that the framers had done their duty so carelessly as to re-insert the common form of the limitations of actions clause, as used prior to the passing of the Procedure Act, and so in fact pro tanto to repeal the section alluded to. For example, in the 17 Vic. c. 4, (Army Mutiny Act,) it is enacted by s. 95, that “ any action which shall be brought against any person for anything done in pursuance of this Act shall be brought within six months, and it shall be lawful for every such person to plead thereto the general issue of not guilty, and to give all special matter in evidence to the jury which shall try the issue; and if the verdict shall be for the defendant in any such action, or the plaintiff therein beco ne non-suited, or suffer any discontinuance thereof, or if in Scotland any court shall see fit to assoilzie the defendant, or dismiss the complaint, tor, though specially adapted to and intended for that profession in England, contains a vast deal which is applicable to their professional brethren in our land. This is necessarily the case, for not only, in the absence of positive legislation, do the same principles govern analogous cases there as here, but the respective legislative enactments re and Ireland, though passed at different times, and not uniformly worded, are essentially similar. We may here be permitted to express the regret which we renewedly feel as often as our attention is directed to any comparison of the laws of the two countries upon any given subject, that such a di the court in which the said action shall be tried shall allow unto the defendant treble costs, for which the said defendant shall have the like remedy as in other cases, where costs by the laws of this realm are given to defendants; and every action against any person for anything to be done in pursuance of this Act, or against any member or mem-lating to the attorneys and solicitors of England bers of a court martial, in respect of any sentence of such court, or of any thing done by virtue or in pursuance of such sentence, shall be brought in some of the Courts of Record at Westminster or Dublin, or the Court of Session in Scotland, and in no other court whatsoever." We have transcribed this clause in extenso, in order that it may be seen that by ne-versity should be tolerated, and we therefore rejoice cessary implication the portion of it relating to the general issue extends to Ireland, inasmuch as not only are the courts at Dublin expressly referred to, but wherever it is assumed that the procedure in either country is peculiar to itself, as, for instance, in Scotland, this appears to be provided for. It is evident, therefore, that this clause was passed in ignorance of the recent change of the law in Ireland. The same blunder occurs in the 17th Vic. cap. 6, (Marine Mutiny Act,) sec. 85. It appears to us to be impossible to doubt but that the 69th section of the Common Law Procedure Amendment Act has been repealed or suspended to the above extent by the Acts to which we have referred, and that such was not done designedly. We are not now discussing the policy of particular provisions, but we are sure that all will agree that, whether a law be good or bad, it should be dealt fairly with. If it be beneficial, its repeal through the carelessness of the framers of the Act, which has had that operation, is a public misfortune greatly to be deprecated. If it be injurious, it should not be abrogated, save by the deliberate act of the Legislature. We trust the time is coming when some responsible officer or staff of officers will be appointed, whose duty it will be to see that the legislation of the kingdom is, at all events, intelligible and consistent. at the recent appointment of a mixed Commission of eminent lawyers, both English and Irish, for the purpose of consolidating the statutes, and we sincerely trust that assimilation, as well as consolidation, will be the result of their labours. With respect to the treatise before us, it appears to us to have been compiled in a neat and convenient form; and the author has judiciously, in place of entering into long disquisitions upon the particular subjects of which he has treated, and thereby swelling the bulk and costliness of his volume, contented himself with briefly enunciating principles, accompanied with references to authorities. He thus avoids that error which is so often fallen into at the present day by legal writers-we mean that of book-making. The aim of the work is thus concisely stated in the Preface, page v.: It is "to afford to attorneys and solicitors concise practical instructions as to the regulations, rights, duties, and liabilities which are peculiar to their profession, and to serve as a digested index and work of reference for members of my own branch of the profession, in the multifarious points which arise in court on the law of attorneys.” As we have already remarked, this book may be regarded as consisting of two parts, one containing matters relating to the profession generally, and the other specially applicable to the English branch. Under the latter head may be classed the Introduction, in which the writer treats of the origin, progress, and present position of the English body of practitioners; also Chapter 1, with reference to the qualifications of attorneys and solicitors; Chapter 2, with reference to their annual certificate, registration, &c.; and Chapter 3, concerning their suspension, disqualification, and re-admission. We do not mean to be understood, that the matter of these chapters is wholly foreign to us; but treating, as they do, chiefly of positive regulations, which have like an ordinary trustee; and the authority of an no force in Ireland, although we may have some attorney or solicitor, in private transactions, (such analogous rules, this part of the treatise, although as leases, mortgages, &c.) is very great.” suggestive, cannot be regarded as a guide to Irish practitioners. The remaining five chapters are, however, though more particularly intended for England, general in their application to both countries. These relate respectively to the office, functions, and duties of attorneys and solicitors, and their rights, privileges, and exemptions; to their liabilities and disabilities; the relative rights and liabilities incident to the business of an attorney and solicitor; and to proceedings by and against them for the reciprocal enforcement of their and their clients' mutual rights. Space will not permit us to enter at much length into details; but we think it due to the author to give an extract for the purpose of showing his style and method. Speaking of the general duties and liabilities of the solicitor in conveyancing business, (p. 161,) Mr. Pulling says: The author has, at pages 202-6, and 296-322, digested the provisions of 6 & 7 Vic. c. 73, (the English Attorneys and Solicitors Act,) sections 37-43 and 48, which Act, so far, almost entirely corresponds with our 12 & 13 Vic. c. 53, ss. 2-9. We are glad to find that Mr. Putling has not altogether ignored the decisions of the Four Courts, which be occasionally cites. He quotes Holmes v. Magrath, (5 Ir. L. R. 375,) as an authority with respect to the mode of heading a bill of costs, and, when treating of the important subject of lien, he appositely cites the well known case of Blunden v. Desart, (2 Dr. & Warr. 405,) in support of the proposition, that "a lien which has attached on titledeeds in the hands of a solicitor will not extend to cover costs incurred after the interest of the client has been determined." We confess, however, that our author has drawn on this source rather sparingly; and we trust that in his next edition, which "The general duties of attorneys, however, in the class of transactions we are speaking of, though we anticipate will in, due time, be called for, he differing from those which devolve on barristers, will incorporate a fuller selection of Irish cases. are strictly of a professional character. An attor- Mr. Pulling will permit us to add, that he appears ney in a purchase or a mortgage transaction, for to have overlooked a topic of some importance, and instance, undertakes to investigate only the legal which has of late been much canvassed in the Equity requisites of a title, and not, like a surveyor, its value. An attorney is, in the language of pleaders, Courts, namely, as to the claim of a solicitor who retained and employed in a mortgage transaction fills that character conjointly with that of trustee, to use due and proper care and diligence in and to remuneration or simple reimbursement for his proabout ascertaining the title; and secondly, to take fessional aid, and how far the general rule laid down due and proper care that the same should be a sufficient security for such repayment, i. e., a sufficient in the leading case of Robinson v. Pett, (3 Wms. 247,) security in point of law. Where, indeed, the attor- that a trustee, executor, or administrator shall have ney is employed to invest the money, and find the no allowance for his care or trouble, has been applied proper security, a different rule prevails; and of course, it is the duty of an attorney, as of every to the case of a solicitor invested with these functions. other agent, to apprise his employer of any peculiar We may, in conclusion, say that the work contains circumstance coming to his knowledge in the trans- an appendix of statutes, a good table of contents and action in which he is retained, e. g., the obvious insufficiency of value appearing on the title-deeds. analytical index, together with a table of cases; and Where, also, a transaction in which an attorney and it has been published in a very neat and portable solicitor is engaged, creates a combined case of form. We think that this little volume deserves agency and trust, he would be liable for any loss an extensive circulation. Encumbered Estates Court. CONDITIONAL AND ABSOLUTE ORDERS, ENDING 26TH AUGUST. |