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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:

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DUBLIN, MARCH 10, 1849.

FROM the Shannon westward to the Atlantic lie the five counties comprising the province of Connaught Galway, Leitrim, Mayo, Roscommon, and Sligo, blessed with as fertile a soil, on the average, as perhaps any district of equal size in the United Kingdom, and occupied by a laborious and frugal population. Previously to the blight of the potato in 1845, and the following years, this province yielded a rental of nearly one and a-half million sterling annually; it is now steeped in the most wretched destitution and poverty, and, far from being able to yield this rental, is now scarcely able even to support the population existing on its surface.

However, though this extremity of misery is, no doubt, attributable to the failure of that food on which too exclusive reliance was placed, it must not be forgotten that the distress and degradation of this province is not of recent growth; and its origin must be sought for in sources which were in existence, while the potato was in full and luxuriant health.

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scape chequered with luxuriant crops of potatoes and corn, and the green hills covered with cattle, might feel surprised how such poverty could exist in the immediate neighbourhood of such apparent wealth-how it was that the labourer was deemed apparently unworthy of his hire; and he would be tempted to exclaim, with Virgil,

"Sic vos non vobis, fertis aratra boves!" Whence arose this state of things? Whence arose this apparent want of affinity between the labouring population and prosperity? The practice of leasing large tracts of land to middlemen, aggravated very much the evils which were probably found pre-existing. The rapid increase of population, without any corresponding increase of employment, by which labour might be absorbed and labourers supported, made the possession of small farins necessary for the existence of the population. The competition for these small holdings carried their value in the market to an extravagant height; and, to enable them to hold possession of them, the occupiers were obliged to be contented with the meanest kind of food, and the coarsest kind of clothing. Middlemen-and proprietors following their example-found it more profitable to From a very early period, the miserable state of stock their lands with people than with cattle; the Connaught had grown into a proverb.. In our latter required to be well fed, well housed, and conown recollection of it, even in prosperous times, stantly attended to; the former required and reit contrasted very unfavourably with other, and ceived no attention or care, and were found proless fertile, parts of Ireland. Its naked and un-fitable directly in proportion to the degree of misery sheltered plains, covered with a net-work of rude single stone-walls, dividing the country into irregular patches, miscalled gardens-its unsightly hovels frequently mere holes cut into the ground or bog-covered with what are called "scraws," exhibiting whole families living in darkness, squalor, and smoke-its uneducated and uncared-for population-its dirty and stunted towns, whose chief ornament consisted of a barrack and a gaol, attracted the attention and offended the eye of a stranger, who, at the same time, observing the land

in which they could exist.

To prevent infinitesimal subdivision of land, several acts against sub-letting were passed, which, however, remained-as far as regarded the greater part of the province-a dead letter on the statutebook. These enactments were an effort to remove the symptoms without touching on the source of the disease. In a fertile and but half cultivated district, when the population was not half what it is now, there should have been little difficulty in finding employment for the labouring poor.

How

ever, unfortunately at that time, the state of the law of landlord and tenant acted as an effectual bar to outlay by middlemen, who were only anxious to make what money they could of their lands during their leases, and leave them at their expiration of as little value as possible.

Under that law, all buildings and such permanent improvements in a farm, became ultimately the property of the landlord. In most parts of the province of Connaught, farms possessed no sort of farming accommodation; farm house and offices there are none; everything is required, and landlords have not had the means to at least they did not provide the necessary accommodations, and a farmer undertaking to cultivate land himself should have provided all these at his own expense. These expenses were too considerable to be incurred on the prospect of being repaid by the enjoyment of the premises during the continuance of a short lease, so that middlemen were, to a certain extent, driven to adopt the course of letting out their land to the peasantry in small portions. Thus, these two sources of evil proceeded, re-acting the one upon the other; the state of the law preventing middlemen from making improvements, and thus giving employment. And this very want of employment rendering small holdings the more necessary for the labouring poor, their rents higher, . and, in consequence, the inducement greater to landlords and middlemen to adopt this system in the management of their lands.

And the law is not different now from what it was then; still the landlord becomes entitled, at the expiration of the lease, to the benefit of all the improvements made by the tenant during its continuance; still the wide fields of Connaught are naked, destitute of farm-houses, of farm offices, still-in despite of the failure of the potatofarmed on the old system of letting them out to a cottier peasantry. Is it reasonable to suppose that while the same causes continue to operate, results of a different character will follow ? We are confident that similar results will be produced, as long as this injustice to improving tenants is continued, and that an alteration of the law, by which a tenant will be secured the enjoyment of property which he has himself created, will necessarily precede any improvement either in the appearance, or the surface of the country, or in the condition of its inhabitants.

We know it will be objected, that any enactment of this kind would be such an interference with the rights of property as could not be tolerated; that if any such principle were admitted, landlords might be improved out of their properties; that all arrangements with respect to outlay and compensation should be left to the parties themselves, and that in the end all interference by the legislature would be found to do more harm than good.

As to interference with the right of property, we apprehend the present rule of law interferes more with the very right of property than the alteration which we suggest. We do not understand how the fact of a house, or other permanent improvement, having been erected on land at the cost of another person, necessarily gives the

landlord a right to the ultimate property in this house or improvement, and, on the other hand, we do not know on what principle of equity a man is to be deprived of property whose very existence is the result of his own outlay and industry, merely because the property of the soil is in another person. Landlords should be content with receiving the full value of their lands, and they should not calculate on increasing their rentals by obtaining possession of property neither theirs, nor created by them. As to being improved out of their properties, it amounts to this, that tenants might create more property, that is, make more improve ments on their farms than landlords would be willing to purchase, and, admitting that this might take place-however it might prevent a landlord increasing his rental-it certainly would greatly augment his security for the rent at which he originally let the land, so that, far from improving a landlord out of his property, it would secure him in the receipt of his present income, and, on the supposition that he will not do anything to increase it himself, we do not think him entitled to more.

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As to leaving arrangements as to outlay and compensation to private agreement, we would suggest that this is inapplicable in the case of existing leases, that there are large classes of proprietors who are not in a position to make ments of this kind, which would amount to charging the inheritance; and lastly, that the experiment has been tried for several centuries, and having produced no beneficial results, it might be well now at length to try the effect of another system. And, as to the legislature doing injury by its interference, we are sorry to say there is very little cause to apprehend any such consequence, as the state of Connaught is at present as bad as it can be, which is an argument against the continuance of a system under whose operation this result has been arrived at.

An enactment providing that every person should have secured to him the enjoyment of the wealth which his industry called into existence, could never be considered an inequitable one. Under the protection of an enactment founded on this principle, the occupiers of land would feel that by their exertions they were realizing property for themselves and their families, and not for their landlords; their farms would improve in appear. ance and in value, and they would limit the amount of employment given, only when they found it unproductive.

THERE have been some very important decisions recently made in this country as to the exemption from, or operation of, the statute of limitations, 3 & 4 W. 4, c. 27. We allude particularly to the cases of Hunt v. Bateman, 10 I. E. R. 360); Dundas v. Blake, ante, p. 121; and Bennett v. Ber nard, ante, p. 145.

The two former arose on the effect of a trust in a will, and the latter on the pendency of a suit, as preventing the bar of the statute.

Immediately after the passing of the act, courts

of Equity appear to have struggled against its applicability to cases of general trusts created by wills; nor was the distinction very well defined as to what cases were within the saving of the 25th section, and what without the bar of the 40th. The words of the latter appeared sufficiently explicit, "no action, or suit, or other proceeding, shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon, or payable out of, any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for, or release of, the same."

The saving in the 25th was confined to cases where "land or rent was vested in a trustee upon any express trust."

On these two sections an infinite number of decisions have been made. Much property was involved in their adjudication, and the struggle has been generally keen to maintain demands barred by law; yet, generally, "just debts," the forbearance of creditors, and the procrastinating habits of the people of this country, eventuating in the loss of their demands. Baron Pennefather, in speaking of the statute in Hunt v. Bateman, observed, that it was "a matter of regret, and must strike every person as not redounding very much to the credit of the makers of the statute, made and passed nearly fifteen years ago, that in the decisions on it so much contradiction should have taken place." The framers of the statute might perhaps have retorted with considerable fairness that the reprehension of the learned Baron would have applied with as much justice to its expositors as to its

makers.

The first case in this country was that of Knox v. Kelly, (6 L. R. N. S. 222.) There the testator directed his debts to be paid, and, subject thereto, devised his real estate. It did not appear that there was any interposition of trustees between the creditor and devisee; "no vesting of land or rent in a trustee upon any express trust." The will was in 1810; the debt created in 1791, no payment subsequently to 1796, the application in 1837.

Sir Michael O'Loghlen held the debt not barred, and desired" it might be distinctly understood that he rested his decision entirely upon the trust in the will." And this decision was followed by Lord Plunket in Dillon v. Cruise, (3 I. E. R. 70,) where the devise was to beneficial owners, subject to the payment of his just debts, which the testator directed to be paid in the first instance. No interposition of trustees, no vesting of land or rent in a trustee upon any express trust. The Chancellor, however, was of opinion that there was an express trust created by the will, not a mere general charge, but a devise upon the condition of paying the debts, and he held that the case was not governed by the statute of limitations, and that the law was on the same basis as it had been prior to the passing of the act. Although there were other circumstances in each case, yet the principle to be extracted is as we have stated it.

These were strong decisions, for it was not very easy to understand how the latter case did not

range within the 40th section. It was a suit to recover a sum of money secured by judgment charged upon, or payable out of, land. And it was tolerably clear that it was not within the saving of the 25th section, as that applied to land, not to a gross sum of money charged on land. The statute was thus rendered almost altogether nugatory, its policy subverted, and, in fact, the evils which it was designed to check were set up afresh. It became very difficult to determine the effect in a will of a general charge for the payment of debts, and, if not within the bar of the statute, they might start up at any distance of time, and each particular case would have been susceptible of the nicest distinctions, and have been decided very much according to its particular circumstances, or the fancy of the judge-in favour of the debt, if he were disposed to fulfil the "pious intentions of the testator," and prevent him from sinning in his grave," or of the devisee, if he were opposed to the setting up of "stale demands."

We have stated these cases particularly, because we think they may now be considered as virtually overruled. The first blow struck at their authority was by the present Chief Justice, when Master of the Rolls, in the case of Knox v. Kelly, (6 I. E. R. 279). That case was undistinguishable from those we have stated, except that the demand was for a legacy, not a debt, and this in fact constituted no solid ground of distinction. It was there held that the legacy was within the 40th section, barred by it, and not saved by the trust created by the will.

The cases under discussion were further undermined by decisions of Sir E. Sugden and Sir James Wigram, who decided that where estates are in the hands of a beneficial devisee, subject to the payment of debts, there is a liability-not a trustcreated, and that the creditor will be barred if he does not pursue his remedies before the time given by the statute has elapsed, Hughes v. Kelly (3 Dru. & War. 48); Harrison v. Duigenan (2 Dru. & War. 295); Francis v. Grover, (5 Hare, 1).

In Hunt v. Bateman, the question was very carefully considered; and there, though more than thirty years had passed without any payment of principal or interest, or any acknowledgment of the debt, it was held not barred. But the distinction between that case and those we have adverted to, and on which the decision was made to turn, was this, that where estates are conveyed to trustees, and they stand between the creditor and the beneficial owner, so long as the estate remains in their hands, the trust remains and the debt subsists; but the learned judges were of opinion, that where there was a general charge created, and the lands were in the hands of a beneficial owner, no trust would be created, so as to prevent the bar of the statute.

It may, with fairness, be contended that where the legal estate is in the hands of trustees, the cases range within the 25th section of the act; but Mr. Baron Lefroy did not rest the decision upon that, and conceived such cases entirely out of the operation of the statute; he observes

It

(Continued from p. 136.)
CAP. LII.

An Act to explain the acts for preventing the destruction of
the breed of salmon and fish of the salmon kind.
[14th August, 1848.]

2.

streams thereof.

"It is not within the 25th section, because, though a suit by a cestui que trust against his trustee, it is not a suit to recover "the land," but a sum of money. Nor is it within the 40th section, because, though a proceeding to recover a sum of money, it is not a sum of money charged upon land merely Sec. 1. The word "river" in recited acts to apply to tributary in any of the ways mentioned in that section. is a suit by a cestui que trust against his trustee, to oblige him to perform his trust, by raising and paying the sum of money, for the raising and paying of which he holds the estate. In fact, it is a suit altogether out of the statute, but within that well-established principle of a Court of Equity, that as between an express trustee and cestui que trust length of time creates no bar, and with that principle this statute was not designed to interfere in this class of cases."

It will be observed, that the opinion of the learned judges in the foregoing case was not necessary for their decision of the point before them, and was, therefore, so far extra-judicial.

The point was fairly raised in Dundas v. Blake. On reference to our report, it will be seen that the trust created by the will was general; and that the lands, without the intervention of trustees, was given to the devisees beneficially. Counsel for the plaintiffs pressed very strongly upon the court, that the distinction taken in Hunt v. Bateman was not justified by authority or principle—that a Court of Equity only looked to the intention of the testator, and that it was perfectly immaterial, in that view, in whose hands the estates were; if in the hands of the beneficial devisee he was, by the will, constituted a trustee-that if the same instrument gave the benefit, it gave the burthen likewise that a Court of Equity would not permit him to retain the former and divest himself of the latter that the distinction was more one of words than substance; and it was asked, How could it be maintained that the debt was saved, where the legal estate was in the hands of a naked trustee who never acted, and barred in those of the man in whom the testator reposed personal confidence, whose conscience was directly affected with the trust that, so far as the creditor was concerned, the trust was raised whether with, or without an intermediary; and it was urged that the case was within that class defined by Baron Lefroy, and expressly within the authority of Dillon v. Cruise.

His lordship, however, decided against the plaintiffs, and was of opinion that a devise, subject to the payment of debts, did not constitute the devisee a trustee, so as to take the case out of the operation of the statute; and seemed to think that the Court of Exchequer thought the law more settled than it really was in cases apparently within the 25th section.

The effect of this decision is obviously of great importance; for we suppose it may be now considered as settled-if any question is ever to be so treated which has arisen under the Statute of Limitationsthat a general charge created for the payment of debts, where the estate is given directly to the trustee, will not prevent the bar of the statute.

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The last recited act to apply to salmon trout and fish of the salmon kind as well as to salmon.

3.

Not to extend to offences committed before passing of this act.

4.

Act may be amended, &c.

'Whereas an act was passed in the 58 G. 3, c. 43, and 'whereas an act was passed in the session of parliament held in the sixth and seventh years of the reign of Her present Majesty, to amend and extend the provisions of the said first-recited act: and whereas it is expedient to remove doubts which have arisen whether the said acts extend to the tributary streams of rivers, and the provisions of the said secondly-mentioned act extend to salmon trout and fish of the salmon kind :' be it enacted, that in

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the construction of the said acts, the words “river" and 'rivers" shall include all the tributary streams of such river and rivers respectively.

2. That all the provisions, in the said act of the sixth and seventh years of the reign of Her present Majesty contained for the protection of salmon shall extend to salmon trout and fish of the salmon kind, as if in every case where salmon is in such act mentioned salmon trout and fish of the salmon kind had been also expressly mentioned.

3. That with respect to any offence committed before the passing of this act the said acts shall be construed as if

this act had not been passed.

4. That this act may be amended or repealed by any act

to be passed during the present session of parliament.

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CAP. LVII. An Act to enable Her Majesty to exchange the advowson of the vicarage of Stoneleigh in the county of Warwick for the advowsons of the rectory of Yorall in the county of Stafford and the perpetual curacy of Hunningham in the county of Warwich. [14th August, 1848.]

CAP. LVIII. An Act to authorize for ten years, and to the end of the then next session of parliament, the regulation of the annuities and premiums of the naval medical supplemental fund society. [14th August, 1848.]

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Sec. 1. Persons in Ireland not exceeding 14 years of age committing certain offences may be summarily convicted by two justices. If offence not proved, or it is not expedient to inflict punishment, justices may dismiss parties. If charge is thought fit for indictment, &c., case to be dealt with as if this act had not passed.

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2. Power to justices to hear and determine cases under this act. One Dublin metropolitan justice may, in certain cases, perform acts usually done by two in petty sessions.

3. Proceedings under this act to bar further proceedings.

4. Mode of compelling the appearance of persons punishable on summary conviction.

5. Power to one justice to remand for further examination, and admit to bail.

6. Application of fines.

7. As to the summoning and attendance of witnesses. 8. As to service of summons. 9. Form of conviction.

10. No conviction to be quashed for want of form, nor removed by certiorari.

11. Convictions to be returned to the quarter sessions. 12. No forfeiture upon convictions under this act, but presiding justices may order restitution of property.

13. Recovery of penalties.

14. Proceedings against persons acting under this act. 15. Act to extend to Ireland only.

16. Act may be amended, &c.

'Whereas, in order in certain cases to ensure the more speedy trial of juvenile offenders:' be it enacted, that every person who shall be charged with having committed, or having attempted to commit, or with having been an aider, or procurer in the commission of any offence in Ireland, which now is or hereafter shall or may be declared to be simple larceny, or punishable as simple larceny, and whose age at the period of the commission of such offence shall not, in the opinion of the justices, exceed the age of fourteen years, shall, upon conviction thereof, upon his own confession or upon proof before any two or more justices of the peace for any county, riding, division, borough, liberty, or place in petty sessions assembled, be committed to the common gaol or house of correction within the jurisdiction of such justices, to be imprisoned with or without hard labour, for any term not exceeding three months, or, in the discretion of such justices, shall pay such sum, not exceeding three pounds, as the said justices shall adjudge, or, if a male, shall be once whipped, instead of or in addition to such imprisonment, or imprisonment with hard labour; and the justices shall appoint some fit person to inflict the said whipping when ordered to be inflicted out of prison: provided that if such justices, shall deem the offence not proved, or that it is not expedient to inflict any punishment, they shall dismiss the party on finding surety for good behaviour, or without such sureties, and deliver to the party a certificate under the hands of such justices, stating such dismissal, and such certificate shall be in the form set forth in the schedule hereto annexed: provided that if such justices shall be of opinion, that the charge is from any circumstance a fit subject for prosecution by indictment, or if the parent or next friend of the person charged shall, upon his or her being called upon to answer the charge, object to the case being summarily disposed of under this act, such justices shall deal with the case as if this act had not been passed.

2. That any two or more justices before whom any such person charged with any offence made punishable under this act shall be brought or appear, are hereby authorized to hear and determine the case under this act provided one or more divisional justice or justices of Dublin metropolis, sitting at any divisional police office, may hear and determine every charge under this act, and exercise all the powers herein contained, in like manner as two or more justices of the peace can do by virtue of this act.

3. That every person who shall have obtained such certificate of dismissal and every person who shall have been

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convicted under this act, shall be released from all other proceedings for the same cause.

4. And for the more effectual prosecution of offences punishable upon summary conviction by virtue of this act, be it enacted, that where any person whose age is alleged not to exceed fourteen shall be charged with any such offence, on the oath of a credible witness, before any justice of the peace, such justice may issue his summons to apprehend the person so charged to appear before any two justices of the peace as aforesaid, at a time and place to be named in such summons or warrant.

5. That any justice or justices of the peace, may remand for further examaination or for trial, or suffer to go at large upon his or her finding sufficient surety, any person charged before him or them with any such offence as aforesaid; and every such surety shall be bound by recognizance to be conditioned for the appearance of such person for further examination, or for trial before two or more justices of the peace assembled as aforesaid, or for trial at some superior court, and every such recognizance may be enlarged by any such justice or justices to such further time as he or they shall appoint; and every such recognizance which shall not be enlarged shall be discharged without fee or reward, when the party shall have appeared according to the condition thereof.

6. That every fine imposed by any justice or justices under this act shall be awarded to the use of the public hospital or infirmary of the county in which the offence may have been committed, and shall be accounted for in like manner and subject to the same regulations as all other fines imposed by any justice or justices of the peace in Ireland.

7. That any justice of the peace, by summons, may require the attendance of any person as a witness upon the hearing of any case before two justices, at a time and place to be named in such summons; and such justice may require and bind by recognizance all persons whom he may consider necessary to be examined to attend at the time and place to be appointed by him, there to give evidence upon the hearing of such charge; and in case any person so summoned shall neglect or refuse to attend in pusuance of such summons or recognizance, then upon proof being first given of such person's having been duly summoned, or bound by recognizance the justices before whom any such person ought to have attended may issue their warrant to compel his appearance as a witness.

8. That every summons issued under this act may be served by delivering a copy of the summons to the party, or by delivering a copy of the summons to some inmate at such party's usual place of abode; and every person so required by any writing under the hand or hands of any justice or justices to attend and give evidence shall be deemed to have been duly summoned.

9. That the justices before whom any person shall be summarily convicted of any such offence as herein-before mentioned may cause the conviction to be drawn up in the form of words set forth in the schedule to this act or in any other form of words to the same effect, which conviction shall be good and effectual to all intents and purposes.

10. That no such conviction shall be quashed for want of form, or be removed by certiorari or otherwise into any of Her Majesty's superior Courts of Record; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same.

11. That the justices of the peace before whom any person shall be convicted under this act shall transmit the conviction and recognizances to the clerk of the peace for the county, borough, liberty, or place wherein the offence shall have been committed, there to be kept by the proper officer among the records of the court of general quarter sessions of the peace; and the said clerk of the peace shall transmit to the chief or under secretary of the Lord Lieutenant of Ireland a monthly return of the names, offences, and punishments mentioned in the convictions.

12. That no conviction under this act shall be attended with any forfeiture, but whenever any person shall be deemed guilty under this act the presiding justices may order

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