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Erish Jurist

No. 3.-VOL. I.

NOVEMBER 18, 1848.

PRICE 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:

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THERE is no subject more vitally interesting to the Irish public, than the Irish poor laws. The cottier-separated by an almost infinitesmal distinction from the pauper, for whose support he is taxed-and the lord of the soil, alike feel heavily their burthen. The deliberate opinion of the select committee of the House of Lords appointed to inquire into their operation-so far as related to the rating of immediate lessors-that those laws called for a more extensive enquiry, warrants the expectation that they will undergo a revision during the next session of parliament; and meantime it is of great importance that public opinion should be directed to their defects. To assist in this desirable object, we shall investigate, seriatim, the working of the poor law, pointing out its defects, as well as the means by which (in our judgment) they might be remedied.

In this investigation we shall adopt the following order. We shall consider the working of the poor law-in the striking-in the levying and in the spending of the rate; other important subjectsthe area of taxation-the species of property exempt and the inequalities in its pressure, will be discussed afterwards.

For the striking of a rate, there is requisite the valuation of the rateable property, and the construction of the rate books; under this head we shall also notice the subject of appeals.

Under the first poor law act, the occupying tenant was, in every instance, primarily liable, and hence in the original valuation, the holding of each occupying tenant was valued separately. This valuation (though the act provides for its being done satisfactorily) was made in a loose and inaccurate manner the valuator arriving at the extent and value of each holding, either by estimation, or from the account obtained from the occupy ing tenants themselves; and upon this valuation

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Court of Exchequer

Chamber......

Queen's Bench, including Civil Bill and Registry Appeals........

Exchequer of Pleas, in

cluding Manor Court and Registry Appeals. Common Pleas ...

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

(JOHN T. BAGOT, Esq., and FLORENCE M'CARTHY, Esq.,

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Barristers-at-Law.

CHAS. H. HEMPHILL, Esq., and

WILLIAM HICKSON, Esq., Bar

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the original rate books were framed, and which were in the following form:-First, there was a column containing the common numerals, from one to the number of occupying tenants in the townland, frequently beyond 100; in another column were set down, opposite the numbers, the names of the occupying tenants; in a third, that of the immediate lessor; in another, the supposed acreable extent of each tenant's holding; and in another its supposed value. When the law was altered, by which the immediate lessor became primarily liable for all holdings where their value did not exceed £4, the rate books were altered by omitting the names of the occupying tenants for those small holdings, and generally all names for which owners could not be found-thus rendering the immediate lessors liable in all these cases; and this (except that some few alterations have been made from time to time on appeal) is the present state of the rate books.

The books thus framed are open, at specified times, to the inspection of all persons concerned and here the ratepayer may learn that he is liable in a certain townland to certain numbers (51, or 87, or 100) in the rate book, as the case may be ; but what particular holdings these numbers refer to, he has no means of ascertaining.

The rate payer, if he believes himself overcharged, may appeal. To effect this he must give fourteen days notice to the clerk of the Guardians, and to every other person concerned in the event of the appeal-those will be the immediate lessor or lessors, whoever they may be, and all the occupying tenants of the townland. He must besides enter into personal recognizances that he will prosecute the appeal at the next Quarter Sessions. It must be observed that his time for appeal is very limited, for if a Quarter Session take place one month after the striking of the rate, he must then appeal or not at all; and, considering that the rate books are not exhibited for inspection for some time after the rate is struck, and that the appellant must give

fourteen days notice to a great variety of parties, he | it is divided, having each holding numbered, and will find it very difficult to comply with the requi- having corresponding numbers in the rate-books, sites; besides, the justices and assistant-barrister are and submitted the townland sheets, so divided and precluded from inquiring into any cases, or with numbered, with the rate-books, for the inspection respect to any person or persons other than those of the rate-payers-most of the difficulty adverted mentioned and specified in the notice, so that this to would be got rid of at once, all disputes as to the notice must be very special; and in a thickly ten- valuation of holdings would be settled by a valuator, anted townland, or one in which the rights of pro- and if an appeal were still necessary, much of the perty are complicated, (as where properties are held difficulty would be removed, both as to the evidence, in common or in coparcenery), may be very volu- which should be produced, and as to the parties who minous. should be noticed.

But the appellant has still further difficulties to contend with from the loose way in which the rate books are constructed. As before observed, he can only learn from the rate book that he is chargeable for certain numbers in a townland, but he cannot learn from it what particular portion of the townland that number refers to. In the case of an occupying_tenant, he may be able to satisfy the Assistant Barrister that he does not hold more than a certain quantity of land, and that it is not of more than a certain value; but in the case of an immediate lessor, he has nothing tangible-all he knows is, that he is held liable for particular numbers in the rate book, and the rate collector, or any other officer, can give him no information as to what particular holdings those numbers refer; he can only adopt a sort of exhausting process, fixing as many of the occupying tenants as he can with WE this week continue our examination of the liability, and to a certain amount; and thus esact for the sale of encumbered estates, and protablishing that he is liable only to the balance of ceed to the discussion of the provisions for the the rate due on the whole townland. This process practical working of the measure in the Master's in appealing clearly imposes on the Assistant Bar-office. The 11th section directs that the proceedrister and justices the duties which should have been discharged by a valuator.

By giving the appeal to the next Quarter Sessions which might take place in the town nearest to the appellant, provided it were not within two months of the striking of the rate, waiving the necessity of recognizances to prosecute the appeal, guarding against those that were frivolous, by giving costs against the appellant, and attaching the town. land sheets of the ordnance survey, exhibiting the separate holdings, numbered as above-to the rate-books, and submitting them together to the inspection of the rate-payers, would present nothing objectionable in this department of the poor-lawextending the time for appealing could not injure the guardians, as they could levy the tax notwithstanding the appeal.

There is another considerable inconvenience to the appellant, arising from the fact that Quarter Sessions are not held four times a year in all Quarter Sessions towns. Strange as it sounds, in some Quarter Sessions towns they are only held once in a year, and hence the appellant is frequently obliged to attend, with his witnesses, at a distant place, and of course, at a considerable expense ;-when the great size of some of the Quarter Sessions districts is remembered, this will be admitted to be no small grievance. To attend the next Quarter Sessions, as required by the act, an appellant would sometimes be obliged to undertake a journey of 60 miles, which, with waiting his turn, and returning 60 miles, would detain him, and perhaps several witnesses a week or ten days from home.

It seems monstrously absurd, that in the same country two land-taxes should be based on separate and independant valuations, the one (for the countytax, and which is far the lighter,) conducted with the most mathematical accuracy as to extent, and scientific investigation as to value; the other, (for the poor-rate,) conducted in a loose and slovenly manner, and admittedly most unsatisfactory. The townland sheets of the ordnance survey and their valuation by the same department, afford the most complete and beautiful basis for a system of taxation that can be conceived; and if the valuators under the poor-law only annexed the townland sheets of the ordnance-survey to the rate-books, exhibiting on each townland the several holdings into which

ings now in force in suits for foreclosure, or for sale of estates for payment of incumbrances, shall apply, where applicable, to proceedings under this act, and enacts that all persons who shall become parties to proceedings even "by attending before the Master in the course of such proceedings, or by otherwise concurring in any such proceedings," and their representatives shall be subject to the jurisdiction of the court and Master.

is considered concurring in the proceedings, at least It would seem that appearing before the Master we collect this from the use of the words "attending before the Master, or otherwise concurring" so that the object of the party appearing is immaterial, his attendance will be sufficient to bind him; where this result is apprehended, the safer course will be to lodge a caveat with the registrar, as directed by the 17th sec. by which means the caveater will have notice of every proceeding, and yet not be bound by voluntary sub. mission to the Master. The 12th section provides for taking objections to the Master's report, and contains the following important paragraph, "that proceedings shall not abate, nor be suspended by any death, transmission, or change of interest, except so far as it shall be deemed necessary for carrying on of any such proceedings that any person not before the court shall have notice of, or be required to attend such proceedings." The object of this section is to dispense with the neces sity for bills of revivor in case of death, and bills of supplement in case of transmission of interest, but the act leaves undefined the mode by which the

swept away; they were associated, in our mind,
with no trouble, on the contrary, they are dear
to most of our early bar recollections, as connected
with our first rising at the Rolls, they were provoca-
tive of the first sounds our legal lips were heard to
utter, they are entwined with the memory of our first
fees, as the friendly solicitor puts the guinea and
the brief into our hand. "Motion to serve party

proceedings are to be continued. There must be
some machinery to bring such parties before the
court. Let us take for example the instance of a
petitioner becoming bankrupt before a report of the
Master, how are the proceedings to be continued?
The 32d section of the 5 & 6 W. 4, c. 55, s. 32,
familiarly known as the sheriff's act, directed that
no proceeding in the matter of any petition (under
which a receiver had been appointed) should deter-out of jurisdiction, suit relating to lands."

mine by the death of any of the parties in such Supremam lachrymam da, memoremque mei.
matter, but that the court might make an order for It will be seen, this section gives extensive powers
continuing such proceedings; and, in such cases to the Master, and transfers almost the entire con-
where the respondent, the judgment debtor-who duct of the proceedings under this act to his office;
is not mere tenant for life, in which instance the under the old system, and the 115th general order,
court stands neuter, and allows the remainderman we believe it was the practice of the Masters to
to enter without an order discharging the receiver-serve motions on parties in cause or matter out of
dies, it becomes necessary to obtain an order of the the jurisdiction, but in those instances, the parties
court to continue the proceedings, by serving his were previously before the court; the 10th and
executor and heir at law, Brady v. Fitzgibbon, (7 and 16th sections of the late act for the first time
I. E. R. 1); Cloncurry v. Piers, (9 I. E. R. 407); gives them power to have notices served in any
but in proceedings under the act, the subject of our part of the world, on persons not previously be-
consideration, a mere order or notice will not be fore the court. We presume the general orders
sufficient, there must in most cases be some plead will direct in ordinary cases who are to be served,
ing to bring the new parties properly before the for example, where the father tenant for life files
court, either in the shape of a supplemental or the petition, the first tenant in tail being an
amended petition; and, until this proceeding take infant, some one in his behalf should have notice
place, we do not well understand how the petition and be his guardian, ad litem, the 35th section
can be proceeded with. We presume some provi- applies, only to sales out of court, in which case the
sion will be made for all cases of abatement by the father is empowered to apply to the court, which
general orders, for the 13th section, which gives may direct notice to be served on some person to
the court power to make an order on the appli- act for the infant, but no provision is made for
cation of any person interested in carrying on the sales under the order of the court, except that by the
proceedings though analogous to the provision 64th section, the court is empowered to, in certain
we have cited from the 5 & 6 W. 4-does not cases, appoint a guardian for an infant, for the pur-
remove the difficulty in practice, more especially pose of any proceeding under the act.
where the abatement is occasioned by the death of
the petitioner, and it is the interest of the opposite
parties that the proceedings should be dismissed.

The 14th and 15th sections regulate the number and nature of advertisements, and guard against the proceedings being vitiated by any error in any advertisement, except the court shall so direct.

The 16th is an important section. It provides that the Master, before proceeding with the inquiries directed by any reference, and from time to time, under such reference, shall cause notice to be given to all persons who shall appear to him to have any interest in any of the subjects of inquiry; and, that all notices may be served out of the jurisdiction of the court, and that the court may have the power to direct substitution of service, and further, that the court, in the case of any person who shall be served and shall not appear, may, by motion of course, make an order that such incumbrancer or person shall be bound by the proceedings as if he had been a party thereto, provided that he shall not be excluded from sharing in the proceeds of the sale.

We can hardly forbear a murmur of regret, when we reflect upon the numerous motions of course which thus will be lost to the Junior bar and their heirs for ever by this section; and we certainly claim credit for our disinterestedness in praising We had seen with comparative composure, the extinction of bills, and friendly answers, but it requires the full exercise of our patriotism and philosophy to see "motions of course"

this measure.

The 21st section involves a new and rather dangerous principle, that when any incumbrance shall be subject to any limitations of estate or interest, or shall be held upon any trusts, the first person entitled to the income of such incumbrance, or the trustee, or other person whom the court may think fit, shall be the person to make any application, or give any consent under this act in respect of such incumbrance. In the case of consents, unless the court impose some strong checks upon the tenant for life, the interests of those in remainder, where an incumbrance is the subject of settlements are not sufficiently protected.

We have in a former article expressed our approval of the 22nd section, which enables persons entitled to unredeemable charges, to accept a gross sum, by way of compensation, and enables the Master to sell the lands discharged of those charges, or, with the consent of parties interested in part not desired to be sold, to approve of that part being exclusively charged with such incumbrance in exoneration of the rest, or, with such consent as aforesaid, to approve of such incumbrance being apportioned between sold and unsold portions, and either of these latter measures the Master is em powered to take without the consent of the party entitled to the unredeemable charge. This section also gives power to the court, on special application, to direct a sale before all the accounts are taken, or incumbrances ascertained.

The 23rd section, regulates the manner of filing reports and other proceedings, and limits the time for

takingobjections to the former, and enacts that the court may upon the application of any person interested, and without the attendance of counsel, unless the court shall see fit to direct such attendance, confirm the report and direct a sale. Mr. Smythe remarks justly, that "the latter part of this section exhibits a want of meaning and jealousy of lawyers equally worthy of a lack learning parliament." The order of the court must be made on application, if by petition, that proceeding will be more expensive than by motion made by counsel. Either the report should stand confirmed without further order, or if application be necessary, as the act has made it, such application should be made by counsel, who stand, as it were, between the court and the suitor. They possess the confidence of the former, and are entrusted with the interest of the latter. Thus public business can be despatched with speed and safety; the judge, relying on the statement of counsel, can dispose of fifty reports in a day, whereas if he be obliged to make fiats on the several petitions, and read the reports of the Master, there will be an enormously increased amount of labour unnecessarily thrown upon him, and without any saving to the suitor.

The 27th section demands our most anxious consideration. It enacts that the form of assurance shall be such as the Master shall direct-whose execution alone shall be necessary for its validityand directs that it shall be effectual to pass the land thereby expressed to be conveyed discharged from all former and other estates, rights, titles, charges, and incumbrances whatsoever, of her Majesty her heirs and successors, and of all other persons whomsoever. The exceptions are: the rights of any lessee, tenant, or occupier in possession, and the rights of any lessee, or under-lessee at a rent, to whose lease or under-lease the incumbrance or owner was subject-right of commonright of way, or other easement-rent-chargecrown rent and quit rent.

Does, then, the court of Chancery warrant title? Has the purchaser nothing more to do than pay his money and get the Master's signature to the deed of conveyance? Has the transfer of real estate become so simplified that no abstract and no searches will be required by a purchaser ?

These are grave questions.

Mr. Smythe is of opinion, and we concur with him, that the saving "of the rights of any lessee or under-lessee subject to whose lease or underlease the petitioning owner or incumbrancer shall be an owner or incumbrancer," will render abstracts of title and registry searches necessary, because the purchaser must know, and can only know by a registry search, what leases are in existence; and from this follows, as a necessary corollary, that he must know who were the lessors, and their title to make leases. The main question, however, still remains as to title and incumbrances; must the former be deduced, or the latter be shewn to be discharged? or can the purchaser, with the assurance under the act, executed by the Master, and without another document, acquire an indefeasible estate against the whole world? Can he rely upon this charter deed for all purposes whatsoever, both of attack and defence? With this single weapon can he

maintain or defend an ejectment, and will the court of Chancery relieve him even from the necessity of seeing that the proceedings under the act are regular? If this statute will do this, every lawyer will concede that it has effected the greatest revolution in the law of real property of modern times.

A new terminus, from which titles to the lands of this country can start, will be established without a clog, without a speck; and the title to ten thousand a year may be comprised in a deed not a skin of parchment long.

We feel this to be a question of extreme difficulty, and whether our opinion arises from caution, or that the change comes upon us in too startling a shape, we know not, but we incline to think that the court does not warrant title.

The act nowhere expressly exempts a purchaser from seeing to the regularity of the proceedings; and, if he is obliged to do that—as he would be, under the present system of judicial sales he must have an abstract, and must see that every one having a claim is bound. Yet, though the court does not warrant title, it confers one that will be good against the world, provided the requisitions of the act have been complied with, but it throws the burden of inquiry upon the buyer.

The

We have dwelt-with perhaps too tedious minuteness-upon the sections of the act which relate to sales under the order of the court of Chancery; we have done so because we believe that this portion of it only will come into practical operation. We view the measure through neither an exaggerated nor a diminished medium. legislature has done much; it has lessened the expense of judicial sales, and given an owner of a limited estate the power to procure them; but a great deal of the utility and efficiency of the statute will depend on the General Orders, which both professions are expecting with anxiety.

(Continued from page 16.)

12. That every person who, after the day named in such last-mentioned notice shall knowingly have in his posession any arms or ammunition, contrary to this act, shall be guilty of a misdeameanor, and liable to be imprisoned, with or without hard labour, for any term not exceeding two years.

13. That from the day named in any such notice the Lord Lieutenant may by warrant direct a search to be made in any county, &c. named in any such notice or in any house or place within the same at any time whilst such proclamation shall be in force, for any arms or ammunition which any person shall have contrary to this act; and all arms and ammunition found, shall be forfeited for the use of Her Majesty.

14. That any county or sub-inspector to whom any such warrant shall be directed, and all constables, &c. acting in their aid may within twenty-one days after the date of such warrant, including the day of the date thereof, enter into any house or place at any time between sunrise and sunset, to execute such warrant and in case admittance be refused or shall not be obtained within a reasonable time after de

manded, enter by force into such house or place to execute

such warrant.

15. That the Lord Lieutenant may appoint persons to

grant, at their discretion, &c. licences in the form (A.) in the schedule to this act contained, to any persons to have in his own dwelling house only or licences in the form (B.) in the schedule to this act contained to carry and have with

in the district named in any such, &c. or ammunition; provided that the said Lord Lieutenant, by order, may at any time revoke any licence and after the publication of such order in the "Dublin Gazette" the Licence therein mentioned shall cease and a copy of every such order shall, within four days after the making thereof, be delivered to or left at the place of abode of every person whose licence shall be revoked thereby.

16. That from the day named in any such proclamation, if there shall be any murder or any attempt to murder, or if any justice of the peace or any constable or peace officer shall have reasonable ground for believing that any murder has been committed, or any attempt to commit murder, in any county, &c. named in any such proclamation, any justice of the peace, constable, &c. may give notice to any male person between the ages of sixteen and sixty, residing or being within such county, &c. that search and pursuit is to be made to apprehend the offenders and may call upon, and thereupon it shall be the duty of every such person to join in such search and pursuit, and to assist in apprehending such offender; and every such person refusing, shall be guilty of a misdemeanor, and be liable to be imprisoned, with or without hard labour, for any term not exceeding two years.

justice in Ireland, of all facts necessary to authorize the issuing of any such proclamation, warrant, order, or notice; and every such proclamation, &c., shall be deemed to have been issued in conformity with this act.

22. That this act shall be in force until the thirty-first day of December one thousand eight hundred and forty-nine, and from thence until the end of the then next session of parliament.

23. That this Act may be amended or repealed by any act to be passed in this session of parliament.

SCHEDULE to which the foregoing Act refers.

(A.)

Form of licence to have Arms, &c. in a dwelling house only. I A.B., having been duly appointed in that behalf under an Act passed in the eleventh year of the reign of her Majesty Queen Victoria, intituled "An Act for the better prevention of crime and outrage in certain parts of Ire"land until the first day of December, one thousand eight "hundred and forty-nine, and to the end of the then next "session of parliament," do hereby grant to C.D. of here insert the name, description, and place of residence,] a licence to have in his [or her] dwelling house, situate at and not elsewhere, one gun [or other Arm or Arms or ammunition, as the case may be]. Dated this day of

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(Signed)

(B.)

A. B.

17. That whilst any Proclamation shall be in force, and upon any trial or proceeding under the said last-recited Acts or this Act, it shall not be necessary to prove that the district in which any offence against the said last-recited Acts, or this Act, was committed, was at the time of Form of licence to carry and have Arms, &c. in prolaimed commission thereof in a state of general disturbance or insurrectionary movement, or that any such offence or the circumstances attending the same, was of an insurrectionary character.

18. And from the day named in any such Proclamation every accessary after the fact to any murder or attempt to murder in any proclaimed district, may be indicted and convicted together with, or after the principle offender, or may be indicted and convicted of a substantive felony, whether the principal offender shall or not have been previously convicted, or shall or not be amenable to justice, and may, howsoever indicted, be punished in the same manner as any accessary after the fact to the same offence may be punished: provided that no such person who shall be once duly tried, as an accessary after the fact or for a substantive felony, shall be again tried for the same offence.

19. That from the day named in and during all the time any such proclamation shall be in force, the Lord Lieutenant may direct that any person imprisoned in any gaol, &c., in any district proclaimed, under sentence of transportation or imprisonment, may be removed to such other gaol, &c. in Ireland as to the said Lord Lieutenant shall seem fit, to remain till he be transported, or shall have served the term of imprisonment, or be otherwise discharged by due course of law; and every person so removed, shall be considered in the proper legal custody during the time of such removal, and while in the place to which he shall be so removed, in like manner if he had continued in his original place of confinement; and the maintenance of such prisoners in the place to which they shall be so removed shall be paid by the county from which they shall be so removed, as same were paid before such removal; and the expenses of such removal shall be charged on the county, &c. from which such persons shall have been removed, and shall he paid for as provided by 1 and 2 Vict. c. 6.

20. That any person prosecuted by indictment for any offence against this Act committed within such proclaimed district shall plead to such indictment, and the trial shall proceed, at any special commission, assizes, or sessions of the peace for the county wherein such offence shall have been committed next after such person shall have been committed for trial or held to bail, or if such offence be committed after the commencement of such special commission, assizes, &c., then at the same special commission, assizes, &c., unless the court shall otherwise direct.

21. That the production of the "Dublin Gazette," purporting to be printed by the Queen's printers, containing the publication of any proclamation, warrant, or notice under this act, shall be conclusive evidence, in all courts of

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districts.

I A. B., having been duly appointed in that behalf under an act passed in the eleventh year of the reign of her majesty Queen Victoria, intituled "An act for the better 'prevention of crime and outrage in certain parts of Ire"land until the first day of December one thousand eight "hundred and forty-nine, and to the end of the then next ses"sion of parliament," do hereby grant to C. D. of [here insert the name, description, and place of residence,] a licence to carry and have one gun [or other arm or arms or ammunition, as the case may be,] within the county [county of the city, county of the town, barony, half barony or other district, as the case may be,] of Dated day of

this

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An act to give further time for making certain railways. [20th December, 1847.]

Sec. 1. Railway Companies may apply to Commissioners of Railways for extension of time for purchase of lands, &c.

3.

2. Commissioners may require Company to give notice
of application by advertisement in the Gazette.
Commissioners of railways, by warrant under their
seal, may, upon proof that notice has been given,
enlarge the time for the completion of purchases
and works.

4. Acts mentioned or referred to in such warrants to
be construed with reference to the same.
5. Not to revive expired powers. Existing contracts
and notices to take lands to be construed as if this
Act had not passed.

6. Notices of warrants being granted to be published
in the Gazette.

7. Parties aggrieved by extension of time being granted
may have compensation for additional damage
8. Contracts for new works not to be entered into for
a limited period, except in certain cases.

9. Mode of ascertaining consent of Shareholders to the
making of contracts for new works.

10. Certificate of the Chairman of Company, countersigned by the Secretary, to be evidence of consent. 11. Act may be amended, &c.

'Whereas acts of parliament have been passed for mak'ing railways, and in them periods of time are limited 'within which only the powers granted for making the railways, or for the compulsory purchase of the lands re

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