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Frish Jurist

No. 1-Vol. I.
NOVEMBER 4, 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 :
Court of Chancery, in-

Robert W. OSBORNE, Esq.,

Court of Exchequer S JOHN BLACKHAM, Esq., and

Chamber...... cluding Bankruptcy 3 John Pitt KENNEDY, Esq., Bar

A. HICKEY, Esq., Barristers-at

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

Queen's Bench, includ. S Joan T. Bagot, Esq., and WILLIAM BURKE, Esq., and ing Civil Bill and Re- FLORENCE M'CARTHY, Esq., Rolls Court.......... WILLIAM JOAN DUNDAS, Esq., gistry Appeals......... Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in. S Coas. H. HEMPHILL, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court William Hickson, Esq., Barand

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

risters-at Law.

Common Pleas..... { Roar RawLong, Esq., Barrister

DUBLIN, NOVEMBER 4, 1848. no established medium for the interchange of legal

ideas! We think it necessary to lay before

our readers the of possessing such a medium, it is presented in the

If illustration were required to prove the utility reasons and purposes for which this journal has instance of the Irish Law Society. That very been established, and to give an outline of the mat- useful body, which has frequently interfered with ter and subjects which it is intended its columns success to prevent or postpone the passing of either shall contain. It may be, that we shall not offer a mischievous or crude legislation, publish annually bill of fare which may tempt the imagination, or a condensed summary of the measures of the prestimulate the passions ; but we hope to present one that will be substantial, without being heavy, and ceding year which they have opposed or procured, of solid usefulness, not only to the

legal profession, disapproved or promoted ; but though this epitome of solid usefulness, not only to the legal profession, be ably compiled, it labours under the disadvanconnected with the administration of justice, or in- tage of being too compressed, and being a single terested in the improvement and transfer of pro- publication, it not only wants the force of frequent perty—subjects which the recent and contemplated repetition to produce effect

, but also the power of

discussing each separate matter, as the necessity changes in the law render of paramount importance. arises ; and dealing

with the past or the future does is no voted to law reports, and law intelligence, and it not act upon the present with sufficient force. cannot be doubted that there ought to be such a to amendments in the law; but their knowledge of

It is unjust to suppose that lawyers are opposed journal, and that the professional Irish law world the subject, and of mankind, render them peculishould not be without a recognised organ, and medium to convey its sentiments, communicate iu- arly alive to the difficulty of altering laws under telligence, and discuss calmly and temperately which rights and complicated relations have been changes in the law, whether accomplished or in- created, and whilst they are willing and anxious that tended, and which 'affect not only the interests of well considered improvements should be introduced,

they wish to see them the result of that skill and the profession, but the whole fabric of society. The necessity for such a law newspaper, which nied that the temperate discussion by lawyers of

caution their importance demands. Can it be dehas always existed, has never, perhaps, been greater law reform, would be conducive to the public than at present; for it must be conceded that a revolution in the laws relating

to real property in good? Every important change, if based on sound Ireland is rapidly taking place. The effect of this principles, can with advantage be tested, probed,

and examined. The interest of the lawyer and the on the well-being of the country, cannot be estimated, but unquestionably each step should be can- legislator are not in antagonism. vassed, weighed, and matured, before it be taken ; | JURIST, is not confined to the discussion merely of

But the utility of such a publication as the there are nulla vestigia retrorsum. It is not pre- contemplated acts of Parliament; it becomes more sumption to suppose that by po class should every practically useful when those measures are being change connected with the jurisprudence of the carried into actual operation, for then it is the country be discussed with more practical benefit

, intelligencer of the mode in which they are worked, than by legal men-their trained habits of thought, it conveys with speed and authenticity the decisions and familiarity with the subject pre-eminently fit them for the task ; but yet hitherto there has been made on them, and can indicate the consequences

which they are likely to produce, and their prac- every new principle and every modification in practical bearing and effect.

tice. We may take-as examples of the advantages to Every important Act of Parliament will be anabe derived, with reference to past and future legis-lyzed, and a careful Annual Index compiled, not lation, from our journal—the Poor Law acts, and merely of the cases reported in this periodical, but the act for the Sale of Incumbered Estates. The of those which have been reported within that time former will be entirely reconsidered in the next in Ireland. That portion devoted to Law Lists and session of Parliament, and it can hardly be denied Tables will be compiled with the most pains-taking that a preliminary and careful discussion of the accuracy. whole question connected with the compulsory re The questions and principles of law and practice lief of the poor, will be of great practical utility to which this journal will be devoted, must necesWe invite this discussion.

sarily be useful to every landed proprietor and Rapid and careful reports of the decisions pro magistrate—the laws which affect the one, and those nounced on the Incumbered Estates Act, and fre which are to be administered by the other, will be quent statements of the practical working of the frequently the subject of practical exposition. measure, must, we should think, be important, not If we fulfil our part, the experiment will be tested, only to the practitioner, but to haif the landed pro whether the Irish public will lend its support to a prietors of Ireland, whose interests are so wound journal which professes to give useful information, up in the measure.

apart from the struggles of party and the exciteFor these reasons, if there were none other, the ment of politics. advantages of a journal in which present and future laws can be weighed and considered, are apparent, and these advantages are not limited, but universal The act for the sale of Incumbered Estates tn equally beneficial to the lawyer, the country-gentle Ireland forms a very important chapter in the man, and the senator. The latter, in the progress history of the law of real property. We shall enof a measure through either House of Parliament, deavour, in this article, to lay before our readers a will have his attention directed to defects or omis. general statement of the changes which this sta. sions, and those niceties of detail which only strike tute has introduced into the law. We neither seek the legal mind. Hence may be avoided “ Acts to to exaggerate nor underrate their magnitude, and amend Acts,” and laws rudely shaped, which yet our comments will be written in no unfriendly deeply affect some of the most important interests spirit. in the community.

The bill, as introduced by Lord Cottenham into We do not seek to set an undue value on the the House of Lords, contained no proyision for the ability with which this journal may be conducted; sale of lands without the order of the Court of our judgment may be wrong, but still we shall be Chancery—these were added to the measure during useful, we are established, we are ready to hear the its progress through the House of Commons. opinions, to receive the advice of others, and we shall Their dovetailing has marred the symmetry of the form a nucleus, round which may be collected the

act, and we venture to predict this portion of it opinions of men of capacity and intelligence.

will be practically inoperative. The owner of an We promise to be influenced by neither personal estate for life being invested with the power of nor sordid motives; if we know ourselves and the selling the inheritance, it was necessary to provide spirit with which we have undertaken this journal stringent guarantees for the safety of incumbrancers our single aim is, to conduct it with an earnest desire

and remainder-men-those which have been profor truth, impartiality and justice.

vided by the statute will occasion such loss of time, We do not, however, mean to fill our columns and such publicity, that no owner will be likely to solely with dissertations; the greater portion of oui

resort to them, and a purchaser will prefer a sale space will be occupied with concise Reports of cases by order of the Court, in which case his title will which involve questions of law or of general interest. not be kept in abeyance for five years. Thus, without interfering with the regular reports,

The operations of the act will also be more limited it is our object to give information equaily authen- than is generally supposed, as will be apparent tic, and with more rapidity.

from the fact that the owner, the first incumbrancer, It is both impolitic and dishonest to be liberal in and the incumbrancer having possession of the promise and meagre in performance, but we may title-deeds, can alone proceed for a sale under the state, that it is our design to insert not merely cases order of the court; a puisne incumbrancer cannot, which occur in this country, but also questions of except he is prepared to apply to the court for liberty law or interest which are taking place in others; to redeem the prior incumbrances, and—in case the variety of food, provided it be wholesome, is as amount of such prior incumbrances is unasceragreeable to the intellect as to the body. We shall tained—is ready to pay into court the amount give Reviews of law works, and Biographies of claimed, to abide the result of the taking of an eminent legal men, and Reports in full of interesting account, whilst he is precluded from questioning public trials, enlarging our space according to the the validity or title of such prior incumbrances. Sec. press of matter, and the support with which we meet. 70. This will operate as a practical exclusion to all

It is our purpose to omit no source of information, puisue incumbrancers proceeding under the order consistently with our limits, which will be useful to of the court ; they will —and they form the vast the working practitioner of both professions, he will majority of plaintiffs in courts of equity-consehave the decisions of the judges almost as soon as quently be obliged to resort to the present system pronounced, and will thus be at once apprized of of filing foreclosure bills.

We now proceed to mention the principal alter- | by a sale of so much of the security upon which ations and novelties introduced by the statute. they were charged, as will be sufficient for their

Ist, It allows an owner to initiate proceedings liquidation, and to render the residue available for for a sale of his estate, for the payment of incum himself and his family. In fact the term owner in such brances affecting the inheritance; and an owner, cases was a mockery, he was in reality more often the as defined by the 1st section, includes every person agent of his creditors. He could not have effected from the tenant in fee, to the tenant by the cour- his purpose by a judicial sale, inasmuch as our tesy, and in the case of leaseholds, from the person courts of equity did not recognise the right of any entitled in perpetuity, to the possessor of an un- person other than an incumbrancer, to put its jurisexpired term of fifty years, not being an under- diction in motion for such a purpose. Neither lessee at a rent.

could he have disposed of it by private contract, 2ndly. It confers a parliamentary title on a pur- inasmuch as the law required the consent of every chaser; in the case of sales under the direction of creditor, whose debt was registered a matter of rethe Court of Chancery, as soon as the conveyance cord, to be evidenced by his executing the conveyis executed, and in the case of sales without the ance to the purchaser, or releasing the lands, as a con-? order of the court, within five years from the con- dition precedent to the validity of the sale-arequireveyance

ment, which, although intended as a protection to 3rdly. In case of sales under the order of the the creditor (whose interests would otherwise, in the court, the Master in Chancery has the power of absence of any controlling power as to the rate of apportioning head rent amongst the lots into which purchase or mode of disposition, have been comthe land may be distributed for sale or reservation ; pletely at the mercy of the owner) was, from its but this power does not exist in cases where the very nature, an absolute prohibition against alienasale is without the order of the court.

tion by a proprietor. In this dilemma_debarred 4thly. The owner of a judgment affecting lands upon the one hand, from all participation in the may, under the provisions of section 72, release a privileges of a suitor to the equitable tribunals of portion of such lands, without nullifying the effect the country, and practically shut out, upon the or validity of such judgment upon the residue of other, from the right of disposition by private consuch lands, or any other property which it is in- tract, with which, as we have seen, he was but tended should remain subject thereto. This power nominally invested—the owner of an incumbered diminishes the evil of judgment securities, and will estate, desirous to sell, had no other alternative left afford considerable facility in making title, not only him, by which to bring his estate into the market under this act, but generally.

than to solicit the co-operation of a "friendly crediSthly. All proceedings under the court are to be tor," and to procure the institution in his name of commenced by petition; the effect of this will be, what was well known by the title of “an amicable to dispense with the necessity of all the steps suit,” the object of which was to obtain thus indihitherto required as preliminary to the taking of an rectly the intervention of a court of Equity. account. All their old remedies, however, are left But here again the owner was not unfrequently to incumbrancers, it being optional with them to avail destined to find himself disappointed, inasmuch as themselves of the provisions of this act. But pend- the circuitous expedient of an amicable suit, as a ing proceedings for a sale, the court has the power means of converting the lauds charged with incumto restrain proceedings at law or in equity for fore- brances into a fund for their liquidation, was depenclosure, redemption, or sale. Previously to this dent for its success, not merely upon the disposition enactment, until a decree in one cause was ob- of the friendly incumbrancer, but upon the priority tained, the court had no power to restrain the prose- of his demand, or his ability to redeem the prior cution of any number of suits for the same purpose. incumbrances, which it was necessary, in the first

7thly. The Master in Chancery is the only ne- instance, to offer to redeem, otherwise his bill was cessary party to a conveyance to a purchaser, thus not in strictness maintainable, so that even the codispensing with conveyances from all persons hav- operation of a creditor was far from being a certain ing the legal estate.

resource upon which the owner could fall back in 8thly. It enables persons entitled to unredeem- his extremity. able charges, such as joiutures and annuities, to This disability, on the part of an owner to sell accept a gross sum by way of compensation, and his estate for the legitimate purpose of paying the enables the Master in Chancery to sell the lands incumbrances affecting it, has been removed for discharged of those charges, and include the com- the first time, in the history of our Jurisprudence. pensation in his report.

Proprietors of incumbered properties are, at last, 9thly. The obvious design of the act is to trans- regarded as practically competent to sell them, fer litigation from the land to the purchase-money, without the assent of their creditors, and this they which is to be lodged to the credit of the accountant- are empowered to do in two ways, either by private general.

contract, or through the medium of a judicial sale, Such are some of the most prominent features under the direction of the court of Chancery. of the measure which we shall from time to time

In our next number we will examine the differcanvass in detail. The distinguishing characteristic of the act may their relative advantages.

ent modes of proceeding under the act, and contrast be said to be, that it confers power on the owner of an incumbered estate to initiate proceedings to get rid of the incumbrances affecting the inheritance

GENERAL ORDERS FOR THE OFFICES OF THE TAXING (4.) A short description of the trust, and of the instru.
Dated the 9th day of October, 1848.

(5.) The names of the parties interested in or entitled to 1. That the offices of John O'Dwyer, Esq., and Edward the fund, to the best of the knowledge and belief of the

trustee. Tandy, Esq., two of the said Taxing Masters, shall, until

(6.) The submission of the trustee to answer all such further ordered, be held at No. 20, Upper. Ormond Quay, enquiries relating to the application of the stocks, securities, in the city of Dublin ; and the office of the third Taxing Master, to be appointed under the said Act, shall be in such or money

transferred, deposited, or paid in, under the Act


as the Court may think proper to direct. 2. That the several orders of the 25th day of October, attested copy thereof, is to be at liberty to enter a side bar

2. The party filing such affidavit on production of an 1845, relating to the office of Taxing Master, the times and rule to lodge or invest the money, stock, or security speci. hours of attendance thereat, the duties of the Taxing Mas-fied in such affidavit, in the Bank of Ireland, with the pri. ter, his powers, and the course of proceeding in his

office, vity of the Accountant-General

, to the account of the parshall in all respects apply to and govern the several Taxing

ticular trust. Masters appointed and to be appointed under the said Act 3. The Accountant-General, on production of an office of the last session, and their respective offices, and the clerks

copy of the affidavit and rule, is to give the necessary directherein. 3. That all Bills of Costs now standing by the said Gene- stock, securities, or money, to the account of the particular

tions for transfer, deposit, or payment, and to place the ral Orders of the 28th day of October, 1845, or by any trust; and such transfer, deposit, or payment is to be cerdecree or order, referred to the said John O'Dwyer, Esq. tified in the usual manner. as the Taxing Master of the court, and on which he has

4. The trustee having made the payment, transfer, or not certified the costs due, are hereby referred as well to the deposit, is forthwith to give notice thereof to the several said John O'Dwyer as to the other Taxing Masters appointed and to be appointed under the said Act, who shall regulate persons

named in his affidavit, as interested in, or entitled

to the fund. among themselves the distribution thereof for taxation, so

5. Such persons, or any of them, or the trustee, may as to avoid any unnecessary delay to the solicitors and suitors apply by petition, as occasion may require, respecting the of the court; and, to that end, each of said Masters shall investment, payment out, or distribution of the fund, or of be at liberty to adopt the whole, or such part as he shall

the dividends or interest thereof. think fit, of the proceedings which have already taken place

6. The trustee is to be served with notice of any applica. in respect to the taxation of any of said bills; and the cer- tion made to the Court respecting the fund, or the dividends tificate of any other of the said Taxing Masters, of the sum or interest thereof, by any party interested therein, or endue on such bills, shall be of the same force as that of the titled thereto. said John O'Dwyer, notwithstanding any reference of such

7. The parties interested in, or entitled to the fund, are costs to him by name.

to be served with notice of any application made to the 4. That the said Taxing Masters shall arrange a plan for Court by the trustee, respecting the fund in Court, or the determining the future references of all costs under the des interest or dividends thereof. crees, or orders of the court, or under requisitions to each of them, in weekly rotation; such plan to be submitted to petitioner has first named a place where he may be served

8. No petition is to be set down to he heard, until the and approved of by the Lord Chancellor. 5. That when there shall have been any former taxation the Court, relating to the trust fund.

with any petition, or notice of any proceeding or order of of costs in the same cause or matter, all references therein for the taxation of costs shall be made to the Taxing Mas entered, under the said Act

, are to be entitled in the

9. Petitions presented, and affidavits filed, and rules ter before whom such former taxation has taken place, either matter of the said Act, (11th and 12th Victoria, c. 68.) on a reference from the court, or upon the request of a and in the matter of the particular trust. Master in Ordinary ; but any taxation had before the said John O'Dwyer, Esq. before this date, shall not be deemed

MAZIERE BRADY, C. a former taxation within this rule, so as necessarily to re

T. B. C. SMITH, M. R. quire that all future references for taxation in the same cause or matter should be made to him. 6. That the Taxing Masters shall be respectively assistant

Court Papers. to each other; and that in the discharge of their duties, and for the better despatch of the business of their respective offices, any Taxing Master may tax, or assist in the taxa EQUITY SITTING.-MICHAELMAS TERM. tion of a bill of costs which has been referred for taxation to any other Taxing Master, and in such case may certify sum due in respect thereof.


T. B. C. SMITH, M. R.


O'Brien v. Scott, Motion. Duffy v. Mitchell, P.P. GENERAL ORDERS IN CHANCERY.

Galway v. Fitzgerald, Cause. Littledale v. Stratford, P.P. Pursuant to the provisions of the 11th & 12th Vic. c. 68. Dundas v. Blake,

Martin v. Darcy, do. order pro Con.

do. Littledale v. Foxall, P.P. "An Act for better securing Trust funds, and for the relief of Trustees.


order pro Con. FROM TRINITY TERM,

Littledale v. Dwyer, P.P. Dated the 9th day of October, 1848.

Leech v, Law, R. Ex. M.

Banfield v. O'Shaughnessy, 1. Any trustee desiring to pay money, or transfer stock Lovett v. Knipe, P.P.

P.P. ór securities into the name of the Accountant-General of Irvine v. Rogers, P.P. order Kelly v. Murphy, P.P. order the court of Chancery, under the said Act, is to file an

pro Con. affidavit, entitled in the matter of the act and of the trust, Ryan v. Ryan, P.P.

Rainy v. Blake, R.M. and setting forth:

Fitzmaurice v. Sadlier, B.A. Bristow v. Bristow, P.P. (1.) His own name and address.

Vance v. Ranfurley, P.P.

Walsh v. Walsh, P.P. order (2.) The place where he is to be served with any petition, Hunt v. Hodges, P.P. or any notice of any proceeding or order of the court relat- Booth v. Dublin, Dundrum, Stamer v. Nesbitt, rehearing ing to the trust fund.

and Rathfarnham Railway pursuant to order, 25th (3.) The amount of stock, securities, or money which Company, P.P.

February, 1848, R.Ex.M. he proposes to deposit, or to transfer, or to pay into court, Burke v. Killikelly, P. P.

Same v, Same, do. do. to the credit of the trust.

order pro Con.

pro Con.

pro Con.

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