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Frish Jurist

No. 30.- VOL. I.

MAY 26, 1849.


Per Annum, £I 106

Single Number, 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 :

ROBERT LONG, Esq., Court of Chancery, inapd

Court of Exchequer S JOHN BLACKHAM, Esq., and cluding Bankruptcy

Chamber .......

A. Hickey, Esq., Barristers-atJons Pitt KENNED Y, Esq., Bar

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

Queen's Bench, includ- (FLORENCE M‘Carthy, Esq., and WILLIAM BURKE, Esq., and ing Civil Bill and Re- SAMUEL V. Peet, Esq., Bolls Court........ WILLIAM JOHN DUNDAS, Esq., gistry Appeals........ Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in- ( CHAS. H. HEMPHILL, Esq., and CHARLES HARE HEMPAILL, Esq. cluding Manor Court WILLIAM HICKSON, Esq., Bar. and

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

risters-at Law.

Common Pleas....



{ Roter-ar-Caterin, Esq., Barris.

DUBLIN, MAY 26, 1849.

understand the meaning to be, that the Courts of Common Law are to have power to refer, when the “ whole business" is transacted at common law.

The bill in terms only applies to cases where there AMONGST the contemplated measures of the is “ any part” of such business so transacted. But Session, we have to enumerate one for the conso- | the intentiou is, that in cases where the costs are lidation and amendment of the laws relating to wholly legal, or are partly legal and partly Attorneys and Solicitors in Ireland. The design equitable, or partly legal and partly for business of the measure is to remove some manifest defects, done out of Court, and in all cases of business but its language is sometimes obscure, and its done in their own Courts, as the Equity Exchequer ; euactments not sufficiently distinct or methodized. Courts of law will have the power to refer, and

It proposes to make all costs, whether for busi- in all other cases the Court of Chancery. ness done in Court or otherwise, taxable; at least, Independently of rendering every description of we conclude this to be the design, from the follow- | business taxable, no submission of the applicant ing part of the second section :-"And upon the for taxation, to pay the sum that shall be found application of the party chargeable by such bill due upon such taxation, is required; but by the within such month--month after service)—it shall eighth section payment of the amount may be enbe lawful, in case the business contained in such forced according to the course of the Court in bill or any part thereof shall have been transacted which such reference shall be made, and a Court in the High Court of Chancery, or in any other of Common Law may order judgment to be entered Court of Equity, or in any matter of bankruptcy up for such amount with costs, unless the retainer or lunacy, or in case no part of such business shall shall have been disputed previous to the commencehave been transacted in any Court of Law or ment of the taxation. We apprehend, no applicaEquity, for the Lord High Chancellor or the tion for taxation would be made where the retainer Master of the Rolls, and in case any part of such was disputed : nor should a reference be permitted, business shall have been transacted in any other if the relation of attorney and client were matter Court, for the Courts of Queen's Bench, Common of controversy. Pleas, or Exchequer, or any Judge of either It is proposed to allow service of the bill either (quere: sic in orig.) of them, and they are hereby by delivery, as at present, or by sending it through respectively required to refer such bill, and the the post, or leaving it at the counting house, client's demand of such attorney or solicitor, executor, ad- office of business, dwelling-house, or last known ministrator, or assignee, thereupon to be taxed and place of abode. We think, in matters of this sort, this settled by the proper officer of the Court in which postal latitude of service unwise. In proper cases, such reference shall be made, without any money the Court will substitute service, but legislative laxity being brought into Court."

on this point is injudicious. The necessity for furThis clause comprehends various classes of busi- | nishing the bill is very properly extended to all cases ness; business transacted in a Court of Equity, whether by the attorney himself or his representaeither altogether or together with business done in tives. Under the existing law the attorney was rea Court of Law, or business hitherto not taxable ; quired to deliver his bill a month before the combusiness not transacted in any Court, and business mencement of the action, but, singularly enough, it transacted exclusively or in part in a Court of Law. was held, on the construction of the previous statute, lu the arrangement of the sentences, although we to be unnecesssary for his executor or administrator

to do so, thus, in all such cases, frustrating the in-point being the absence, or the contrary, of sum. tention of the legislature, to give the client a reason- mary jurisdiction. able time to consider whether the demand were fair If there be any doubt on the question it would be or exorbitant.

well to remove it by making the proviso we have No reference for taxation is to be made after ver- cited more explicit and comprehensive. dict or writ of inquiry, nor after the expiration of In the course of our observations we guard our. twelve months after the bill has been delivered or selves from the expression of any censure upon the sent, except under special circumstances.

introducers of the proposed bill, as deserved either The want of summary jurisdiction of courts of law by its language or design, the former being taken and equity over the representatives of attorneys in ipsissimis verbis from the English act of 1843, 6& cases where such representatives had possession of 7 Vic. c. 73; the only matter of blame that could the client's deeds, occasioned much inconvenience attach would be the following too exactly that and sometimes gave rise to much extortion; the pre- measure. No one who has witnessed or suffered sent measure contains the following proviso :- from the charges of solicitors in matters not taxable

, “That it shall be lawful for the said respective but must rejoice at the prospect of protection from Courts and Judges, in the same cases in which demands, whose exorbitancy, as in cases of loans, they are respectively authorized to refer a bill, to was ill-proportioned to the need of the client. The make such order for the delivery by any attorney respectable practitioner never dreads scrutiny

, and or solicitor, or the executor, administrator, or the knavish one always requires it. assignee of any attorney or solicitor, of such bill as aforesaid, and for the delivery up of deeds, documents, or papers in his possession, custody, or In the recent case of Delany v. Newland, (I L. power, or otherwise touching the same, in the Jur. 238,) a principle has been laid down by the same manner as has heretofore been done, as Court of Exchequer, in an elaborate judgment by regards such attorney or solicitor, by such Courts the Lord Chief Baron, in which he reviewed all the or Judges respectively, where any such business authorities, that in every case where a bill is shern had been transacted in the Court in which such to be tainted with fraud, the onus is thrown upon order had been made."

the holder of proving that he has given value. This proviso would appear to relate to cases This decision will, we trust-at least, in this between Solicitor and Client merely; but the evil country-settle a question which the decisions of is not confined to such cases. Thus, in Roberts v. the Court of Queen's Bench in England, and that Prior, (not yet reported,) the mortgagee had not of Howard v. Shaw, (9 Ir. L. Rep. 335,) in Ireobtained possession of the title-deeds; the mort- land, had left unsettled. The view taken by Mr. gagor had, subsequently to the mortgage, given Baron Parke, in Bailey v. Bidwell

, (13 M. & W. them to the solicitor. In a foreclosure suit by the 76,) that “the taint of fraud or illegality afforded a mortgagee, a final decree for sale had been ob- presumption that the person who had been guilty tained. For the purpose of making out title, an of the illegality would dispose of it, and would place application was made against the representative of it in the hands of another person to sue upon it," is the solicitor for the deeds, without prejudice to so perfectly consonant with the ordinary facts in any lien he might be enabled to establish on the such cases, and those which actually existed in the funds to be realized by the sale. It was plain, principal case, as to leave no doubt upon any mind that against the mortgagee the solicitor or his re- of the correctness of the conclusion of that learned presentative had no lien, and also plain, that, as Judge. And such a taint being once thrown upon against the solicitor himself the Court would have the holder's title, the propriety of compelling him complete jurisdiction to enforce the production of to prove that which, if true, he can have no diffithe deeds, but the Master of the Rolls held he had culty in doing, the whole transaction being pecuno summary jurisdiction against the personal repre- liarly within his own knowledge, is clearly prefersentative, and it had been previously so held in able to that of throwing upon the defendant the England; although, independently of authority, it onus of proving the absence of any consideration would have appeared to us that every represent- flowing from the holder—a proof which, from the ative or assignee of an attorney would be subject very nature of the thing, is iu every stage beset to all the equities to which the attorney himself with difficulties, and is probably, in nine cases out would have been liable; and in the case of the of ten, incapable of proof by the defendant. assignee of Mills v. Lester, (Hayes, 2012) the The only case which created a serious difficulty Court of Exchequer exercised summary jurisdic- in the way of the conclusion arrived at by the tion over the assignee of an insolvent attorney, Court, was that of Howard v. Shaw, a case which who had unwarrantably obtained possession of received much consideration at the bar and on the papers belonging to the testator of the defendant. bench. The decision in the principal case, howThere was this distinction between the authority ever, virtually over-rules that of Howard v. Shaw, we have cited and the class of cases to which we so far as this question is involved, the Court being refer,--that the question arose between the repre- of opinion that the point did not properly arise in sentative of the client and the assignee of the Howard v. Shaw, as in that case there was an attorney, whilst in Roberts v. Prior and similar adequate consideration for the notes, (See judge cases, which are not of unfrequent occurrence, no ment, p. 351,) and because the case of Bailey relation of attorney and client has subsisted. But v. Bidwell had not been cited to the Court. It is that distinction is not the grouụd of decision, the also observable, that the cases referred to and

relied upon in the judgment of the Court in Vicars v. Gale

Keller v. Burrowes Howard v. Shno, as supporting their view, the Scanlan v. Towers Kelson v. Lewis one Smith v. Martin, (9'M. & W. 304,) in the Dunscombe v. M'Carthy Verschoyle v. Hamilton Court of Exchequer--the other, Bramah v. Ro- Harshaw v. Kidd

Brooke v. Horner

Booker v, Murphy berts, (1 Scott, 350,) in the Queen's Bench, were Campbell v. Hackett Bolton v. Loughpane both referable to the particular pleadings before M'Neill v. Sharpe

Stuart v. Buchanan the Courts. In the former, the defendant pleaded Lupton v. Stevenson Johnson v. Mason fraud—the plaintiff, that he had no knowledge of Montgomery v. Stevenson Christy v. Marston it when he took the note ; the issue then was, as

Jones v. Curtis

Donnelly v. M'Clintock Woodroofe v. Vero

Ward v. Driscoll to the knowledge of the fraud, not whether there

Edwards v. Edwards Ahern v. Daly was any. p. 307, Alderson, B., says, in answer De Morrin v. Henry Haldane v. Hosford to an argument at the bar, “ Assuming that the Reid v. M'Neale

Lewis v. Earl Charleville circumstances of fraud alleged in the plea are ad- Guiry v. O'Loughnane Bagnall v. Horne mitted as facts by the replication, how do they Hall v. Williams O'Donnell v. O'Donnell afford prima facie evidence of the plaintiff's know Little v. Crumly

Hagan v. Griffith
Same v. same

Whelan v M‘Donald ledge of that fraud. When a plea states facts Marq. Donegal v. Crommelin M'Creight v. M'Creight amounting to fraud, and alleges that the plaintiff Bates v. Rea

Cormick v. Wall had knowledge of them, the issue, according to Burke v. Dolphin

Eyre v. Wall your argument, is on the plaintiff; then, suppose Ahearne v. Scannell Smith v. Cooke be proves consideration, which way ought the ver- Peyton v. Lloyd

Eyre v. Donelan dict to be? His having given consideration,

Crozier v. M‘Morran Hazlitt v. Stewart proves nothing conclusively as to his want of know- Greene v. Stoney

Barton v. Whelan
Magill v. Moore

Com, Ch. Beq. v. Archbold ledge of the fraud." In the latter case, the ques. Kelly v. Murphy

Stewart v. Marquis Donegal tion arose on a demurrer to the replication, which Murphy v. Murphy Ruskell v. Church denied the fraud, and stated generally that the Kelly v. Briscoe

Brabazon v. Lord Lucan plaintiffs had given consideration.. e "for inoneys M'Veagh v. Norton

O'Keefe v. Lanigan advanced by and due and owing to them”—a state

Hornibrooke v. Ware of pleading which did not fairly raise the question Marquis Donegal v. Dunbar Maher v. Lenigan

Maher v. Smith for which it was relied upon as an authority. In Simcocks v. Reed Bentley v. Burke answer to the fraud alleged in the plea, the plain Simcocks v. Moody Piers v. Piers tiff replied, “I have given consideration;" which, Radcliffe v. Boyle

O'Brien v. Bernard. if proved, would in any case be a sufficient answer Mendham y. Molloy to the allegation of fraud, unless he was without notice of it. The only question for the Court was, whether he should not have gone further, and set

26th April, 1849. out that consideration more fully, which they thought he was not bound to do.



Court Papers.

Note --The words printed in Italics are proposed to be inserted in committee.

Sec. I. Whereas it is expedient that further faciChancery.

lities should be given for the sale of incumbered LIST OF CAUSES.

estates in Ireland, be it enacted, &c., that it shall Clarke v. Clarke Thompson v. Ponsonby

be lawful for Her Majesty by warrant under the Meagher v. O'Meara Power v. Drake

royal sign manual to appoint any number of persons Smyth v. same Nixon v Morgan

not exceeding three to be commissioners under this M*Farlane v. Campbell Fawcett v. Davis

act during Her Majesty's pleasure and upon every vaElrington v. Att.-Gen. Perrin v. Dolan

cancy to appoint some other person to such office to Kelly v. Walcott Comerford v. Corley

be styled “the commissioners for sale of incumbered Kelly v. Walcott

Sheppard v. Sullivan
Siree v. Moore
Earl Shannon v. Ede

estates in Ireland." Gt. S & W. Ry. Co. v. Lyons Farrer v. Whaley

II. That the commissioners shall have a seal, and Wilson v. Wilson Same v. Coote

shall cause to be sealed therewith all orders, conBrownrigg v. Cruikshank Graham v. Stuart

veyances, &c, under this act and such orders, &c., Henry v. Campion Carey v. Carey

or copies thereof purporting to be sealed with the Moorehead v. Rutherford Same v. same Workman v. Walker

seal of the commissioners, shall be received in eviTaylor v. Jackson Gregg v. Marquis Donegal Barry v. Cronin

dence without any further proof thereof. Onge v. "Onge Cloughly v. Jameson

III. All acts, &c., authorized to be done by the Same v. Molloy Kirkwood v. Lloyd

commissioners under this act may be done by any Phibbs v. Irwin Cochran v. Brown

two of such commissioners. Law v. Stafford Perrott v. Plummer

IV. The commissioners, with the consent in every Cantwell v, Martin

Calvert v. Calvert
Johnston v, Bryce
Burke v. Ouseley

case of the commissioners of her Majesty's treasurya Warner y. Macrory Purcell v. Purcell

may appoint a secretary and such clerks, messen. Johöston y Earl Gleogall Collins v. Gray Cooks v. Scott Fulton v. Walker

Prepared and brought in by the Solicitor General for French V. Maunsell Same v, Woodward

England, Lord John Russell, and Sir William Somerville.

gers and officers as they shall deem necessary, and XI. All such general rules made and confirmed may remove same.

as aforesaid shall be laid before both houses of parV. That no commissioner, secretary or other offi- liament within one month from the confirmation cer shall hold office for more than five years from thereof, or if parliament be not then sitting, within the passing of this act, and thenceforth until the end one month from the commencement of the next of the then next session of parliament.

session. VI. That the commissioners of her Majesty's XII. It shall be lawful for the commissioners

, by treasury may direct a salary, not exceeding £-, to summons under their seal, to require the attendance be paid to the commissioners under this act, and at a time and place to be mentioned in such sum. may regulate the salaries of the secretary and other mons of all persons they shall think fit to examine officers under this act, and same, and other expen, in relation to any matter before them, and require ses of carrying this act into execution, shall be paid such persons to produce all deeds, &c. relating out of monies to be provided by parliament. thereto, and examine such persons on oath or affir.

VII. No commissioner shall, during the continu- mation; and every person summoned to attend who ance of his office, be elected for or sit as a member shall fail to appear, or refuse to be sworn, or shall of the House of Commons.

not answer all lawful questions, or fail or refuse to VIII. Before entering on the execution of his produce any such deeds, &c. in his custody, postes office every commissioner shall take the following sion or power, shall be liable to the same penalties, oath: “I, A. B., do swear that I will faithfully, &c. as any person failing to appear or refusing to impartially, and honestly, according to the best of give evidence in any suit or matter in the Court of my skill and judgment, fulfil all the powers and Chancery in Ireland, and the commissioners shall duties of a commissioner under an act, passed in have the like powers, &c. for enforcing the attenthe year of the reign of Queen Victoria, intituled dance of persons summoned, for punishing persons &c.” And the appointment of every such commis- failing to appear or refusing to be sworn, &c., and sioner, with the time when, and the name of the for enforcing all orders made by them under this justice or baron before whom he shall have taken act as are vested in the said Court of Chancery in said oath, shall be forthwith published in the Dublin relation to any suit or matter depending therein. Gazette.

XIII. The commissioners may receive in evidence IX. The commissioners shall frame and cause to affidavits, and same may be made before commisbe printed and circulated, as they shall see occasion, sioners of the Court of Chancery, or the commissionforms of applications and directions, indicating the ers under this act may appoint persons to take same, particulars of the information to be furnished to the and to examine witnesses. commissioners on applications to them under this XIV. Orders made by the commissioners may be act, with reference to title, incumbrances, and the enrolled in the Court of Chancery in England, and circumstances of the land, and such other informa- may be enforced in the same manner as orders untion as, in the judgment of the commissioners, may der the 41 Geo. 3, c. 90. assist them in forming an opinion on such applica XV. The commissioners shall have all the powers tion, and also such other forms and directions as and authority of a court of Equity in Ireland for the they may deem requisite.

investigation of title, and for ascertaining and allow8. The commissioners shall, from time to time, ing incumbrances, and charges, and the amount due make such general rules for regulating the course thereon, and settling the priority of same, and the of procedure under this act, and securing the due rights of owners and others, and generally for ascer. and prompt distribution of the moneys received upon taining, declaring and allowing the rights of all persales, amongst or for the benefit of the persons en- sons in any land or lease, in respect of which any titled thereto, and for the protection of the interests application may be made under this act, or in the of persons under disability and of future interests, money to arise from sales under this act, but their and for giving effect to this act; but no fees or sums procedure shall be according to such general rules shall, under any general rule or otherwise, be pay- as aforesaid, or, where same shall be inapplicable able to any officer or person appointed under this at the discretion of the commissioners, and the comact in respect of any proceeding under this act, save missioners may send cases for the opinion of a court in respect of any copy or extract of any order, &c., of Law, and direct issues of fact to be tried by a such sum not exceeding three half pence for every jury, and, subject to any such general rule, the 90 words, as shall be paid for the making of such commissioner's may refer to any one of such comme copy, &c., and every such general rule shall be laid missioners any such inquiries or matters as they may before her Majesty's Privy Council of Ireland, and think fit, and such commissioner shall have, in reby order signed by six of said Privy Council, said lation thereto, the like powers vested in any two Privy Council may confirm or disallow any such commissioners under this act. rule, or alter, amend, or remit same to the commis XVI. The owner of any incumbrance upon land sioners for further coneideration, and (when con- in Ireland, or any lease in perpetuity, or any lease firmed) every such general rule shall be enrolled in for a time whereof vot less than sixty years shall be the Court of Chancery in Ireland, and when so en unexpired, subject to incumbrance, may, within rolled shall be binding on the commissioners, and three years from the passing of this act, apply to shall be of the same force as if enacted by the au- the commissioners for a sale under this act. thority of parliament: provided that same may be XVII. For the purposes of this act land shall not amended, rescinded, or altered by other rules, con be deemed subject to an incumbrance unless same firmed and enrolled in like manner.

shall affect a terin of not less than fifty years abso

lute, unexpired, or a greater estate on such land, the estate sold, or, as the commissioners by general nor unless such incumbrance shall have been created rule or special order, shall direct, and on the notiby the owner of an estate of inheritance, but an in- fication by the bank to the commissioners of the cumbrance charged under a power created by an receipt of the money, a certificate, under the seal of owner of an estate of inheritance shall be deemed the commissioners, of such receipt shall be endorsed to have been created by such owner, and such lease on or written at foot of the conveyance, and on such as aforesaid shall not be deemed subject to incum- payment into bank the purchaser shall be discharged brance where same shall affect a derivative estate or from all liability as to the application of the purinterest ouly, or less than the whole estate created chase-money, and the certificate of the commissionby such lease, unless such incumbrance shall have ers shall be evidence of payment. been created by the owner of or persons entitled to XXIII. Every such conveyance upon the sale of the whole estate created by such lease, but any in- land shall be effectual to pass the fee-simple and cumbrauce charged under a power created by the inheritance of the land subject to such tenancies, owner or person entitled to such whole estate, shall leases, and under-leases referred to therein as be deemed created by such owner or person entitled. aforesaid, but save, as hereafter provided, dis

XVIII. When any incumbrances shall be subject charged from all fornier and other estates, rights, to any limitation, or be held on trust, the commis- titles, charges, and incumbrances whatsoever, of sioners may proceed, upon the application or con- her Majesty, her heirs and successors, and all other sent of the first person entitled to the income of such persons whomsoever ; and every such conveyance incumbrance, or of any trustee thereof, or other upon the sale of a lease shall pass the estate creperson whose estate or interest in the incumbrance ated or agreed to be created thereby, and remainappears to the commissioners sufficient to enable ing unexpired, subject to the rent and covenants him properly to apply or consent in respect of the annexed to the reversion, and to such tenancies, interests of the parties interested in the incumbrance. leases, and under-leases as are referred to in such

XIX. The commissioners shall direct notice to be conveyance, but save as aforesaid, and as hereafter given to any person in such manner as they shall provided, discharged from all rights, titles, charges, think fit, and hear any parties interested in the land &c., affecting same; where any land or lease is or lease who may apply to them, and may investi- sold, subject to any aunual charge or apportioned gate the title and incumbrances affecting same, and part thereof, same shall remain payable out of the state and circumstances of the land or lease, so such land or lease as in the conveyance, &c., shall far only as may be necessary to determine whether, be expressed. under all the circumstances, it is expedient that a XXIV. Such conveyance shall not affect any sale of all or any part should be made, and may, at right of common or way, or other easement or their discretion, make an order for sale of all or any rent-charge in lieu of tithes, crown or quit-rent, or part thereof.

charge under the drainage act, 5 & 6 Vic. c. 89, XX. Where a sale shall be made, the commission or the act amending same, 10 & 11 Vic. c. 32. ers shall ascertain the tenancies of occupying tenants, XXV. The commissioners shall have power to and any lessees or under- lessees, subject to whose order the delivery to the purchaser of all leases, tenancies, leases or under-leases the owner or incum- &c., and shall, on the application of the purchaser, brancer, applying to the commissioners under this issue an order to the sheriff to put such purchaser act, may be owner or incumbrancer, and may give in possession of all lands not in the occupation of such notice and make such inquiries as may be ne-lessees, &c., subject to whose leases the sale shall cessary to secure the rights of such tenants, lessees, be made, and who shall have attorned to such puror under-lessees, and the sale shall be made subject chaser within a time limited by such order, and to the tenancies, leases or under-leases so ascer. same shall be executed in like manner as a writ for tained, and when the commissioners think fit, such the delivery of possession. sale may be made, subject to any annual charge, or XXVI. The comnissioners shall, out of the pursuch apportioned part as the commissioners think chase money received on the sale of any land or fit should remain charged thereon.

lease under this act, pay the costs of and conseXXI. Where the cominissioners make an order quential on the application for the order for the for sale, the land or lease shall be sold under the sale, as they shall think fit, and the expenses of control of the commissioners by public sale or pri- and incidental to the sale, and the surplus shull, vate contract together or in lots, and at such time after payment of such costs, &c., under the order and place as the commissioners think fit, and the of the conimissioners, be applied in or towards conveyance, &c. shall be made by the commission payment or satisfaction of the incumbrances or ers, and the execution by any other party shall be charges which affected such land or lease, or part unnecessary, and such conveyance shall refer to the thereof, according to their priorities, and shall, tenancies, leases or under-leases (if any), and the subject as aforesaid, be paid to the owner, precharges (if any), subject to which the sale is made, viously to such sale of such land or lease, where and may be in the form in the schedule of this act such owner was absolutely entitled thereto, or contained, or to the like effect, with such limitations where not so entitled, be laid out in the purchase of uses and other additions, &c. as, with the appro- of land, which shall be limited and settled to the val of the commissioners, the purchaser may direct. same uses, upon the same trusts, for the same

XXII. The purchase-money, in every case, shall purposes, and in the same manner, as the land or be paid into the Bank of Ireland to an account in lease, or part sold, or such of them as shall be the name of the commissioners, and to the credit of then subsisting or capable of taking effect; and

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