extended to this act. Whereas by the 5 & 6 Vict. c. 98, intituled An Act to ' amend the laws concerning Prisons, the mayor, aldermen, ' and burgesses of boroughs in which there shall be a sepa'rate Court of Sessions of the Peace, are empowered by their councils to borrow money for building or enlarging 'any prison, court house, or other buildings used therewith, ' and to secure the repayment thereof: and greater facilities * should be given for raising and repaying such monies: and ⚫ 'The Commissioners Clauses Act, 1847,' contains clauses 'with respect to mortages executed by the commissioners, ' and such clauses should apply to mortages and bonds by 'councils of boroughs under the said act relating to prisons :' Be it enacted, that the several clauses in the said Commissioners Clauses Act, 1847,' with respect to mortgages executed by the commissioners, save as to the provisions thereof inconsistent with this act, and save as hereinafter excepted, shall be incorporated with this act, and be applicable to all mortgages or bonds granted under the commission seal of any borough by virtue of the said recited act 'to amend the laws concerning Prisons.' 2. That every thing which by The Commissioners Clauses Act, 1847,' is provided or required, and all powers exercised by the commissioners respecting mortgages of rates or other property, may be lawfully done by the council of any such borough with respect to monies raised under the said recited act, to amend the laws respecting prisons:' and every thing by the said Commissioners Clauses Act, 1847,' required to be done in relation to the borrowing monies by the clerk to the commissioners, may be lawfully done by the town clerk of any such borough. 3. That the mortagees or bondholders of the corporation may enforce payment of the arrears of interest, or principal and interest by a receiver, as directed by the said 'Commissioners Clauses Act, 1847.' 4. That the 84th clause in the said Commissioners Clauses Act, 1847,' which provides for the repayment of monies borrowed by a sinking fund shall not be incorporated with this act. 5. That if the council shall borrow any money at a lower rate of interest than by securities given by them and then in force shall bear, the money so borrowed shall be paid off within thirty years, from the time when the money paid off was originally borrowed. 6. That to discharge the principal money borrowed, which the said council are required to pay off within thirty years, the council shall every year set apart a sum equal to six pounds ten shillings per centum on the amount borrowed and apply same, after payment thereout of the interest, as a sinking fund in paying off principal monies, and shall invest same in the purchase of Exchequer bills or other government securities, to be increased by accumulation, until the same shall be sufficient to pay off the principal debts to which same shall be applicable, or some part thereof, when same or part thereof shall be applied in paying off such principal debts as mentioned in the said 'Commissioners Clauses Act, 1847.' 7. That this act may be amended or repealed. CAP. XL. An Act to alter the mode of assessing the funds leviable in the county of Inverness, for making and maintaining cer 'Whereas by the 7 & 8 G. 4, c. 43. being An Act to amend the laws in Ireland for divisions of parishes, and for uniting parts of parishes, and for erecting chapels of ease, and making perpetual cures, it is enacted, "that the Lord 'Lieutenant of Ireland, with the assent of the major part ' of the privy council, six at least consenting, and with the approbation of the archbishop of the province and the bishop ' of the diocese, certified under their hands and seals, at'tested by two or more witnesses, to divide old parishes, or to separate any parish, and to unite parishes and to erect 'same into new parishes:" and whereas it is also enacted, "that when churches or parishes shall be united, having ⚫ had distinct patrons, the Lord Lieutenant and council as 'aforesaid, with the approbation of the archbishop and bishop ' in whose province and diocese the churches were situate, 'shall divide the patronage among the patrons, according to the yearly value of the parish whereof they are patrons, the 'consent of each patron being first had and entered in the instrument for erecting the said union; and such settle'ment shall be final and binding to all patrons, and all parties 'for ever, reserving unto every archbishop and bishop, ' registrars and schoolmasters, their dues out of every parish 'so united: provided that when the King is entitled to the presentation of any churches so to be united, he shall, af'ter such union, upon the first vacancy, have the first presentation to such united church, and afterwards, upon the 'next vacancy, the other patrons, as the Lord Lieutenant ' and council shall direct:" and whereas by the 8 & 9 Vict. c. 54, it is enacted, that where churches or parishes shall 'be united, the Lord Lieutenant may with the assent and advice and approbation aforesaid, certified as aforesaid 'with the consent of each patron, affected by the creation ' of such union, (first had and entered in the instrument 'for erecting the said union,) make such a settlement of the patronage of such union or parish, as in his opinion the case shall require; and same shall be final, reserving unto ' every archbishop and bishop, registrar and schoolmaster, 'their dues provided, that when the consent of the Queen, 'is to be given to any such settlement, or to making any ' union, the consent of the Lord Lieutenant shall be as good and valid: and greater facilities should be afforded for the 'union and division of parishes in the settlement of the patronage' be it enacted, that after the passing of this act so much of the before-recited acts as requires the consent of patrons is hereby repealed. : 2. That after the passing of this act, when any such division or union, is to be effected, an instrument containing the plan for the division or union, marked and coloured on a sheet of the ordnance survey of Ireland in which such parish or part of a parish is situate, and annexed to such instrument, and also for the settlement of the patronage of all the parishes and unions altered or created, and having endorsed upon same the approbation of the archhishop hav- NEW LAW BOOKS received by EDWARD J. MILLI ing jurisdiction in the provinces in which same are situate, and of every archbishop, bishop, or persons entitled to episcopal jurisdiction in the said parishes and unions, as diocesans thereof, certified as aforesaid, shall be lodged in the council office in Dublin castle, and a copy of same sent to each of the patrons, &c. whose consent is necessary to KEN, Law Bookseller and Publisher, 15, COLLEGE GREEN. SMITHS SELECTION of LEADING CASES, 3rd Edition, by HEN SINGER KEATING, and JAMES SHAW WILLES, Esqrs. of the InnerTempis Brrristers. at law. 2 vols. 8vo. £2 12s. 6d. WILLIAMS on the LAW of EXECUTORS, 4th Edition, 2 vols. 8vo £3 8s. Just published, price 3s. by post 3s. 6d. OF DEBTOR AND CREDITOR IN IRELAND. and for the recovery of the possession of small tenements before Justice H. MORRISON, HAT MANUFACTURER, 17. WESTMORELAND-STREET, the proposed division or union, and with same a notice in LAW O new Act for the abolitition of arrest for sums under ten pounds INVITES the attention of Gentlemen to his large Stock of by whom it was approved; and if said instrument so altered CORK AND DOUBLE SOLED FRENCH BOOTS. be sent back to the council office, with their approbation endorsed thereon, such Lord Lieutenant and privy council, (as before, six at least consenting,) may make an order in council reciting the instrument as so altered by the Lord Lieutenant, and approved of by the bishops or archbishops as aforesaid and confirming same; and such order in council, whether confirming the original instrument or the instrument so altered shall be as valid as if the consent of such patrons, &c. had been given in the manner prescribed in the said recited acts, and the said union or division duly completed there-under: provided, that at the meeting of the privy council for the consideration of the said instrument, and objections thereto, any of the parties objecting, on giving three days notice to the clerk of the privy council, may be heard before such privy council by their counsel or agents. 3. And whereas in the said first-recited act it was enacted that the several archbishops and bishops of Ireland, and 'their successors, within their dioceses, might erect new 'churches in districts to be formed from contiguous portions 'of adjoining parishes, as to said archbishops and bishops 'should seem proper: and whereas the said act did not pro'vide for the forming of such districts from contiguous por'tions of adjoining parishes in different dioceses, for which it may be convenient to provide;' be it enacted, that any of the archbishops and bishops of Ireland and their successors, or persons having episcopal jurisdiction in contiguous dioceses, may erect new churches or chapels within districts to be formed from contiguous portions of two or more adjoining parishes in different dioceses, as to the said arch bishops and bishops and their successor shall seem proper. 4. That the bounds for such districts shall be ascertained by writing under the hands and archiepiscopal and episcopal seals, of the archbishop and bishop or concurring in the formation of such districts; and such writing shall set out the bounds and several townlands comprised within any such district, and marked and coloured on a sheet of the ordnance survey of Ireland, and annexed to such instrument in like manner as herein-before mentioned, and shall be transmitted to the several incumbents and to the Lord Lieutenant in council for the purposes specified in the said act herein-before recited in respect to districts formed in the same diocese, and shall be entered in the registry of every diocese in which such newly created district shall be situated, and shall be enrolled in manner in said act set forth, upon payments to be made upon such entry and enrolment as therein mentioned. New French Trowsers, and Vesting materials, best West of England cloths, with a beautiful assortment of Irish Frieze, which he has had ex. pressly manufactured in black, claret, and Oxford, for riding, walking and Over Coats, &c. JOHN WATSON, in announcing the arrival of his new goods for the present Season, respectfully invites those gentlemen who have not hitherto tried him, to visit this department of his Establishment, now replete with a magnificent assortment of the above goods, and which he has rendered complete by the engagement of Cutters of the greatest experience. 50, UPPER SACKVILLE-STREET. GUTTA PERCHA, from its perfectly Waterproof quali ties, great durability, and non-conducting properties, I recommend to all anxious for dry and warm feet. All the objections to, and preju. ices against Gutta Percha, having arisen from clumsy workmanship, I ndertake to have the Soles put on, that they shall adhere firmly till com. letely worn through. MANLY THACKER, 80, DAME STREET. TROWSERS. The numerous testimonials received by 9, ANGLESEA.STREET, All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication. TERMS OF SUBSCRIPTION-(payable in advance): Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, Erish Jurist No. 7.-VOL. I. DECEMBER 16, 1848. PRICE (Per Annum, £1 10s. 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: In preceding numbers, we gave an account of several of the operations of the present poor law, and pointed out imperfections, as well in the enact ments themselves as in the machinery adopted for carrying them out,-errors in the valuation, which would disgrace the blotter of a common surveyor,wholesale mistakes in the rate-books, which are, nevertheless, regarded as infallible,-difficulties, sometimes insurmountable, in appealing against the rate, and frequent injustice in the collection of it. Before entering into further proof of the necessity, practicability, and expediency of the means we have proposed, we cannot dismiss our discussion on the details of the present enactments, without noticing some remaining salient defects; and shall now apply ourselves to the inequality with which the rating under the poor law presses on different classes of property. The 79th sec. of the 1 & 2 Vict. c. 56, contains a proviso "that no deduction shall be made from any rent-charge granted by granted, limited, or devised, for a life or lives, in way of jointure, or any other rent-charge or annuity being only, or for years determinable on a life in being." The We pointed out, also, means by which these imThe exemptions contained in this section, seein perfections might be obviated, by adopting the founded on no just principle; at least, we can see accurate valuation by the Ordnance, in place of the crude and unsatisfactory one under the poor nine cases out of a hundred, is tenant for life, no valid reason why the landowner, who, in ninetylaw,-attaching the townland sheets of the Ord- should be compelled to bear all the burden, when nance survey to the rate-books, the separate hold-the life-annuitant is freed from it. The duration ings being so distinguished and numbered as to of both estates is the same, why not the liabilities? adınit of an easy reference from one to the other, To test the hardship of imposing the whole tax on and giving a right of appeal for a reasonable time the proprietor, let us take the following example, after application for payment, and not, as at pre- which comes within our own knowledge. sent, after the striking of the rate. owner in fee of a property producing £600 per We have gone further-though, perhaps, in so annum, grants a perpetual rent-charge thereout of doing we verged on the limits prescribed to this £400 per annum, limited to his eldest son for life, journal-we could not confine ourselves to the bare remainder to trustees to the use of that son's issue, criticism of the wording of an act of Parliament, to the mere detection of error in valuations, or second son. Then comes the poor law, taxing-during and subsequently conveys the estate, subject to the mistakes in rate-books,-when we saw vital ob-rent-charge, and a life-interest for himself, to his jections to the whole principle on which the taxation was founded. Irishmen are constantly taunted with finding faults, without suggesting remedies, and we, being compelled to find fault with the present system of local taxation, felt constrained to suggest a practical remedy. We have suggested one, a general rate extending over all Ireland, and to every species of property, for the support of the poor; one which, in our opinion, would rescue the country from its present disastrous position. the life of the eldest son, who has two-thirds of the income-the remaining one-third, with the rate upon the whole. Now, here the quantity of the estates is the same, and the value of the son's interest-being a younger life-greater than that of his father, and yet the entire charge is cast on the shoulders of hin Least able to bear it. The effect of this distinctiou between these two life estates is in manifest contradiction to the intention of the family settlement, to justice, and to the principle on which the taxation under the poor-law is generally distributed. It is, therefore, obvious, that for all cases similarly circumstanced, this proviso of the section cited should be repealed. Again, mortgagees, and all other incumbrancers, including those in the section cited--the owners of perpetual unredeemable charges alone excepted are exempt from any deduction for poor-rate. Now, when it is remembered to what an extent Irish property is incumbered, some idea may be formed of the vastness of this immunity from taxation, and the disproportionate burthen thrown on the landed proprietor. To say that three-fourths of the received rental of Ireland is absorbed in the payment of incumbrancers, would be to under estimate the amount so applied; and it seems impossible to give reasons to justify the exemption of this vast class-"fruges consumere nati”—from contributing to the poor-rate. Indeed it has not been attempted except in the case of redeemable charges, such as mortgages, in which, it is contended, that taxing these securities would throw an undue supply of land into the market, every creditor being anxious to call in his loan. But, in the first place, this result would not follow, because, by taxing funded, and every other species of property, there would be no advantage gained by a transfer of capital from one taxed security to another; and secondly, if it did follow, it would be an advantage to the country at large, whose prosperity is retarded by nothing more than the existence of incumbered estates, which, with the powerful auxiliary supplied by the Incumbered Estates Act, would be brought into the market with a clear title, to be transferred from their embarrassed proprietors to a more solvent class. Funded property is likewise exempted, and this, in all likelihood, arose from the difficulty of fixing the per centage it should bear for poor-rate under the present system of local taxation; but, as already adverted to, by rendering this species of property liable to poor-rate, the objection-if it be an objection-to taxing mortgagees and other creditors would be obviated, and there would be no difficulty in estimating the amount of contribution if the tax were a general one. Nor should the enhanced value that land would acquire by the imposition of a general tax be overlooked; as it is obvious that the removal of a portion of the burden under which it is now sunk, would tend much to augment its value, and general taxation, by diminishing the desirableness of loans, would promote the investment of capital in land; in other words, sales, and not loans, would be promoted, and this is a national object of incalculable importance. The foregoing observations manifest the inequality of the imposition of the tax, and exhibit the injustice of exempting the most solvent descriptions of property from contributing to it. Burdening the income of a clergyman by double the ordinary rate, is an instance of an injustice of the opposite kind, and deserves especial notice, as the second rate, thus imposed, is not for the benefit of the poor, but of the proprietor liable to pay tithe rent-charge, and this double deduction is made on the gross income of the clergyman, which never represents the true, being subject to large reductions, in the way of payment to the Ecclesiastical Commissioners, and to other charges. It is observable also, that the machinery for the collection of the poor-rate would not be rendered in the least more complicated or expensive, by rendering the several charges on landed and other property liable to it; the primary liability might be left as at present, and an enactment enabling the person liable to any annual charge to deduct the rate from every pound in such annual charge, in the same way as a tenant deducts the landlord's proportion when paying his rent, would be sufficient in every case, except that of funded property, and here the tax could be deducted in the same way as the income tax now is. The difficulty of adjusting the proportion the incumbrancer should pay, whilst the rate varied from place to place, even over different parts of the same property, may have hitherto been a reason for dispensing with deductions from these classes of income, but will be no longer applicable should a general rate be adopted. The principle that land, and land only, should be chargeable with the support of destitution, implies that all poverty is rural, but this position is not sound, and, even if it were, now that the land, from an unforeseen and unaccountable visitation of Providence, has ceased to yield her strength, it seems in the highest degree inequitable to charge even the support of rural pauperism exclusively on land, and even that the present law does not do, but throws this support on the weakest portion of the population deriving a subsistence and an income from land. Farmers, who are the producers, and landlords who, though nominally the proprietors, are frequently the ill-paid agents of their own estates, have been placed in the brunt of the battle, whilst incumbrancers those hungry absorbents of the marrow of the soil-have escaped both the sight of destitution, and the legal necessity of contributing to its relief. Assuming that we have proved our point-that the present imposition of poor-rate is unequal, and that the tax should be levied from every species of property, we proceed once more to enforce our views, that the best remedy for existing distress, and only safeguard against supervening calamity, will be the imposition of a general tax. We may go further, and say that it is the only remedy that Ireland can apply. We have objected to local taxation, because, in the distressed districts, it would not supply sufficient means for relieving destitution, and because it tends to throw land out of cultivation. Undoubtedly there is much weight in the argument, that a local tax makes it the direct interest of the locality to be vigilant in lessening expenditure in the relief of the poor, and stimulates landholders and landowners to give employment; but this argument pre-supposes that each locality can support its own poor, and in the existing condition of Ireland is wholly untenable, as nearly one-half of the country is admittedly unequal to the support of the destitute. They must either be fed from other sources, or be left to perish of want. These are the alternatives. What are those other sources? 1. The national treasury. 2. Local taxation, confined to individual properties, with a rate in aid. 3. An equal general tax, levied off the whole island. a new trial, the court gave no opinion on the amendment. Tested by the language and intention of the statutes (9 Geo 4, c. 15, and 3 & 4 Vic. c. 105, s. 48), and the decisions thereon, the correctness of this amendment seems more than doubtful. The first of these statutes provided only for the It would be a delusion to expect that Irish amendment of variances between "any matter in poverty is to be perennially fed with supplies from writing, or in print, produced in evidence and the imperial sources. Except in periods of intense record;" so that the desired amendment must have distress, such as the late famine, we must struggle been taken from the written instrument in evidence, on with our own resources. This source of supply by substituting the ipsissima verba for the passage may be considered as cut off, and the question of se mistated. Under the latter statute, if the legal lection rests between the other two, and the last only effect only was intended to be stated, and mistaken, can be depended upon; for, let us ask, over what the mistake could be amended by introducing the extent is the rate in aid to be levied? Let us take, true legal construction, provided that in neither for instance, the province of Connaught; is there case the amendment was material to the merits. a large proprietor in that immense province who Thus a guarantee declared on as addressed to the can say, give me my own poor, including infirm and "plaintiff" alone, but which, in fact, was addressed able-bodied, and I will support them, and pay my to "the plaintiff, or person or persons, for the time proportion of the workhouse and union expenses. being, carrying on the business," was held clearly a Suppose, there would be- and the supposition is a variance that might have been amended at Nisi strong one-will that proprietor be able to bear a Prius, Boyd v.. Moyle (2 C. B. 644); and the same rate in aid for the support of his poorer neigh-rule was laid down in Evans v. Fryer (10 Ad. El. bours? It is obvious that he could not, and that 609); Whitwitt v. Scheer (8 Ad. & El. 301). But his property must sink into the general mass of whilst the court will exercise a large degree of destitution. If all Connaught cannot feed its own liberality in construing these statutes, there is no poor, would, could, or should Munster? Where, case to be found which decides that an averment then, can you place the limit, short of the whole can be introduced which would have the effect of island? What imaginary boundary can you draw changing the nature of the defence, the necesbeyond which the rate in aid is not to be extended? sity for such averment having been obvious to the If you studiously exclude the rich portions of the pleader. In Jelf v. Oriel (4 Car. & P. 22), Lord island from contributing to the rate in aid of Tenterden refused to amend a declaration which poverty in the poorer districts, you deliberately stated a special acceptance at A. or at B., and the consign their inhabitants to starvation. It is ob- bill appeared to be accepted at B. only, saying, “It vious that the principle of a local rate in aid is would only encourage want of care in drawing wholly inapplicable, and that the only alternative pleadings, that the act (9 Geo. 4) was meant only is a general tax. to aid clerical mistakes, and not such as any mau It being established, then, that the rate in aid who could read would avoid making." These obcan only be limited by the extent of the island, the servations, though valuable as coming from the only question remains between local taxation, con- author of the statute, as a warning to the practifined to individual estates, with a general tax, and tioner to avoid such mistatements, must be rea general tax without any reference to locality.ceived with the qualification, that if the defence This question, however, we must reserve to a future article.. or plea be not altered by the amendment, the court will direct it to be made. The 9 Geo. 4 admittedly applies only to cases of variance between the written instrument declared on and that pro THERE are few subjects of ordinary occurrence induced in evidence, Hanbury v. Ella (1 Ad. & El. legal practice which occasion greater difficulty to the practitioner, than to ascertain exactly the extent to which amendments of the record can be made at Nisi Prius. In a case argued before the Court of Exchequer, in Ireland, last Trinity Term (Doolan v. Laffan, June 15, 1848), the question arose on the following state of facts. The action was by the indorsee against the accommodation maker of a promissory note, made payable, in the body of the note, at a particular place. The declaration contained two special counts; the first averring special presentment, the other general. The plaintiff, having failed to prove presentment at the place mentioned in the first count, obtained leave, from the learned Judge who tried the case, to amend the record, by inserting an averment in the general count, that there were no effects in the hands of the maker of the note," thereby rendering the proof of presentment unnecessary. On the motion for 61); Gurford v. Bayley (3 M. & Gr. 781); Webb |
