Court Papers. Chancery JANUARY 18TH.-The following gentlemen were this day admitted to the degree of Barrister :-William Black, Luke Alexander Treston, Edward Eyre Maunsell, Beecher Lionel Fleming, Nathaniel Robert Powell, David John Henry, Henry Nicholas Reynolds, Charles Henry Tandy, George Barton, Daniel Delacherois, jun. LIST OF CAUSES.-HILARY TERM, 1848. Dowdall v. Burke, pleadings and proofs, order pro con. Same v. Same, pleadings and proofs. Cruise v. Mac Loughlin, plead. and proofs, order pro con. Curran v. Glover, report and merits, further directions. Coulson v. Williams, pleadings and proofs, order pro con. Jardine v. Forrest, pleadings and proofs. Howell v. Henchy, report and merits. Burrough v. Briscoe, writ of partition and return. Daly v. Burke, pleadings and proofs, order pro confesso. Warnock v. Eccles, return of judges' certificate. Mahony v. O'Connell, bill and anwer. Wingfield v. Williamson, report and merits. Shanahan v. Gorman, pleadings and proofs, order pro con. Same v. Same, ditto. Bruce v. Jones, pleadings and proofs. Jackson v. Tollett, report and merits. ditto. Reade v. Taylor, pleadings and proofs, order pro confesso. Kirkwood v. Lloyd, appeal from Rolls decree. Thompson v. Garnett, report and merits. Campbell v. Kelly, Rainey v. Blake, Magee v. Chaine, ditto. ditto. ditto. ditto. ditto. ditto. Vincent v. Fitzgerald, bill and answer. Keatinge v. Garde, pleadings and proofs, order pro con. Same v. Same. ditto. ditto. ditto. ditto. O'Sullivan v. M'Sweeny, return of com. par., rep. and mer. Baker v. M'Dermott, standing from Trinity Term, 1848, Nagle v. Nagle, and other causes, p. p., b. a., order pro con. Cochrane v. Finn, pleadings and proofs, order pro confesso Geale v. Nugent, Waller v. Molloy, ditto. ditto. ditto. ditto. Dawson v. Miller, pleadings and proofs. Campbell v. Frayne, reports and merits. Getty v. Graham, ditto. ditto. Dooner v. Dooner, pleadings and proofs, bill and answer. Spanner v. White, report and mertts. Brennan v. Kenny, pleadings and proofs. Massy v. Denny, ditto. ditto. Gerty v. Bruce, report and merits. Curtis v. Swiney, pleadings and proofs, bill and answer. Swiney v. Curtis, pleadings and proofs, order pro confesso. Moore v. Bate, pleadings and proofs. Hodgens v. Hodgens, ditto. ditto. Cochrane v. Cox, report and merits. Bateman v. Same, ditto. ditto. Fitzimon v. Egan, pleadings and proofs for dismiss. Burton v. Kennan, pleadings and proofs. Johnston v. Scott, ditto. Same v. Same, ditto. Ffrench v. Ffrench, ditto. ditto. ditto. ditto. Graydon v. Jessop, pleadings and proofs, order pro con. Hamilton v. Nagle, report and merits. Cotter v. Cotter, report and merits. Carr v. Osborne, pleadings and proofs. M'Farland v. Nevin, pleadings and proofs, order pro con. Garnett v. Armstrong, rep. ex. merits and further directions. Irvine v. French, bill and answer. Thompson v. Rea, pleadings and proofs, order pro confesso. Mahony v. O'Connell, et contra, report, exceptions & merits. Webber v. Lynar, report and merits. Ready v. Lynch, standing over, and p. and p. in sup. cause. Same v. Tierney, ditto. ditto. Turner v. Russell, report and merits. Hayden v. Same, Bill and answer, order pro confesso. Fawcett v. Biggs, p. and p., bill and answer, ord. pro con. Dwyer v. Ashe, report and merits. Luscomb v. Kenny, pleadings and proofs, order pro con. Crofton v. Galbraith, pleadings and proofs. O'Grady v. Atkin, and other causes, p. & p., ord. pro con. 115. That upon production to the registrar of the Court of Chancery iu Ireland of any order or of the office copy of any order of the Court of Chancery in England, or of the master of such Court, made in any matter arising under this act, and upon production to the clerk of the entries of the report office of the Court of Chancery in England of any order or of the office copy of any order of the Court of Chancery in Ireland, or of the master of such Court, every such order shall be entered in the registrar's book of the Court of Chancery of Ireland or England (as the case may be) by the officer to whom the same or an office copy of the same shall be produced, and such entry shall be certified by the proper officer at the foot of such order or office copy; and every order so entered shall be of the same force and effect and shall be enforced in the same manner in all respects as if it had been made by the court or by the master of the TO BE SOLD, the FURNITURE of a LAWYER'S court in the registrar's book or master's order book whereof it shall be so entered. 116. That on production at the office in Edinburgh kept for the registration of deeds, bonds, protests, and other writs registered in the books of council and session, of an office copy of any order of the court or of the master made in any proceeding under this act, and of an affidavit that application has been made to the person mentioned in such order for payment of the sum ordered to be paid by him, and that default has been made, then such order shall thereupon be registerable in like manner as a bond executed according to the law of Scotland with a clause of registration and decreet shall be interponed to such order, upon which execution shall pass, in like manner as execution passes upon a decree in CHAMBERS in HENRIETTA STREET. Any Barrister, or other person furnishing, could purchase the above on advantageous terms. Address X. Y., Office of the Irish Jurist. TO BE LENT on unexceptionable Landed Security, the following sums -£500 on Annuity, and £500 and £100 on Mort. gages or Judgment. If the interest on the latter sums be regularly pad, they would not be called in for some years. Apply to Messrs. Dooner and M'Cay, Solicitors, 5, Kildare street. AMES O'DRISCOLL, 9, ANGLESEA.STREET. CELEBRATED OVERCOAT, Price £2 58.; Extra Size, £2 10s. terponed to such bond, and shall have the like effect upon THE "REGISTERED SYRIAN PALETOT," and against the person named in such order as if he had executed such bond. 117. That where the only registered place of business of any company or the head office of any company which shall not have any registered place of business shall be situate in England, then the petition for the winding-up of such company shall be presented to the Court of Chancery in England, and where the only registered place of business or the head office of any company shall be situate in Ireland, then the petition for the winding-up of such company shall be presented to the Court of Chancery in Ireland, and such respective courts shall thereupon exercise all jurisdiction, powers, and authorities given by this act: provided that where any company shall have a registered place of business or shall transact business both in England and Ireland a petition for the winding-up of such company may be presented either to the Court of Chancery in England or to the Court of Chancery in Ireland, and thereupon, the said Court shall have and exercise in the matter all the authorities and provisions in this act contained in like manner as if the only registered place of business of such company had been situate within the jurisdiction of the same court. 118. That the court, in addition to all powers and authorities given by this act, shall exercise the like authorities, as would have been exercisable in a suit duly instituted ac cording to the rules and practice of the court, and to which all proper persons were parties, for the winding-up of the affairs of the company in the matter of which the petition is presented; and the general practice of the Courts of Chancery in England and Ireland in suits pending in the same, shall apply to all proceedings under this act. 119. That it shall be in the discretion of the court, on application to stay proceedings on any report or order of the master. 120. That if any matter shall arise in winding-up of any company which shall appear to the master not provided for by this act, or by any rules or orders in force, the master, JOHN WHITTY, MERCHANT TAILOR, SOLE AGENT FOR IRELAND. Best Dress Coat, £3 38.; Frock, full silk lined, £3 17s. Bd. 12mo. price 2s. 6d.-by Post, 3s. on the application of the official manager, or of any party A TREATISE ON THE LAW OF INTERPLEADER, to the winding-up, or at his discretion, may report the same to the court, who may make thereon such special order or such general order, as may be necessary under the circum stances. containing all the Reported Cases in this Country and in England, with an Appendix, containing the Act 9 & 10 Vic. c. 64, with Forms of Affidavits, Rules, Orders, and the Record on a Feigned Issue. By Jous BLACKHAM, Esq., Barrister-at-Law. Svo. price 16s.-free by Post. A PRACTICAL TREATISE ON PLEADING BY BILL in the COURTS OF EQUITY in IRELAND; adapted to the General Orders. By ALFRED M'FARLAND, Esq., Barrister.at. Law, Erish Jurist No. 13.-VOL. I. JANUARY 27, 1849. PRICE Per Annum, £1 10s 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-S cluding Bankruptcy Appeals....... Rolls Court........ Equity Exchequer........ ROBERT LONG, Esq., and JOHN PITT KENNEDY, Esq., Bar- WILLIAM BURKE, Esq., and CHARLES HARE HEMPHILL, Esq. ́DUBLIN, JANUARY 27, 1849. In the case of Lyster v. M'Namara, reported 10 Ir. Law Rep. 597, the question for the first time was raised-for the consideration of the Court of Common Pleas whether in an ejectment for nonpayment of rent, not only the tenants in possession, but all persons having a legal interest in the premises held under the lease, should be served. On this question the Courts of Queen's Bench and Exchequer have for many years held opinions diametrically opposed, the Court of Queen's Bench considering it sufficient to serve the tenant in possession; the Court of Exchequer, on the other hand, requiring that all persons having a legal interest should be served with the ejectment. In the Common Pleas this question has produced a difference of opinion, the majority of the judges, however, deciding with the Court of Queen's Bench. This contrariety of opinion leads us to a consideration of this important question, which involves not merely a point of practice, or matter of convenience, but a legal right and principle. It appears anomalous that a lease may be regularly evicted, according to the practice of the Court of Queen's Bench, and yet can be revived, as it were, in the Court of Exchequer, by any person possessing a legal interest-it matters not how minute and who has not been served with a copy of the Queen's Bench ejectment, he is allowed to take advantage of a legal right recognized in the Court of Exchequer as still existing, and re-evicts, if we may use the expression, the landlord. In the case under consideration, the party whose non-service formed the ground of objection, was the assignee of a mortgagee; the mortgage and assignment were both registered; the mortgagee had been served. A point was raised, whether the ejectment statutes did not create a special exemp tion in favour of mortgagees and their assigns. The court, however, gave no separate opinion on this branch of the case, and two judges out of three decided that the assignee need not be served. It is not very easy to account for this difference of practice between the Courts of Queen's Bench and Exchequer. The former professes strictly to follow that established in England, whilst the latter is, in our judgment, more in accordance with the spirit of the English system, as will appear from the following sketch of the nature of the action of ejectment, and the English mode of regulating it. This form of action, from the period of its use, was a proceeding for the recovery of possession, and we may here observe that there was no difference between ejectments on the title, and for nonpayment of rent-at least as to the persons who should be served with the ejectment processuntil the legislature interfered to regulate the proceedings of the latter. It was in fact a proceeding to obtain possession of land, the lease of which had been evicted by the re-entry of the landlord for condition broken, and the persons to be served in every case were those in possession only; all other interests under the lease being destroyed by the re-entry. (Gilb. Rents, 73, Co. Litt. 201, b.) But it being found, to use the language of Lord Holt, "that tenants in possession combined with lessors of the plaintiff, and ousted the landlord of his rent, and that the combination of the tenant in possession could not be prevented, unless the landlord was permitted to defend alone. question arises, who is landlord?" We find from a very early date that the courts were in the habit of admitting persons claiming an interest—not inconsistent with that of the tenant-to defend either with him or alone. In 12 Mod. 211, (Anon ) it is said that "if notice in ejectment be given to an under-tenant, and he doth not acquaint his landlord therewith, but suffers judgment to go The against him, the court (upon motion) will not suffer execution to be taken out till the right be tried." This case and others referred to in Fairclaim v. Shamtitle, (3 Burr. 1290) shew that the anxious desire of the courts has been to assist those who claimed rights in the subject of the ejectment. But as the court could not be put in motion without an application on the part of the person seeking to join in the defence, and as the rights of those who remained in ignorance of the proceedings would be barred, the 11 Geo. 2, c. 19, was passed to prevent fraudulent recoveries of the possession by collusion with the tenant of the land, (Crocker v. Fothergill, 2 B. & Al. 652,) who, by the 12th section, is directed, as soon as the declaration in ejectment is delivered to him, to give notice of such delivery to his landlord, under pain of forfeiting three years improved, or rack-rent of the premises holden. And Lord Mansfield, in the case before cited, Fairclaim v. Shamtitle, speaking of who should be considered a landlord within the meaning of this act, says, "it extends to landlords de jure, as well as to landlords de facto. A probable cause of claim is sufficient to entitle the landlord to be made defendant." And accordingly a devisee in trust, Loveland d. Norris v. Doncaster, (4 T. Rep. 122,) and a mortgagee, have been perinitted to defend as landlord, as falling within the meaning of the act, Doe d. Telford v. Cooper, (8 T. R. 645) though perhaps not such as would be entitled to notice. That statute and these cases do not apply to this country, but both illustrate the design of the legislature, and desire of the courts, to aid persons whose interests would otherwise be defeated, without any opportunity of defence, in a court of law, and whose sole remedy would be through the instrumentality of a court of equity.* This being the English practice, has it been adopted by our Court of Queen's Bench, and is the decision of the Common Pleas, in the case in question, consonant with it? Certainly not in spirit, and, we submit, not in practice either. The persons having intermediate interests in England, are not served with process in ejectment, not being in possession, but provision is made that they shall have notice-imperfect and indirect we admit -from the tenant, and may come into court, as we have shewn, either at common law, or under the provisions of the statute, (11 Geo. 2, c. 19,) whereas, according to our Queen's Bench practice, they may be in total ignorance of the attack upon their property, until it be, perhaps, too late to undo what has been done. In ejectments on the title, the English practice * It will of course be understood that these observations are only applicable to the ejectment for condition broken, in which it appears incontrovertible that all estates derived under the lease are divested (Co. Litt. 202, b. (1) 1 Rol. Ab. 474; 6 Co. 40, b, 41, a.) With respect to ejectments on the title-in contra-distinction to those for condition broken-the ejectment may be brought as often as the parties please. Now, persons whose claims rest on the evicted lease, if the practice of the Court of Queen's Bench be the correct one, have not this advantage, and this is an additional reason for the service of all persons legally interested in the lease. is to serve only those in possession; in Ireland the practice of all the courts is to serve not only every person in possession, but every person claiming a legal or equitable estate on the premises sought to be evicted, who is known to the lessor of the plaintiff, and resides within the jurisdiction of the courts. Boardman v. Grier, (2 F. & S. 55, note,) Longfield Eject. 31, Ed. 1846. And for this reason it was deemed unnecessary to extend the provisions of the 11 Geo. 2 to this country. If this be so, there can be no reason why the same rule which has been adopted in cases of ejectment on the title, should not also be adopted in cases of non-payment of rent. The two cases being in their nature without distinction, are now looked upon as distinct actions, by reason of the ejectment statutes, which make no change in the persons who should be served. The result of the English practice is this, that where it concludes all parties having interests in the lands, it provides for their having notice; where it does not so provide, it allows cross-ejectments to be brought. Now, our Court of Queen's Bench concludes persons, without giving them notice, who would be without redress, after the time had expired for redemption, if the Court of Exchequer adopted a similar practice, and did not allow cross-ejectments to be brought. Therefore we think that the practice of the Exchequer is more calculated to do justice, and more in accordance with that established in England. It has also been always consistent. In Howard's Prac. Ex. of Pleas, p. 39, it is said, "that all persons who are in possession, or claim any title in the land, must be served; and in page 64, "where an ejectment is brought for non-payment of rent the practice is the same as where it is upon the title, except that there must be a notice that it is brought for non-payment, &c." And some of the older cases in the Queen's Bench appeared to have followed the same practice, until the cases of Nugent v. Earl of Bantry (2 H. & Br. 156), and Dunne v. Butler (Batty, 316, note), in which a different rule appears to have been first established, not without some hesitation on the part of the court, who expressly rested their decision on the basis of the English practice. If we have shewn that the practice was not, nor is, really what it has been assumed to be, we think the rule cessante ratione cesset lex should be applied to their mode of proceeding on this subject. So far, we have treated this question without reference to the provisions of the Ejectment Statutes. The next consideration will, therefore, be— Have they made any change as to the persons to be served? And, for distinctness, we shall consider this branch, first, as to lessees and their assigns; and, secondly, as to mortgagees and their assigns; and it appears to us, from an attentive consideration of this code of laws, that the legislature have shewn an intention of interference with respect to the latter class alone. The first statute (the 11th of Anne, 11, s. 2) enacts "that the summons in ejectment small stand in place of the demand and re-entry at common law;" "that if it should appear that more than half a year's rent was due, and that there was no sufficient distress on the premises," then the lessor should recover as if he had demanded, &c., "and a re-entry made," &c.; "and in case the lessee or lessees, his or their assignee or assignees, or other person or persons, claiming or deriving under the said leases, shall permit or suffer judgment to be had, &c., and without filing any bill for relief in Equity within six months, that all such persons should be barred and foreclosed from relief at law or equity," &c. These words permit and suffer, &c., have been used as an argument to shew that the legislature intended the service of all persons claiming interests. This, it will be observed, is an Irish act of an Irish legislature, and was in advance of English legislation on this particular subject. It would appear, therefore, to be a more reasonable construction of those words to say, that the legislature found the practice of serving all persons having interests already in existence, and legislated accordingly. The analogous act (4 Geo. 2, c. 28, Eng.) contains the same words; and the 11 Geo. 2, c. 19, Eng., was then passed to remedy the mischiefs created thereby, which the Irish courts had already abolished, by their more equitable practice. The 4 Geo. 1 c. 5, s. 3, gives the right of ejectment when there is a year's rent due, though there be sufficient distress, but is otherwise similar to the 2nd section of the 11th of Ann. With respect to mortgagees, the 3rd section of the Statute of Ann, and the 5th section of the 4 Geo. 1, c. 2, save unconditionally the rights of mortgagees not in possession. The previous sections of these acts being large enough to include them as persons claiming under the lease; and the 8 Geo. 1, sec. 4, extends the provisions of the former statutes, and enacts that registered mortgagees, and their assigns, if served with the ejectment, shall be bound, unless the premises be redeemed within nine months; and, if not registered within the fifth section, in that case, they were bound although not served. These provisions are, as we have said, in advance of the English legislation on the same subject, and are evidently framed with a view to the then uniform practice of the Irish courts; and in this view there appears to be no contradiction or difficulty in arriving at a conclusion as to their meaning, which we would understand to be this the saving in the statutes of 11 Ann and 4 Geo. 1, being too general, the statute of 8 Geo. I was passed, which did not enact that they should be served that being already the practice of the courts but the unlimited saving in the previous acts being found inconvenient, the object was to provide a registry of the mortgagees of the lease, that they might be more readily discovered, and then, if served, they have but nine months to redeen; if they are not served, but are registered, their rights are to be as before-that is, with an unlimited saving. And if they had not registered under the fifth section, in that case they were to be treated as if served, and should redeem within nine months, or be barred of all right to the lease. For this reason, we think the conclusion arrived at by the majority of the Judges of the Court of Common Pleas was, in this particular case, correct, the cases of registered mortgagees and their assigns, being especially excepted from what we conceive the general rule was, and should be, and whose rights were their first submitted to the opinion of a court of law. We admit the force of the argument ab inconvenienti advanced by the advocates of the practice of the Court of Queen's Bench, that it is a hardship upon landlords that their rights may be defeated at the trial by a legal estate created by the tenant-perhaps with that very object—and of which the landlord could have had no means of discovery. This would but postpone his rights-on the other hand, substantial interests, and rights may not be postponed merely, but wholly defeated, if the party having the right happen not to have notice of the ejectment proceedings till the six months for redemption have expired. This may be said to be improbable, but it is not impossible; and if so, the mere postponement of rights is preferable to their destruction. Besides, the former evil might be easily remedied, by requiring such a registry of the assignments of interests under leases, as is required of mortgages by the 8 Geo. 1, and, if not registered, that they should be incapable of being set up at the trial in opposition to the landlord's rights. WE publish elsewhere the general orders prepared by the Chancellor and Master of the Rolls, under the Act to facilitate the sale of Incumbered Estates in Ireland. Taken in conjunction with the act itself, they present to the owner of an incumbered property greater facilities-having regard both to rapidity and cheapness-than any one accustomed to the slowness of Chancery proceedings could reasonably have anticipated. There are many points left untouched; and some of the orders will, so far as incumbrancers are concerned, probably render many costs untaxable, as between party and party, which yet must be incurred; and the effect will be from this and other causes, that this act will rarely, if ever, be resorted to by incumbrancers. People in this world are very selfish, and dislike trouble-except they are paid for it and the orders require so much inquiry beforehand, so much pains-taking accuracy, so much risk as to costs, that few creditors will choose a new course of proceeding, without any profit to themselves, for the philanthropic motive of saving expense to the estate to be sold. Under the bill system-and the privilege of filing them still exists--they had only to take care of themselves, and leave the other creditors to do likewise; under the new, they' have not only to state their own case correctly, but that of every other purchaser on the estate, and to swear that there is not " any person having any estate or interest in the lands or lease mentioned in the petition, or any incumbrance or charge thereon, or whose consent is necessary to a sale thereof, other than the persons severally named as such in the petition." The petitioner is to do this without being allowed the expense of searches preparatory to filing the petition. The Master, for |
