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Irish Jurist

PRICE

No. 12.-VOL. I.
JANUARY 20, 1849.

Per Annum, £. is

Single Number, Pd The Names of the Gentlemen who favour THE IRISH Jurist with Reports in the several Cour's of

Law and Equity in Ireland, are as follows :

ROBERT LONG, Esq., Court of Chancery, in

Court of Exchequer

Jonx BLACKHAM, Esq., and and cluding Bankruptey

Chamber ......

A. HICKEY, Esq., Barristers-atJorx Pitt KexxEDY, Esq., Bar

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

Queen's Bench, includ- ( FLORENCE MCARTHY, Esq., and
WILLIAM BURKE, Esq., and ing Civil Bill and Re- 3 SAMUEL PEAT, Esq.,
Rolls Court...

WILLIAM Jous DUNDAS, Esq., gistry Appeals....... Barristers-at-Law.
Barristers-at-Law.

Exchequer of Pleas, in- Caas. 11. HEMPHILL, Esq., and CHARLES Harz HEMPHILL, Esq. cluding Manor Court WilLIAM HICKSON, Esq., Barand

and Registry Appeals, risters-at-Law. Tjuity Exchequer,

William Hickson, Esq, Bar- |
rişters-at Law.

Common Pleas...........

ter-at-Law.

{Roer-ar. Gaveris, Esq., Barris

DUBLIN, JANUARY 20, 1849. its powers, and has built up a series of precedents,

embarrassing to itself, and cumbrous to the pro

perties placed under its care. Land and the Court We have in a former number stated some of the of Chancery seem to have no natural affinity; they evils connected with the administration of pro- have never improved by contact with each other, perty, placed ander the dominion of our Courts of But let us not lay upon the management of such Equity.! Styles

a Court more sins than it is justly chargeable with. That estates nader their control are deteriorated The wretchedness of its uncared-for estates is not, in condition and value is the experience of every in all instances, primarily attributable to it; from resident in the country, and of every casual tra- the embarrassinent of the inheritors, they had been veller who visits our shores. The latter not unfre. previously neglected, were rack-rented, and underquently finds himself is a district where poverty going a rapid process of deterioration. But what and negleet bave laid a heavier than ordinary we do blame the system pursued by the Court of hand,--hovels, along the wayside, fields unculti- Chancery for, is

, that when it finds such estates rated, irregularly and ruinously sub-divided, agri- bad, it makes them worse, and sometimes receives culture in a state of relapse, no controlling power them prosperous and leaves them wretched. directing the few remaining energies of the cottier An instance often illustrates a principle. We tenantry, the old family mansion of the inheritor take one of the many which the annals of the Court presenting a forlorn aspect of dilapidation and of Chancery could furnish; the facts came before decay; oppressed with a sense of painful me- the Court the last year, and were verified by the lancholy, and surprised, even in Ireland, with affidavit of a Protestant clergyman. In th year this scene of desolation, he asks to what proprietor 1835, a Receiver was appointed over a property of this region belongs and he feels quite satisfied that £514 a year, paying a head-rent of £164; at the such should be its appearance, when he is informed date of his appointment, the arrears on the prothat “ It is in Chancery."

perty to the previous gale-day amounted to £2 If a proprietor were a man of very limited 14s. 14d. The rental was higher than that subseincome, in proportion to the extent of his estate-if quently settled by the Court; there was no hanging he were devoid of intelleet and energy we might gale, and the rents, falling due in September and excuse his inability or pity his infirmity; but if he November, were paid in the following December ; had complete control over his estate and its re- there was no pressure on the tenantry, and no venues, was endowed with intelligence, active him- pauperism on the estate. The very first account self

, and with the power of compelling activity in ' passed by the Receiver shewed an arrear of £322 others, and yet his estate presented the appearance Fos. 1d, ; this went on progressively accumulating, we have described, leniency itself could find neither until in 1812 the arrear had reached the sum of escuse nor pity for control so misdirected, for ac £841 10s. 3d., the greater part of which appearing tivity so unemployed, and for a management pro. by the Receiver's affidavit to be irrecoverabie, thie ductive of such lamentable results.

sum of £832 5s. 34. was wiped out by the Master Now, does not a Court of Equity resemble, in in one stroke. It was to be hoped that hencemany striking features, the latter of these pro- forward each year would have brought a year's prietors? It possesses great control, and if not rent; but no; the next account showed an arrear complete, because it wrongly forbore to exercise of £269 143. 8d., which went on increasing, till it

reached in 1846 the sum of £678 12s. 6d., and in causes, nine-tenths of which relate to land. The 1848, upwards of £900. The costs incurred

for business transacted in the Rolls Court is rapidly this excellent and efficient management amounted to and progressively increasing ; the fees received in the moderate sum of £309 6s. 9d, to which is to the various offices connected with the Court of be added the poundage retained by the officer of Chancery are swelled to nearly double their ordia the Court, for his meritorious services. Nor is nary amount; the ordinary revenue hitherto de this the worst. In Trinity Term, 1848, two appli- rived from one, averaged £6000 per annum ; last cations were made to the Court; one by the head-year it exceeded £11,000. Recent legislation also landlord for permission to bring an ejectment, the will still further extend the control of the Court of head-rent having fallen into arrear; and a second Chancery over land. by the Incumbent of the parish, whose tithe-rent

More attractive and dazzling subjects may pre. charge, amounting to the small annual sum of sent themselves to the attention of a legislator, but £16 4s. 2d., was allowed to remain unpaid.

he could not serve his country more effectually Nor had the inheritor the satisfaction of knowing, than by devising a practical remedy for the evils that whilst landlord, clergyman, and creditor re- we have attempted to describe. The calamities of mained unpaid, his tenantry were improved. For Ireland do not spring from a single source, and thirteen years his property was under the do- they can be best combatted in detail

. The prominion of the Court; during that interval, he was prietors of Ireland are told, that if they will exert deprived of all control over his tenantry, unable to themselves, prosperity is within their grasp ; if assist them or improve their condition, and not a they prefer idleness and inattention, they must inshilling was expended on the property for its per evitably sink. Should not the same reasoning be manent improvement. When, at length, he was applied to the Court of Chancery? Is there

any. restored to his proprietorship, he found his tenantry thing in the property under its control, to exempt generally unable to pay rent, and many of them it from the common lot of Irish estates ? reduced to the necessity of seeking relief under the

Let the Receivers under the Court of Chancery Poor-law. The condition in which this estate was be more assimilated to agents on well-managed pri restored to its owner, evidences strongly the defec- vate estates, and if it be considered dangerous to give tive management of the Court of Chancery-a Receivers an independent discretion, at least let management which acts with a peculiarly fearful the instructions of the Court be conveyed with thie effect on properties occupied by a numerous and rapidity of directions from landlords to their agents

. small class of tenantry.

The cumbrous and expensive machinery of stateWhat is the peculiar vice of this system? ments of facts, affidavits, reports, &c., neither suit

It deprives the proprietor of the power, of aiding the circumstances nor exigencies of distressed his tenantry, of exercising any control in prevent estates. Surely a system can be devised which would ing sub-letting, the ingress of pauper tenants, the accomplish these objects, and without any increase over-cropping and mismanagement of land—and it of expense to the country. The costs allowed confers that power on nobody. While the control of to Receivers during the four years comprised in the Court of Chancery continues, such power is vir- the return to which we have primarily alluded, tually extinct; the Receiver, as we have observed in averaged above £30,000 per annum. Add to this a former article, requires no qualification but to find the 5 per cent poundage on near a million sterling, sufficient securities; he is required to discharge no and there will be a total of nearly £80,000 a-year

, duties, save to collect rents. It is the worst species shewing an expence of 8 per cent on the rental, a of absenteeism, thus managing estates through non- greater per centage than is required for the manresident agents who have no discretion committed agement and improvement of the most flourishing to them,—who cannot interfere to prevent the sub- private estates. division of a farm, to aid a tenant whom a little This expense, however great, is not all that is lost assistance would enable to become independent, or under this system, large sums are annually permitted to exercise any of the thousand privileges of a land. to lie unproductive in the hands of Receivers, which lord, except at an expense to the estate which should, the moment they were received, be invested might cost more than the advantage gained was to the credit of the different causes, and be worth, or after a delay which would render his in- made to accumulate for the benefit of the parties terference useless.

interested. Receivers, in this respect, should be Why should not the Court itself perform those placed on a level with private agents. The coudpeculiar duties, which it takes from the landlord. try might be divided into districts, and all the proand transfers to nobody ?_why should it devote its perties under the courts in each district confided entire attention to the interests of a mortgagee or to a resident receiver. By a well-managed system, incumbrancers, to the exclusion of the proprietor we feel satisfied half the present expense of managand the tenantry? And this consideration acquires ing estates would be saved, the business of the much more importance when it is recollected that Court of Chancery would be materially lightened, in 1847 there were over 1000 estates, covering a and the properties under its care would be improved fifteenth part of the whole rental,-and, in all like- during their transition through it, and cease to be likelihood more than a fifteenth part of the whole the speaking reproach they are now. surface-of Ireland, under the dominion of our Courts of Equity; and whilst we now write, the nuinber has increased and is increasing. The Chancellor's list for the present term contains 171

Court Papers.

Seymour v. Walcott, report and merits.
Walcott v. Graves, report, exceptions and merits.

Hodder v. Hebert, pleadings and proofs, order pro confesso.
Chancery

Murphy v. Rorke, pleadings and proofs.

Minchiner v. Jones, pleadings and proofs, order pro con. JANUARY 1874.-The following gentlemen were this day Fox v. M'Loughlin, ditto.

ditto. admitted to the degree of Barrister :_ William Black, Luke Mullen v. Connellan, report and merits. Alexander Treston, Edward Eyre Maunsell, Beecher Lionel Fulton v. Fulton, pleadings and proofs. Fleming, Nathaniel Robert Powell, David John Henry, Walsh v. Corcoran, ditto.

ditto. Henry Nicholas Reynolds, Charles Henry Tandy, George Garnett v. Armstrong, rep. ex. merits and further directions. Barton, Daniel Delacherois, jun.

Irvine v. French, bill and answer.
Thompson v. Rea, pleadings and proofs, order pro confesso.

Mahony v. O'Connell, et contra, report, exceptions & merits,
LIST OF CAUSES.—HILARY TERM, 1848. Webber v. Lynar, report and merits.
Dowdall v. Burke, pleadings and proofs, order pro con.

Ready v. Lynch, standing over, and p. and p. in sup, cause. Same v. Same, pleadings and proofs.

Same v. Tierney,

ditto.

ditto. Cruise v. Mac Loughlin, plead. and proofs, order pro con.

Turner v. Russell, report and merits. Curran v. Glover, report and merits, further directions. Hayden v. Same, Bill and answer, order pro confesso. Coulson v. Williams, pleadings and proofs, order pro con.

Graydon v. Kernan, pleadings and proofs. Jardine v. Forrest, pleadings and proofs.

Dumoncel v. Dumoncel, ditto. ditto. Howell v. Henchy, report and merits.

Hackett v. Thunder, ditto.

ditto. Burrough v. Briscoe, writ of partition and return.

Hackett v. Mansfield, and other causes, report and merits. Thompson v. Thompson, report and merits.

Mahony v. Roberts, ditto.

ditto. Thompson v. Somerville, pleadings and proofs.

Same v. Molloy,

ditto.

ditto. Daly v. Burke, pleadings and proofs, order pro confesso.

Houlditch y. Bonham, report, ex. & m., further directions, Alleyn v. Alleyn, report and merits.

Todd v. Kennedy, pleadings and proofs. Warnock y. Eccles, return of judges' certificate.

Todd v. Todd, ditto. ditto. Hamilton v. Synge, pleadings and proofs.

Williams v. White, ditto. ditto. Mahony v. O'Connell, bill and anwer.

Hogan v. Kirkwood, pleadings and proofs, order pro con. Wingfield v. Williamson, report and merits.

Duckett v. Bunbury, pleadings and proofs. Shanahan v. Gorman, pleadings and proofs, order pro con.

Joly v. Proctor, ditto. ditto.
Same v. Same,

ditto.
ditto.
M.Carthy v. Murphy, ditto.

ditto. Bruce v. Jones, pleadings and proofs.

Delany v. Firman, ditto. ditto. Jackson v. Tollett, report and merits.

Irwin v. Massy, ditto. ditto. Reade v. Taylor, pleadings and proofs, order pro confesso. Behan v. Perry, report and merits. Kirkwood v. Lloyd, appeal from Rolls decree.

Lynch v. Livesay, pleadings and proofs, order pro con, Thompson v. Garnett, report and merits.

Roche v. Roche, report and merits. Campbell v. Kelly, ditto. ditto.

Same v. Cooke, ditto. ditto. Rainey v. Blake, ditto. ditto.

Powell v. Powell, pleadings and proofs, bill and answer. Magee v. Chaine, ditto. ditto.

Butler v. Pennefather, pleadings and proofs. Vincent v. Fitzgerald, bill and answer,

M'Carthy v. Clarke, ditto. ditto. Keatinge v. Garde, pleadings and proofs, order pro con. Fawcett v. Biggs, p. and p., bill and answer, ord. pro con. Geraghty v. Geoghean, pleadings and proofs.

Dwyer v. Ashe, report and merits. Dudgeon v. Browne, ditto.

ditto.

Luscomb v. Kenny, pleadings and proofs, order pro con. Same v. Same. ditto. ditto.

Lees v. Kenmare, bill and answer. O'Sullivan v. M'Sweeny, return of com. par., rep. and mer.

Crofton v. Galbraith, pleadings and proofs. Baker v. M'Dermott, standing from Trinity Term, 1848,

Williams v. Gore, report ond merits. Nagle v. Nagle, and other causes, p. p., b. a., order pro con. Noble v. Nixon, pleadings and proofs. Cochrane v. Finn, pleadings and proufs

, order pro confesso: O'Grady v. Atkin, and other causes, p. & p., ord. pro con. Geale v. Nugent, ditto. ditto.

Hackett v, Walsh, bill and answer. Waller v. Molloy, ditto. ditto.

Curtis v. Swiney, pleadings and proofs. Dawson v. Miller, pleadings and proofs.

Egan v. Blake, pleadings and proofs, order pro confesso. Campbell v. Frayne, reports and merits.

Warnock v. Eccles, return of Judges' cert. and furth. dir, Getty v. Graham, ditto. ditto.

Maturin v. Wilson, pleadings and proofs.
Dooner v. Dooner, pleadings and proofs, bill and answer. Marquis of Donegal v. Gregg, p. and p. for dismiss.
Spunner v. White, report and mertts.

Smith v. Dungannon, Re-hearing.
Brennan v. Kenny, pleadings and proofs.

Reilly v. Fitzgerald, ditto. Massy v. Denny, ditto. ditto.

Purcell v. Ruckley, ditto. Gerty v. Bruce, report and merits.

Eyre v. Hollier,

ditto.
Curtis v. Swiney, pleadings and proofs, bill and answer. Hollier y. Hedges,
Swiney v. Curtis, pleadings and proofs, order pro confesso.
Moore v. Bate, pleadings and proofs.
Hodgens v. Hlodgens,

ditto.
ditto.

(Continued from page 84.) Cochrane v. Cox, report and merits.

115. That upon production to the registrar of the Court Bateman v. Same, ditto.

ditto.

of Chancery iu Ireland of any order or of the office copy of Fitzimon v. Egan, pleadings and proofs for dismiss.

any order of the Court of Chancery in Enyland, or of the Burton v. Kennan, pleadings and proofs.

master of such Court, made in any matter arising under Johnston v. Scott, ditto. ditto.

this act, and upon production to the clerk of the entries of Same v. Same, ditto. ditto.

the report office of the Court of Chancery in England of any Ffrench v. Ffrench, ditto. ditto.

order or of the office copy of any order of the Court of Graydon v. Jessop, pleadings and proofs, order pro con.

Chancery in Ireland, or of the master of such Court, every M'Donnell v. O'Neill, pleadings and proofs.

such order shall be entered in the registrar's book of the Hamilton v. Nagle, report and merits.

Court of Chancery of Ireland or England (as the case may Gibson v. White, pleadings and proofs.

be) by the officer to whom the same or an office copy of the Cotter v. Cotter, report and merits. Grayburn v. Semple, ditto. ditto.

same shall be produced, and such entry shall be certified by

the proper officer at the foot of such order or office copy; Carr v. Osborne, pleadings and proofs.

and every order so entered shall be of the same force and N'Farland v. Nevin, pleadings and proofs, order pro con. effect and shall be enforced in the same manner in all respects

ditto.

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.

person furnishing, could purchase the above on advantageous terms,

Address X. Y., Office of the Irish Jurist. 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 TOBE OLENT on unexceptionable Landed Security

, the copy of any order of the court or of the master made in any sages or Judgment. If the interest on the latter sums be regularly pat, proceeding under this act, and of an affidavit that applica- they would not be called in for some years,

Apply to Messrs. Dooner and M'Cay, Solicitors, 5, Kildare street. tion 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 J

A MES O'DRISCOLL, registerable in like manner as a bond executed according to

PROFESSED TROWSERS MAKER, the law of Scotland with a clause of registration and decreet

9, ANGLESEA.STREET. shall be interponed to such order, upon which execution shall pass, in like manner as execution passes upon a decree in

CELEBRATED OVERCOAT, terponed to such bond, and shall have the like effect upon THE “REGISTERED ESTABILAN PALETOT," executed such bond.

JOHN WHITTY, MERCHANT TAILOR,

No. 8, College Green, 117. That where the only registered place of business of

SOLE AGENT FOR IRELAND, any company or the head office of any company which shall not have any registered place of business shall be situate in

Best Dress Coat, £3 38.; Frock, full silk lined, £3 176, 60,

TERMS-CASH. 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 IRISHI MANUFACTURE IN REAN RUBBER BLACK petition for the winding-up of such company shall be pre- LECE.GREEN, Dublin, sented to the Court of Chancery in Ireland, and such

It makes the Leather soft, pliant and even Waterproof, sold by the Bootmakers

and Grocers through the City, in Bottles at 4d, 8d, and is exach: respective courts shall thereupon exercise all jurisdiction, N.B.--Country Shopkeepers treated with on the most Liberal Terms powers, and authorities given by this act: provided that

Portobello, March 3let. where any company shall have a registered place of business

Sir, or shall transact business both in England and Ireland a peti- those materials which are most proper for such a composition. It has come

"I have examined your Indian Rubber Blacking, and find it made of tion for the wiuding-up of such company may be presentert advantages in use not possessed by similar articles of manufacture ; it either to the Court of Chancery in England or to the Court susceptible of a very bigh polish, it does not soil, and its permanent'efiet

on the leather is of a beneficial character. of Chancery in Ireland, and thereupon, the said Court shall

U THOMAS ANTISELL, have and exercise in the matter all the authorities and pro " Mr. Kelly, College-green.

Lecturer on Chemistry," visions in this act contained in like manner as if the only registered place of business of such company had been situ

L AW BOOKS, ate within the jurisdiction of the same court.

Lately published by 118. That the court, in addition to all powers and autho

EDWARD J. MILLIKEN, 15, COLLEGE GREEN. rities given by this act, shall exercise the like authorities, as would have been exercisable in a suit duly instituted ac

Just Published price 5s, the 4th and concluding part of cording to the rules and practice of the court, and to which R

EPORTS OF PRACTICE AND NISI PRIUS CASES, all proper persons were parties, for the winding-up of the

(including Registry and Civil Bill appeals,) DECIDED in the SUPE.

RIOR COURTS, and at the AFTER SITTINGS; with Iudex and affairs of the company in the matter of which the petition Table of Cases. By J BLACKUAM, W. J. Dundas, and R. W. Ossoli, is presented; and the general practice of the Courts of Esqrs., Barristers at. Law. Chancery in England and Ireland in suits pending in the

12mo. Second Edition, Price 2s 6d. -by post, 3s. same, shall apply to all proceedings under this act.

THE ACT to facilitate the SALE OF INCUMBEN EI) ESTATES 119. That it shall be in the discretion of the court, on in IRELAND, with a copious Index, and directions for proceeling umlet application to stay proceedings on any report or order of the

the provisions of the Act for the Sale of Lands subject to incumtranca;

to which is now added Forms (settled by counsel) for petition, advertise. master.

ment, notices &c., &c., as directed by the Act. By WILLIAN MACAKTNET 120. That if any matter shall arise in winding-up of any M'Cay, Solicitor. company which shall appear to the master not provided for

12mo. price 25. 60.

by Post, 3s, by this act, or by any rules or orders in force, the master, on the application of the official manager, or of any party | A TREATISE ON THE LAW OF INTERPLEADER,

containing all the Reported Cases in this country and in England, to the winding-up, or at his discretion, may report the same with an Appendix, containing the Act 9 & 10 Vic. c. 64, with Forms of to the court, who may make thereon such special order or

Affidavits, Rules, Orders, and the Record on a Feigned Issue. By Jous

BLACKHAM, Esq., Barrister-at.Law. such general order, as may be necessary under the circumstances.

Svo. price lís.-free by Post,

A PRACTICAL TREATISE ON PLEADING BY BILL in the (To be continued.)

COURTS OF EQUITY in IRELAND; adapted to the General Orders,
By ALFRED M'FARLAND, Esq., Barrister-at. Law.

LEG
EGAL AND HISTORICAL DEBATING SOCIETY. All communications for the IRISH JURIST are to be left, addressed
ESTABLISHED 1845.

to the Editor, with the Pablisher, E, J MILLIKEN, 15, COLLEGE A Meeting of the Members of this Society will be held in their Rooms,

GREEN. Correspondents will please give the Name and Address, as the

columns of the paper cannot be occupied with answers to Anonymous No. 45, MOLESWORTH STREET, on FRIDAY EVENVING NEXT, Communications--nor will the Editor'

be accountable for the return of the 26th inst. Chair to be taken at Eight o'clock precisely.

Manuscripts, &c.
SUBJECT FOR DEBATE,

Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL. “ Is it a gond defence by a tenant who has been duly served with eject. in Dublin, Or its being forwarded to the country, by Post, on the day of

LEGE GREEN, or by letter (post paid), will ensure its punctual delivery ment for non-payment of rent, that other tenants of the same premises publication. have not been so served 9" Batt. 321, n.

Terms of SUBSCRIPTION-(payable in advance): Barristers, Law Students, and Graduates of the Universities of Dublin, Oxford, and Cambridge, are eligible for admission.

Yearly, 30s. Half-yearly, 178 Members who have changed their residences, or who have friends to propose, are requested to communicate with the Secretary.

Printed by THOMAS ISAAC WHITE, at his Printing Office, Na da,
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FLEET-STREET, in the Parish of St. Andrew, and published at
COLLEGE OREEN, in same Parish, by EDWARD JOHNSTOY
MILLIKEN, residing at the same place, all being in the County o. the
City of Dublin, Saturday, January 20, 1819.

Quarterly, 9s.

Irish Jurist

No. 13.- VOL. I.
JANUARY 27, 1849.

PRICE

Per Annuin, £1 103

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, in

Court of Exchequer

John BLACKHAM, Esq., and and cluding Bankruptcy

Chamber ...............

A. HICKEY, Esq., Barristers-atJohs Pırt KENNEDY, 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., Rolls Court........ WILLIAM John Dundas, Esq., gistry Appeals..... Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in- Chas. H. HEMPHILL, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court 3 WILLIAM HICKSON, Esq., Bar. and

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

WILLIAM HICKSIN, Esq, Bar-
risters-at Law.

{

Common Pleas...........

Robert GRIFFIN, Esq., Barris

ter-at-Law.

DUBLIN, JANUARY 27, 1849. 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 In the case of Lyster v. M*Namara, reported 10 of three decided that the assignee need not be Ir. Law Rep. 597, the question for the first time served. was raised—for the consideration of the Court of It is not very easy to account for this difference Common Pleas—whether in an ejectment for non- of practice between the Courts of Queen's Bench payment of rent, not only the tenants in possession, and Exchequer. The former professes strictly to but all persons having a legal interest in the pre- follow that established in England, whilst the latter mises held under the lease, should be served. On is, in our judgment, more in accordance with the this question the Courts of Queen's Bench and spirit of the English system, as will appear from Exchequer have for many years held opinions the following sketch of the nature of the action of diametrically opposed, the Court of Queen's Bench ejectment, and the English mode of regulating it. considering it sufficient to serve the tenant in This form of action, from the period of its use, possession, the Court of Exchequer, on the other was a proceeding for the recovery of possession, hand, requiring that all persons having a legal and we may here observe that there was no differinterest should be served with the ejectment. In | ence between ejectments on the title, and for nonthe Common Pleas this question has produced a payment of rent—at least as to the persons who difference of opinion, the majority of the judges, should be served with the ejectment process however, deciding with the Court of Queen's until the legislature interfered to regulate the proBench.

ceedings of the latter. It was in fact a proceeding This contrariety of opinion leads us to a con to obtain possession of land, the lease of which sideration of this important question, which in- had been evicted by the re-entry of the landlord volves not merely a point of practice, or matter of for condition broken, and the persons to be served convenience, but a legal right and principle. It in every case were those in possession only; all appears anomalous that a lease may be regularly other interests under the lease being destroyed by evicted, according to the practice of the Court of the re-entry. (Gilb. Rents, 73, Co. Litt. 201, b.) Queen's Bench, and yet can be revived, as it were, But it being found, to use the language of Lord in the Court of Exchequer, by any person possess- Holt, “ that tenants in possession combined with ing a legal interest—it matters not how minute-lessors of the plaintiff, and ousted the landlord of and who has not been served with a copy of the his rent, and that the combination of the tenant Queen's Bench ejectment, he is allowed to take in possession could not be prevented, unless the advantage of a legal right recognized in the Court landlord was permitted to defend alone. The of Exchequer as still existing, and re-evicts, if we question arises, who is landlord ?" We find from may use the expression, the landlord.

a very early date that the courts were in the habit In the case under consideration, the party whose of admitting persons claiming an interest—1100 non-service formed the ground of objection, was inconsistent with that of the tenant-to defend the assignee of a mortgagee; the mortgage and either with him or alone. In 12 Mod. 211, (Anon) assignment were both registered; the mortgagee it is said that “if notice in ejectment be given to had been served. A point was raised, whether the an under-tenant, and he doth not acquaint his ejectment statutes did not create a special exemp- landlord therewith, but suffers judgment to go

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