the purposes of title, may, after an order on the ing to forms to be submitted to and approved of by the Lord petition has been made, direct them, but the peti-Chancellor, the several particulars required to be stated in tioner is in the awkward position of being obliged, without the means of knowledge, to make a perfect case by his petition, at the risk of having it dismissed with costs. Again, when there is any question of fact to be elicited, or point of law to be raised, the machinery of the act gives no apt form of pleading. Nor does it offer temptation to those who require haste to begin and leisure to conduct the suit when the defendants are brought before the court. Now, a bill may be filed in a day, without oath, or without the consent of any individual except the plaintiff, and, as the suit progresses, may be amended as occasion may require. We do not say that this system is better than the one proposed, but it is less troublesome and more independent for the incumbrancer, and therefore more likely to be adopted by him. We are disposed to think that the act, for some time at least-and never, except in simple cases, such as those which are now called friendly suits-will be little used by incumbrancers. Court Papers. Chancery. GENERAL ORDERS. AN ACT TO FACILITATE THE SALE OF Dated the 13th day of January, 1849. The Right Honorable Maziere Brady, Lord High Chancellor of Ireland, by and with the advice and assistance of the Right Honorable Thomas Berry Cusack Smith, Master of the Rolls, doth hereby in pursuance of an act of parliament, entitled " An Act to facilitate the Sale of Incumbered Estates in Ireland," and in pursuance of all other powers in him vested, order and direct in manner following 1. Every petition to be presented under the said act for the confirming and carrying into effect any contract for sale or for the sale of any land or lease, shall be verified by the affidavit of the petitioner or petitioners, or by that of some other person or persons, stating special reasons why the affidavit of the petitioner or petitioners, cannot be obtained in support of said petition. 2. That the deponent or deponents in every such affidavit shall depose to the truth of the several matters stated in the petition; and in addition thereto shall state that there is not to his, her, or their knowledge or belief any person having any estate or interest in the lands or lease, mentioned in the said 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. 3. That the fees to be paid upon proceedings under the said act, and all costs to be allowed thereon, shall be the same as may be now lawfully received by or allowed to the officers and solicitors of the Court on similar proceedings in any cause or matter pending in the Court; and all rules and orders of the Court for the taxation of costs shall apply to the fees and costs of such proceedings. 4. That the masters in ordinary of the Court, and the registrars, shall cause to be duly and regularly entered in proper books, to be kept in their respective offices, accord the return directed by the said act to be laid before parlia respective offices will enable them so to do; and all such ment, so far as the documents and proceedings in their said entries shall be made weekly at the least, so as to show at the end of each week the total amounts and quantities to that time of the several matters required to be set forth in such return. petitioner to submit to such order as the court may think 5. Every petition shall contain an undertaking by the proper to make, in the event of its appearing, on any en. quiry to be directed under the petition, that such petitioner was not a person authorized by the statute to present such petition. 6. That the petition by the owner of land, under the second section of the said act, or by the owner of a lease, under the fourth section of the said act, who shall have contracted, subject to the approbation of the court, for the sale thereof, shall be entitled, and shall contain the statements as herein-after set forth, with such variations as the nature and circumstances of each case may require. In the matter of the Act to] TO THE RIGHT HON. THE LORD CHAN. The humble Petition of Ist. The date of the contract for the sale of the lands or lease, the parties thereto, and a concise abstract of the con. tents thereof. 2ndly. In case the petition is by the owner of a lease under the fourth section of the act, the petition shall state the date of and the parties to the lease, and the short par. ticulars thereof. 3rdly. The petition shall state the estate or interest of the petitioner in the lands [or lease] so contracted to be sold, and the uses or limitations, and the trusts, if any, to which the said lands [or lease, as the case may be,] stand limited or settled; and shall also state the name of every person, who, to the knowledge or belief of the petitioner, has any estate or interest in the lands or lease in the said petition mentioned; and the dates of and parties to the several instru ments referred to in the petition; and the party by whom the petition is prepared shall take special care that the abstract of the material parts of said instruments, stating the said uses or limitations, and trusts, shall be made with as much conciseness and brevity as is consistent with a clear statement of the same. 4thly. In case the purchase money of the lands or lease contracted to be sold is less than the amount of the sum due on foot of the incumbrances and charges in the second schedule to the petition mentioned, the petition shall further state, the lands, if any, not contracted to be sold, which are subject to or affected by such incumbrances or charges and the estate or interest of the petitioner therein; and the name or names of the other owner or owners thereof, if any; and the gross rental thereof; and the several charges and incumbrances, if any, affecting said last-mentioned lands, and which shall not be specified in the second schedule to the said petition; and the net annual rental thereof. 5thly. The petition shall further state, that in the first schedule thereunto annexed, is set forth a true and accurate rental of the lands [or leasehold interest] contracted or proposed to be sold; and such schedule shall be in the form herein-after set forth, and shall state the names of each sub-denomination, if any, the names of the tenants, the dates of and parties to the leases or other instruments under which the said tenants respectively hold, the tenures, the number of acres held by each tenant, the annual rents, the gale days, and the arrear due by each tenant to the last gale day. 6thly. The petition shall further state, that in the second schedule thereunto annexed, is set forth a true and correct list of all the incumbrances and other charges affecting the lands [or lease]contracted or proposed to be sold; and the names of the several persons entitled thereto, or interested therein; together with the sums due on each incumbrance or charge, distinguishing principal from interest; and such schedule shall be in the form herein-after set forth, and shall distinguish such incumbrances or other charges which affect a derivative estate or interest, or less than the whole estate or interest in the lands or lease contracted to be sold, from such incumbrances or charges as affect the whole estate or interest in the lands or lease contracted or proposed to be sold; and shall also distinguish those incumbrances or charges which affect all the lands from such as may affect only a portion thereof; and the petition shall state that there is not, to the knowledge or belief of the petitioner, any incumbrance or charge affecting said lands [or lease, as the case may be,] save the incumbrances and charges in the said schedule set forth. 7thly. The petition shall state the crown rents or quit rents (if any) subject to which such lands [or lease, as the case may be,] shall be contracted or proposed to be sold. 8thly. The petition shall further state, that no incumbrancer is in possession of any part of the lands, and that no receiver has been appointed over the said lands [or lease, as the case may be,] or any part thereof; or if any incumbrancer is in possession, or has obtained an order for a receiver, add save and except the party named, and that the consent in writing to the petition has been obtained, signed by such incumbrancer-and the petition should set Containing Rental of the Lands of forth the short particulars of the consent, and the date thereof. 9thly. In case the lands are subject to any mortgage or mortgages, the petition shall state that they do not, nor do any of them contain any power of sale: or in case a power of sale is contained in any such mortgage, that the mortgagee has consented to the application; or if there has been a refusal or neglect to use diligence towards the exercise of such power of sale, the petition should state such refusal or neglect, as specified in the sixty-seventh section of the act. 10thly. The petition shall further state, that no suit for foreclosure, redemption, or sale of the said lands [or lease, as the case may be,] or any part thereof, commenced before the first of July, 1848, is pending; or if any suit is pending, state the parties thereto, and when the bill was filed; and if such consent, as is stated in the sixty-seventh section of the act, has been obtained, state same. 11thly. The prayer of the petition should be carefully framed in accordance with the tenth section of the act, according to the circumstances of the particular case; and it should further pray, that the contract for the sale should be carried into effect, in case the petitioner has previously to the petition entered into a contract in pursuance of the act, or if not, it should pray for a sale of the lands or lease, as the case may be, under the provisions of the act; and the petitioner should also pray for general relief. The form of the petition, where the petitioner has not previously contracted for the sale of the land or lease, shall be the same, (omitting the statements numbered 1 and 4,) with such variations only as may be necessary in consequence of no previous contract having been entered into. FIRST SCHEDULE TO THE PETITION. in the County of (contracted to be Sold)—or where the Owner has not contracted previous to the Petition (which the Petitioner applies to the Court for the Sale of,) under the Provisions of the Act. If any part of the Lands is in the actual possession or occupation of the Petitioner, state the number of Acres of which the Petitioner is so in the possession or occupation. SECOND SCHEDULE TO WHICH THE FOREGOING PETITION REFERS. Containing a List of all the Incumbrances and Charges affecting the Lands [or Leasehold Interest, as the case may be] contracted to be Sold; or [sought to be Sold, under the Order of the Court, as the case may be.] That the petition by the first incumbrancer on any land or lease, under the second or fourth sections of the said act, shall be entitled and contain the statements as hereinafter set forth, with such variations as the nature and circumstances of each case may require. In the Matter of the Act to] TO THE RIGHT HON. facilitate the Sale of Incum- THE LORD CHANbered Estates in Ireland, CELLOR. Ex-parte [State the name of the Petitioner.] The petition shall state The humble Petition of 1st. The incumbrance vested in the petitioner, and how created, and if same was created by an instrument in writing, the date of and parties thereto; and the petition shall further state the material parts of such instrument, and no other parts thereof; such statement to be made, and the instrument abstracted, with as much conciseness and brevity as is consistent with clearness. If the incumbrance be a judgment, decree, or order of the Court, the petition shall state the date and parties thereto. If the petitioner was no party to such instrument, judgment, decree, or order, &c. the petition shall state concisely the instruments by which the right to such incumbrance is vested in the petitioner ; the party preparing the petition taking special care that the title to the incumbrance shall be set forth in as concise a manner as is consistent with a clear deduction of such title. If the incumbrance is a judgment, and shall have been revived, the petition shall state the revival, and the parties to such judgment of revival. 2ndly. If the petition is under the fourth section of the act, it shall state the date of, the parties to, and the short particulars of the lease sought by the petition to be sold under the order of the Court. 3rdly. The petition shall state the uses or limitations, and the trusts, if any, to which the land or lease stands limited or settled, so far as the petitioner is acquainted with same, and in whom the estate or interest in the land or lease is vested; and the name of every person who, to the knowledge or belief of the petitioner, has any estate or interest in the lands or lease in the said petition mentioned; but the petitioner is not to be allowed any costs or expenses for searching the registry. 4thly. The petition should further state, that in the schedule thereto annexed, the petitioner has set forth, to the best of his knowledge and belief, a true and correct list of all the incumbrances and other charges affecting the lands [or lease, as the case may be,] proposed to be sold; and the names of the several persons entitled thereto, or inte rested therein; together with the sums due on each incumbrance or charge; and such schedule shall be in the form of the second schedule annexed to the petition by the owner of land; and which form the said incumbrancer shall fill up to the best of his knowledge and belief; and the petition shall state that there is not, to the knowledge or belief of the petitioner, any incumbrance or charge affecting said lands [or lease, as the case may be,] save the incumbrances and charges in the said schedule set forth. The petitioner, how. ever is not to be allowed any costs for searches. This and the preceding provision, however, as to costs, are not to apply to any searches which may be directed by the master to whom the petition may be referred. 5thly. The petition shall state the crown rents and quit rents, if any, subject to which such land [or lease, as the case may be,] shall be sought to be sold. The petition shall further state the matters to be stated, eightly, ninthly, and tenthly, in the petition, by the owner of land; and the prayer shall be framed under the tenth section of the act, according to the circumstances of the case; and the petition shall further pray, that the lands [or lease, as the case may be,] may be sold under the provisions of the act; and general relief. A petition by an incumbrancer under the second or fourth sections of the act, [not being the first incumbrancer,] and being in possession of the title deeds and writings relat ing to the land [or lease, as the case may be,] shall be similar to a petition by a first incumbrancer, stating, in a schedule to his petition, a list of the deeds and writings in his possession. 7. That every petition as aforesaid shall be headed as follows, according to the circumstances of each case: 1st. Petition by the owner of land who has contracted for the sale thereof, under the second section of the act; or 2ndly, petition by the owner of land, under the second section of the act, who has not contracted for the sale thereof; or 3rdly, petition by the first incumbrancer on land, under the second section of the act, for the sale thereof; or 4thly, petition by an incumbrancer on land, under the second section of the act, having possession of the title deeds and writings relating thereto, for the sale of such land; or 5thly, petition by the owner of a lease who has contracted for the sale thereof, under the fourth section of the act; or 6thly, petition by the owner of a lease, under the fourth section of the act, who has not contracted for the sale thereof; or 7thly, petition by the first incumbrancer on a lease, under the fourth section of the act, for the sale thereof; or 8thly, petition by an incumbrancer on a lease, under the fourth section of the act, having possession of the title deeds and writings relating thereto, for the sale of such lease. 8. It is further ordered, [in order to diminish the costs and expenses of proceedings in the master's office,] that where a petition shall be presented by the owner of land or of a lease, under the second or fourth sections of the said act, [whether the said owner shall or shall not have previously contracted for the sale thereof,] and where an order of reference shall be made upon said petition, referring it to the master [amongst other things] to take an account of the incumbrances and charges affecting the said land or lease, that the master shall, without any charge or discharge being filed, report the several sums stated to be due for principal and interest in the second schedule to the said petition; and also the arrear (if any) stated to be due upon the charges therein also mentioned, to the several parties respectively in whom the said incumbrances and charges shall be stated to be vested, together with any additional interest or arrear which may accrue before the signing of the report, unless so far as any error shall be established in said schedule, under the circumstances herein-after stated that is to say 1st. Any person in whom it is stated by said schedule that an incumbrance or charge is vested, shall be at liberty to file a charge for the purpose of correcting any error in said schedule, either in respect of the amount of principal or interest stated to be due on such incumbrance, or in respect of the arrear stated to be due on foot of such charge; or in case the said incumbrance or charge is not vested absolutely in the person stated in such schedule, or if any other person or persons is or are entitled to any estate, share, or interest therein, or if the said schedule shall be in any other material particular inaccurate in relation to said incumbrance or charge, a charge may be filed to correct such error; and if it shall appear to the master that it was necessary and proper to file such charge for the purpose of correcting an error in said schedule, he shall in his report correct such error accordingly, and shall be at liberty to allow a sum not exceeding five pounds to the said person for the costs of filing such charge; but if the said schedule was correct, and the charge unnecessarily filed, such person on whose behalf such charge shall be filed, shall pay to the petitioner such sum for costs, not exceeding five pounds, as the master shall direct; which sum shall be deducted from his demand, or paid to the petitioner as the master shall direct. provided always, that in case the said charge shall be contested, the master shall be at liberty to allow such additional sum beyond five pounds, in the cases aforesaid, as he may deem reasonable. 2nd. Any person in whom it is stated by the said schedule that an incumbrance or charge is vested, or any person whose name, or whose charge or incumbrance is not stated in such schedule, who shall file a charge on foot of any incumbrance or charge, save in the case hereinafter-men tioned, provided such charge so filed shall be allowed by the master; and any other person having any estate or interest or charge is vested; and in case the party upon whom such shall disallow same, and shall allow such sum for costs, not exceeding five pounds, to the person filing such traversing note, as the said master shall think fit, such sum so allowed for costs to be added to his demand; and if the person served with such traversing note shall file a charge on foot of his claim, the party filing such traversing note (but no other person without the leave of the master) shall be at liberty to file a discharge thereto; and such proceedings shall or may be taken on foot of such charge and discharge, as are in such cases usual and if the charge so filed shall be disallowed by the master, the person filing such charge shall be liable to pay to the person by whom the said traversing note shall have been filed, his costs, properly and necessarily incurred in disputing such claim; which costs the taxing master shall tax and certify without any order of the court, upon a certificate signed by the master of the disallowance of such charge; and if the master shall allow the charge so filed, the person by whom such traversing note shall have been filed shall pay to the person whose charge shall be so allowed his costs, properly and necessarily incurred in establishing such claim; and which costs the taxing master shall tax and certify without any order of the court, upon a certificate signed by the master of the allowance of such charge: provided, always, that the master shall be at liberty to name any sum to be paid by either of the said parties ad and for the costs without taxation: and it is further orderes that if any party filing a charge under the said order of reference, shall claim any incumbrance or charge specified in said schedule, or any right, share, or interest therein, and shall dispute the right of the person in whom it is stated in said schedule that the said incumbrance or charge is vested, either in the whole or in part, it shall not be necessary in such case to file any traversing note-but the person in whom it is stated by the schedule that such incumbrance or charge is vested, shall receive notice of such charge, and he shall thereupon be at liberty to file a discharge to such charge and the master shall decide the rights of the said claimants, and make up his report thereon accordingly, and shall make such order as to the payment of costs by the one claimant to the other as he shall think fit; and the taxing master shall tax said costs without any order of the court for that purpose, upon the certificate of the said master: provided always, that it shall and may be lawful for the master to name any sum to be paid by either of said parties as and for the costs without taxation-provided also, that it shall be lawful for the said master, if he shall so think fit, and if it shall appear that the schedule to the petition was erroneous in stating the name of the person in whom the incumbrance or charge was vested, to direct that a sum not exceeding five pounds shall be paid by the owner of the land or lease to whichever of the said claimants the master shall direct; such costs to be added to the demand against the said owner, or otherwise paid as the master shall direct- and credit shall be given for such sum out of costs awarded as between the claimants, if the master shall so direct and it is further ordered, that the said traversing note shall be to the following effect, having regard to the circumstances of each case, that is to say— In the matter of the act to] facilitate the sale of incumbered estates in Ireland, : Ex-parte [Name the petitioner in matter.] A B. a person whose name is included as an incumbrancer [or having a charge] on the land [or lease] in the schedule to the petition mentioned; or A. B. a person who has filed a charge under the order of reference in this matter, and whose charge has been allowed; or A. B. a person having an interest in said land [or lease,] with the permission of the master, [as the case may be,] disputes the claim of C. D. in the second schedule to the petition mentioned, either wholly or in part, [as the case may be,] and requires the said C. D. to file a charge and establish same. 9. It is further ordered, that if any person who shall be entitled to any charge, not being an incumbrancer, within the meaning of the said act, [including any such apportioned charge as in said act mentioned,] shall be willing under the provisions of the twenty-second section of the said act, to accept a gross sum in satisfaction of such charge, and shall file a charge under said order of reference for such purpose, and if the master shall include in his report such charge as an incumbrance under the provisions in such section, it shall be lawful for the master to allow such sum, not exceeding five pounds, for the costs of such charge, as the master shall think fit; provided, always, that in case said charge shall be contested, the master shall be at liberty to allow such additional sum beyond five pounds, as he may deem reasonable. shall, instead of requiring all persons having incumbrances to come in and prove their demands, require all incumbran cers and persons having charges to proceed in the manner directed by the eighth general order herein-before set forth; and in case the master shall cause any notice to be served, under the 16th section of the said act, upon any person in whom it shall be stated, in the second schedule to the said petition, that an incumbrance or charge is vested, such person shall not be entitled to any costs of appearing before the master in pursuance of such notice, other than such costs as are provided for by these general orders, unless the court shall otherwise direct. 15. It is further ordered, that in every report to be made by the master under any order of reference under the said act, the master shall state, in a schedule to his said report, the number of meetings which have taken place under the said order of reference, and the dates of such meetings. MAZIERE BRADY, C. T. B. C. SMITH, M. R. 10. And it is further ordered, that if any incumbrancer, or person having a charge to whom an arrear on foot of such charge is due, shall claim priority over any other charge or incumbrance, prior in point of date, under the provisions of the act for the registry of deeds, or the act for the registration of judgments, or upon any other ground, such person shall be at liberty to file a charge for the purpose of claiming such priority, if such priority shall not appear in the second schedule to such petition; and shall in such case be entitled to such costs of proving such claim, not exceeding five pounds as the master shall direct: provided, always, that in case said charge shall be contested, the master shall be at liberty to allow such additional sum beyond the five pounds as he LEGAL AND HISTORICAL DEBATING SOCIETY. may deem reasonable; and provided also, that the costs of any discharge which may be filed to such charge by any other incumbrancer shall not be borne by the owner of the land or lease. 11. And it is further ordered, that where the owner of land, or of a lease shall present a petition under said act, and such owner shall be only tenaut for life, or have some other limited interest therein, and where from the disability of the party entitled in remainder, or for any other cause, the master shall so think right, it shall be lawful for the master to direct a charge to be filed by any person, in whom it is stated by the second schedule to the petition, such charge or incumbrance is vested; and to require such proof as to the said incumbrance or charge as he may think right; and to allow such costs for such charge, and for proving same, as the master shall think reasonable, in case same shall be proved to his satisfaction. 12. And whereas, if the petition by the owner of land, or of a lease, under the second or fourth sections of the said act, be properly prepared, as herein-before directed, the expense of filing a charge thereunder, for the purpose of again stating the uses and limitations, or trusts, if any to which said land or lease is subject, or for the purpose of any of the other enquiries directed by the order of reference, will be unnecessary-it is further ordered, that no charge shall be filed for any such purposes, under said order of reference, unless the master shall otherwise direct; and if the master shall direct a charge to be filed, it shall be con fined to such matters as the master shall direct;-and it is further ordered, that the master shall be at liberty, if he shall consider that the petition sufficiently sets forth and puts in issue the documents and other matters necessary to be proved under the order of reference, to proceed to make the enquiries directed by said order upon a summons, without any charge being filed; and if the master shall direct such charge to be filed, no costs thereof shall be allowed to the solicitor as against the petitioner, unless the master shall otherwise direct. 13. It is further ordered, that if proceedings shall be taken before the master upon such petition without a charge being filed; the petition shall be considered as a charge, for the purpose of entitling any person to file a discharge to such petition, who would have been entitled, according to the practice in the master's office, to file such discharge if a charge had been filed; and where said petition shall be proceeded on as a charge, all general orders of the Court shall be applicable to the proceedings on such petition as would be applicable to proceedings on a charge. 14. It is further ordered, that where a petition shall be presented by the owner of land, or of a lease, under the second or fourth sections of the said act, [whether the said owner shall or shall not have previously contracted for the sale thereof,] and an order of reference shall be made thereon, [the advertisement which the master shall cause to be published under the fourteenth section of the said act, in addition to the matters directed by the said section,] ! ESTABLISHED 1845. A Meeting of the Members of this Society will be held in their Rooms, No. 45, MOLESWORTH STREET, on FRIDAY EVENVING NEXT, the 2d February. Chair to be taken at Eight o'clock precisely. SUBJECT FOR DEBATE, "Will an action of Covenant lie against the heir at law, and devisees at the Covenantor for breaches occurring subsequently to his death? 1 W. 4, c. 47; 3 Ad. & E, 839." Barristers, Law Students, and Graduates of the Universities of Dublin, JOHN NORWOOD, Esq. 11, Nelson Street, TO BE SOLD, the FURNITURE of a LAWYER'S PORTFOLIOS FOR THE IRISH JURIST, THE Publisher begs to inform Subscribers that the above JA AMES O'DRISCOLL, 9, ANGLESEA.STREET. IRISH MANUFACTURE INDIAN RUBBER BLACK- ING, Manufactured by RICHARD KELLY, Boot Maker, 16, COL 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, each; N.B.-Country Shopkeepers treated with on the most Liberal Terms. Portobello, March 31st. Sir, "I have examined your Indian Rubber Blacking, and find it made of those materials which are most proper for such a composition. It has some advantages in use not possessed by similar articles of manufacture; it is susceptible of a very high polish, it does not soil, and its permanent effect on the leather is of a beneficial character. "Mr. Kelly, College-green. "THOMAS ANTISELL, Lecturer on Chemistry." 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, COLLEGE 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): Yearly, 30s. Half-yearly, 178. Quarterly, 98. Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, FLEET STREET, in the Parish of St. Andrew, and published at 15 COLLEGE-GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin. Saturday, January 27, 1849. |
