No. 49.-VOL. 1.

PRICE

Per Annum, £1 108. (Single Number, 9d.

Court of Chancery, including Bankruptcy Appeals.......

Rolls Court........

Equity Exchequer

Bankrupt Court....... {

ROBERT LONG, Esq.,

and

JOHN PITT KENNEDY, Esq., Barristers-at-Law.

WILLIAM BURKE, ESQ., and WILLIAM JOHN DUNDAS, Esq., Barristers-at-Law.

CHARLES HARE HEMPHILL, Esq. and

WILLIAM HICKSON, Esq., Barristers-at Law.

ROBERT GRIFFIN, Esq. and W.G.

Queen's Bench, including Civil Bill and Registry Appeals.. Exchequer of Pleas, including Manor Court and Registry Appeals.

JOHN BLACKHAM, Esq., and
A. HICKEY, Esq., Barristers-at-
Law.

(FLORENCE M'CARTHY, Esq., and SAMUEL V. PEET, Esq., Barristers-at-Law.

CHAS. H. HEMPHILL, Esq., and WILLIAM HICKSON, Esq., Bar

risters-at-Law.

DUBLIN, OCTOBER 6, 1849.

6

"When I presented my first bill, digesting the criminal law, Lord Lyndhurst at once said, as this is a digest, nothing can be done with it in Parliament; we are wholly incapable of revision in such a matter; therefore let us, for security sake, refer it to another commission to revise and improve it. This course, pointed out by the never failing sagacity of that manly understanding, was taken; and we submitted the amended draft to all the judges, and to the profession at large. Of their suggestions we shall gladly avail ourselves. But if after receiving this ultimate consideration, a Committee of the House of Commons, not satis fied with what has satisfied the Lords, and the Bench, and the profession, undertakes to go through each of the codes minutely, and weigh every word of above 2,000 articles, we require no gift of prophecy to let us foresee that such a labour will have no end, and if it ever be terminated, would only mar the work of abler men more calmly considering the subject. Every sciolist who belonged to the profession, but had never practised in any of its walks." "Whatever worthy citizen had an attorney at his elbow to suggest criticisms, objections, and improvements-whatever new made senator felt the desire of private distinction more than the value of public time—all would

ment; but there is no communication between those parties from whom those different bills proceed. Hence, there is no guarantee whatever against the most manifest inconsistencies in their various provisions. But again, each party has one particular object in view, and his bill is framed to obtain that object. Hence, an almost entire disregard, not only of general principles, but of former statutory provisions. It is evidently impossible that bills so prepared can be at all safe to pass. But the evil stops not here. After any one is introduced, it undergoes alterations, first in one house, alterations made wholly without regard to the portions left unchanged; then in the other house, new changes are made, without any regard to the proceedings in the former; of course, I speak only of many instances; for such want of precaution to avoid error cannot prevail in all the alterations made. But, whoever has attended to the manner in which bills are first framed, and then altered during their passage through Parliament, must be aware what gross blunders are committed; and that such blunders are inevitable so long as the work is prepared by various unconnected parties, without superintendence. Thus it has often been said, that the scissors of the draftsman make many a clause, and so does the pen of the amender. Henee, nothing is more common (as lawyers who answer cases well know) than to find one section of a statute referring to something as aforesaid, when nothing of the kind was said before; but the section had been cut off a

former Act, in which there had been an antecedent, which was not taken. Thus far the scissors; but so too the pen. I was astonished to find my patent bill of 1835 in one or two places made wholly insensible when it was returned from the Commons; and how? by the members then introducing new matter wholly at variance with the Act, which they left unchanged. But though much embarrassment was seen to arise in courts of law and equity from this blunder, I was forced to submit on pain of losing the bill. In 1834 I was compelled to alter a clause sent up from the Commons, which would have sus pended all the criminal justice of the country from the next October sessions. The Commons were angry at their blunder being detected, and threw out the bill, depriving the country of a very valuable measure, for such it was all, except that erroneous portion.

"Of the havoc made by careless drawing, one instance, I admit an extreme one, is sometimes cited in that notable feat of the legislatorial-scissors, which awarded one moiety of a penalty, namely transportation or whipping, to the person suing for the same; and another to his Majesty, his heirs and successors. If it be said that there is sufficient security against the discrepancies, or the oversights of the draftsman in the discussions of the two houses, I would answer, first, by referring to the innumerable clauses which come yearly before those bodies. I take the first year's statutes that come to my hand, those of 1833, and I find them to contain 2,600 sections, besides somewhere from 90 to 100 printed pages of schedules; to say nothing of 195 private or local Acts, with their hundred or thousands of sections, or schedules; and this before the railway fever broke out. After that calamity, we saw in one session 400 or 500 Acts, with 13,000, or 14,000 clauses.

"The impossibility of due attention being paid to each clause, in each bill, is quite apparent.

"I would for further answer refer to the undeniable fact, that they who have the care of any bill are only occupied with having its main provisions carried, and take little heed to its details. I would, thirdly, refer to the fact, staring us in the face, that the draft of the bill is, generally speaking, to be found in the Act, with its sins of omission, and commission, increased by the errors which creep in during its progress, of this I have given in

stances."

Though we do not concur in the entire of his lordship's ideas, we can perfectly understand his letter deprecatory of interference, by a Committee of the House of Commons, with a code, the product of years of learned labour. He has proved his case thus far, that there should be a permanent staff for the careful preparation and revision of all bills submitted or passed through the house, to preserve consistency of plan, and to prevent the insertion of contradictory clauses, and all formal errors; but we cannot coincide in the view, that any measure, be it ever so well and skilfully prepared, should be laid on the table of either house with an understanding that it should not be altered. This would amount to the creation of an imperium in imperio, a law-making body more potent than either of the recognised branches of the Legislature.

As his Lordship approaches the fulfilment of one of the leading objects of his life, we can understand his anxiety, that it may not be marred by the untimely interference of an unskilled or hypercri tical Commons Committee.

Our observations only go to the extent that the suggesting power of that body should remain; we do not advocate its unseasonable interposition.

Lord Brougham's efforts, as a law reformer, have been long sustained, earnest and persevering and we hope he will live to see them thoroughly successful. In one of his greatest speeches, he animated the House of Commons to the amendment of our laws, by the most masterly eloquence. "You have it in your power to hand down your name to all time, illustrated by deeds of higher fame, of more useful import, than ever were accom plished within these walls. You saw him, conqueror of Germany, subduer of Italy, terror of the North-count all his matchless victories poor. Saw him despise the fickleness of fortune, whilst, in despite of her, he could pronounce his memorable boast-I shall go down to posterity with the code in my hand."

We should rejoice that his Lordship would be enabled to use a similar boast, that would in truth be a just subject for self gratulation. His eccentricities, his errors would be forgotten-the recollection of his wonderful abilities alone would live, enhanced by the enduring fame of an accomplishment of the mightiest and most useful character.

HOUSE OF COMMONS. RECEIVER COMMITTEE. William Tighe Hamilton, Esq-June 29.

(Continued from p. 356.)

1328. When you use the term "of the highest character in the country," do not you understand that this Cominittee is now sitting in consequence of the Court of Chancery having failed in the management of those estates? Yes, I do; I do not mean high character, in the ordinary sense of the term character, but that it is the highest court in point of legal jurisdiction.

1329. Chairman.] Supposing that you abolished the equity side of the Exchequer, how would you propose the equity business then to be done?-There is very little done now in the Court of Exchequer compared with what there used to be. My general idea is this, that you should collect all estates under one head, and then give that head precisely the same powers in all respects for the management of the estates, as the owners would have; that you should place under that head a body of receivers fully as well qualified for the purpose as the private agents of owners; that you should place that receiver in precisely the same position for all purposes of recovering rents, and all purposes of managing the estate, that the private agent is in, and that you should place the tenants in precisely the same posi tion as they would be in under a private owner, and in fact, relieve them from the very great hardships to which they are now subject, and which lead to the demoralization of the tenantry over a very great extent of country; and, lastly, that you should adopt

such a system of accounting under that head, as will resemble as nearly as possible the system that private owners for their own purposes have adopted. 1330. The first thing would be to get a fit class of persons as receivers?—Yes.

1331. The second thing would be to get proper superintendence of those receivers?-Precisely. I ought to state here that the present system is literally nothing more nor less than a machine for the collection of rent, and a machine, if I might use that figure, wholly uncontrolled by a proper "governor." I can illustrate that by putting in some interesting returns made out from the first 150 accounts which I passed this year in the Court of Exchequer, and the first 150 which were passed in the Court of Chancery, and I have taken the instance of four rather wellmanaged estates under private owners, to show a comparison of the amount of rental, arrears and receipts, and the amount expended in improvements. 1332. With regard to obtaining a fit class of persons to be receivers, you have said that by properly regulating the liabilities and duties of the office you conceive that a competition could be produced amongst a respectable class of men for it. Then with regard to the superintendence of those persons do you conceive that the Masters of the Court of Chancery and the Remembrancers of the Court of Exchequer are not suitable persons to superintend the proceedings of receivers?—I do not think, generally speaking, that a legal education is the one best suited to a person who has to manage estates; I should not. At the same time I believe that some of the persons who have filled the offices of Remembrancer and Masters in Chancery have been eminently suited for the duty.

say

1333. Is not it absolutely necessary that there should be a paramount controul over the manage ment of the estates by a legal tribunal?—I think decidedly so.

1337. Then any new instrumentality for that purpose should be under the jurisdiction of the equity courts? I think so, for this reason, that the Court has to deal with the corpus of the estate or with the rights of creditors, and therefore I think there would be inconvenience in separating the management of the estate from the tribunal that is to decide upon the thing itself.

1338. Then what necessity would there be for abolishing altogether the equity jurisdiction of the Court of Exchequer ?—I do not see any other means of bringing all the estates under one tribunal except that.

1339. You mean under the control of a court of equity? Precisely; under one Court, in order that you may have uniformity of system.

1346. Chairman.] Are not you aware of the extreme diligence of the Master of the Rolls, and the large amount of business which he does as an equity Judge? Clearly; I think he is the hardest worked Judge in the Four Courts.

1847. Do you conceive that it would be just towards him to impose additional duties upon him besides what are imposed already?—No, quite the contrary; I think he ought to have his duties lightened, if possible.

1348. Do you think that the abolition of the equity side of the Court of Exchequer would lighten his

duties?—I think it would if it were part and parcel of a better measure for receivers, and the English practice of references were adopted.

1349. In what way?-He would be relieved altogether of an immense mass of business which he now has to dispose of connected with receivers' accounts, arising in a great measure from the viciousness of the system; for instance, he has to entertain all applications for renewals and for permission to eject. Those are applications which ought to be made to the Auditor-general. He has also to entertain all applications from tenants for references to the Masters for abatements of their rents, and in fact, every other matter which concerns the management of estates must first go to the Master of the Rolls, and then go into the Master's office; and it strikes me that by adopting the system which I have suggested a very considerable portion of that business would cease, and great expense to the suitors be saved.

1350. In whom would you vest the power of deciding those questions?—I would vest it in whatever Master was appointed Auditor-general of the receivers' accounts, or in whatever other person was appointed for similar duties.

1351. Would the head of this new Court be a legal person ?—He would be a Master of the Court, and therefore legal.

1352. You were understood to say, that you thought that legal persons were not competent to discharge those duties ?—I said that I did not think that a legal education, as such, necessarily produced the best persons for the discharge of those duties. But I think that there would always be one of the five Masters who would add to his legal knowledge the other necessary qualifications.

1353. You were understood to say that one ground of the transfer of jurisdiction was, that the Masters of the Court of Chancery, or the Remembrancers of the Court of Exchequer, were not suitable persons to control the management of estates? What I mean is this, there are no less than five independent individuals, under two different Courts, managing these estates, every one of whom will naturally take a different view, and manage in a different mode; therefore I would connect them all under one head, and I would give to that one head all the duties to discharge which are now done conjointly between the Master of the Rolls and the Masters in Chancery and the Remembrancers.

1354. In the Court of Exchequer, where the duties are more concentrated in two officers, are the estates under them better managed than the estates under the Masters in Chancery?—No: I think there is a very great similarity between them.

1355. Mr. R. B. Osborne.] They are similarly badly managed ?—Similarly badly managed.

1356. Does that arise from the unsuitableness of the officers, or to what do you ascribe it?—I ascribe it entirely, not to the unsuitableness of the officers, because I am one of the officers myself, but to the system.

1357. Chairman.] Supposing one of those officers were the head of this new Board which you propose to establish, do you think he could work it well? I think he could.

1358. Then why cannot he now as an officer of the Court, the Court merely controlling the rights

No. 50.-VOL. I.

PRICE

(Per Annum, £1 10s. Single Number, 9d.

AMID the varied changes required in the real property law of this country, there is no branch of it which calls for greater revision, than that which is supposed to regulate the relation between landlord and tenant.

It is defective in two vital particulars; the land lord has no protection against the fraudulent tenant, and the improving tenant has no security for his improvements.

The want of the first protection, has led to a frightful system of fraud and illegal combination.

The whole code, though enacted by landlords, is, in some particulars, very unfavourable to themselves, and leaves them often at the mercy of the knavish occupier. Take, for instance, the law as it affects the assignees of leases. They can discharge themselves from all future liability by assignment over, We are aware that this is doubted, but it has been established by such inveterate usage as to be now considered settled. Suppose rent, reserved by lease, to fall due on the 29th of September, on the 28th the assignée assigns to a pauper-a beggar in the streets-then leaves the premises, and pays no rent for the half year, minus one day, he has been in occupation. He has broken no covenant in the lease; he was out of possession before the rent became due; by no action founded on the lease ean that rent be recovered, and that lease being still subsisting, can an action for use and occupation be maintained? This, we believe, has never been tried, and except the bona fides of the assign ment could, as to the half year which has elapsed, be treated as fraudulent-with a view to prospective discharge from liability it has been held not fraudulent we know not how that form of action could be maintained.

Nor is it easy to determine how the same instrument can be considered fraudulent for one purpose, and bona fide for another. It was executed the 28th of September, with a prospective view to discharge the liability of the gale day of the 29th, as well as every subsequent one. But the mischief ends not here, if the assignee be merciful, he will send the key to the landlord, if not, he places his pauper assignee in possession, and the landlord must allow that man to remain another half year in occupation of a dilapidating house, before an ejectment can be brought for its recovery- the expense of which he must bear.

Surely this is a great evil, which admits of easy remedy. It may be answered, that the original lessee always continues liable; but after a lapse of years, and change of parties, this liability can rarely be enforced.

There is a considerable practical inconvenience likewise resulting from the rule of law, that the action of ejectment will not lie where there is no reversion. It will be found not an unfrequent case, that the lessor, having allowed more than a year's rent to accrue, finds that he would be nonsuited at the trial, if he brought his ejectment; not because the rent is not due, nor that the legal and moral liability is not complete, but because his lessee holds for the same years or lives as himself, and he is obliged to remit that rent, and pay that tenant a handsome premium to get rid of him. Surely this evil is susceptible of easy remedy.

The legislation, of a few years since, attempted to remove the grievances, to which tenants were said to be exposed, and the right to distrain growing crops was taken away. It had probably often been vexatiously exercised, but its removal has been fraught with the most pernicious consequences, and the recent conduct of Irish tenants has pro. duced the painful conviction, that no power of