IRISH JURIST. No. 259-VOL. VI. DECEMBER 10, 1853. PRICE, per Annum, £1 10s. NAMES OF THE CASES REPORTED IN THIS NUMBER. COURT OF CHANCERY: 37 39 ing record by plaintiff after jury sworn......... COURT OF EXCHEQUER: LYSAGHT V. SCULLY. Landlord and tenant-Apportionment Assignee-23 & 24 Geo. 3, c 46, Ir. MEGRES V. SMITH. Practice- Variation from common form........ v. SMITH. Practice-Substitution of serviceWrit of inquiry... 41 43 47 47 MAYERS V. SMITH AND OTHERS. Inspection of documents-14 & 15 Vic c. 99, s. 6 DUBLIN, DECEMBER 10, 1853. THE Parliamentary Voters' Registration Act, (13 & 14 Vie. cap. 69,) requires that where there is an appeal from the decision of the Revising Barrister in point of law, in case "he thinks it reasonable and proper that such appeal should be entertained, he shall state in writing the facts which, according to his judgment, shall have been established by the evidence in the case, and which shall be material to the matter in question, and shall also state in writing his decision upon the whole case, and also his decision upon the points of law in question appealed against."-section 58. This case, when properly indorsed according to the requisites of the Act, is to be returned to the Court of Exchequer Chamber, there to be dealt with. The appeal is directed to be solely with reference "to any point of law material to the result of the case." This Act of Parliament has now been in force for nearly three years, and many appeals have come forward under its provisions. Our present object in referring to this subject is to express our deep regret that several appeals have, when opened, been found by the court to be utterly informal, and impossible to be adjudicated on, in consequence of the loose and imperfect mode in which they have been drawn. Hardly a single Ression of the Court of Appeal has occurred in which the public time has not been wantonly consumed by miscarriages of appeals for the reasons above stated. It would be invidious to allude more particularly and in detail to a subject which must have frequently impressed the Bar with feelings of great dissatisfaction. We respectfully put it to the honourable and learned body of Assistant Barristers, who are ex officio the Revising Barristers of Ireland, and for which additional duty they receive a handsome remuneration, whether they are discharging their duty creditably to themselves and advantageously to their fellow countrymen by thus slurring over their appeal cases. We do not mean to convey that this neglect is by any means universal; far from it; but it is impossible not to see that the defaults of some of its members create a feeling unfavourable to the body, and this should act as a further indacement, if such were needed, to all who occupy this enviable station to do their very best towards the complete discharge of their functions. The Act does not make it imperative upon them to reserve frivolous points for the opinion of the court. It were far better that they should act very spar. ingly in the matter of this appeal jurisdiction; and, if they kept rigorously to the rule of never reserving an objection which they themselves did not thoroughly understand, a vast deal of time and trouble would be spared. The court have, by section 78, a power to remit the appeal to the Assistant Barrister to be more A Summary of Transactions relative to the proposed For- were given under its provisions "to open a new line of street in a direct line from Richmond Bridge to the King's Inns, by the removal of the house No. 3, Inn's-quay, and all such houses, yards, buildings, and premises as are situate on the east side of Chancery-place, west side of Charles-street, east side of Mountrath-street, north, and south sides of Pill-lane, east and west sides of Fisher'slane, and of Bull-lane, north and south sides of Mary's-lane, west side Georges'-hill, west side of Anne street, and of Linen-Hall-street, north and Ball's-lane, and of Cuckoo-lane, and east side of south sides of King-street, of Lisburn-street, of Coleraine-street, as may be necessary for the purpose." The compulsory powers of the Commissioners for purchasing houses, &c. were limited to four years, and notwithstanding a spirited remonstrance, most numerously and respectably signed, amongst others by the churchwardens of the contiguous parishes, urging the Commissioners to lose no time in opening this locality, the limit of four years was allowed to expire without the good work being commenced. In the mean time the turmoil caused by the advent to power of the new corporation diverted the minds of the people by the quasi political excitement which it produced, and it was not until 1851 that the subject was again revived. Want of space compels us to omit the intervening stages, and to content ourselves with announcing how the matter at present stands. The project has already received the marked approbation of all the public bodies likely to be affected. The Corporation of Dublin, which, under the Dublin Improvement Act, are now in the place of the former Wide Street Commissioners, the Benchers of the King's Inns, the Law Society, the Board of Health, the Guardians of the North Dublin Union, the staff of the public hospitals, the Midland Railway Company, the Police authorities, the Quarter Sessions Grand Jury, and last though not least, the victuallers and poulterers of Ormond Market, all accord their warmest sanction, and yet as Mr. Norwood remarks, "the street is still unmade," asking with no little show of reason, "can there exist any longer a doubt of its being necessary?" He invites his readers to examine for themselves the state of the district. We have done so, and we willingly add our testimony to the unexaggerated"wide existing ills with which it abounds." We have little more at present to say on the subject. Mr. Norwood has shown, we think conclusively, that now or never should the blow be struck. In 1833 difficulties existed and inducements were wanting to effect the project, which is not the case at present. Then it was calculated that £80,000 would have been required; now, in consequence of the depression of property, which is again beginning to rise in value, probably the same result could be gained by an outlay of one-half, as will appear by an examination of the comparative valuations given by Mr. Norwood at page 13. Again in 1833, and for years afterwards, that grand line of communication between the capital and the West of Ireland, which now has its terminus at one end of the proposed street, was undreamed of. It may be asked, what have we as legal journalists to say to this project? We auswer, a very great deal. In the first place, considering that the old maxim is replete and fees, and interest up to the present day, is with sense, £50 3s. 6d. "Nam tua res agitur paries cum proximus ardet," of the Four Courts and its vicinity should be puriwe are most anxious that the physical atmosphere fied of malaria, and that the reeking abominations so graphically described at pages 21-24, as existing in this locality, should be swept away. We moreover have a special interest in the establishment of a direct line of communication between the Law Courts and the King's Inns, and the offices adjoining, which the new thoroughfare would effect for us. We must however be understood to protest against its being imagined for a moment that we could accept of the new street as an equivalent or a compromise for the continuance of the Incumbered Estates Court in its present inconvenient position. Every day that that tribunal tarries in Henriettastreet works an additional injustice; and, whatever may be the term of its continuance, as a separate judicature, we shall ever raise our voice in favour of its sittings been held where they will be available to the Bar generally. We say this, because it seems in one place in Mr. Norwood's pamphlet, as it were, hinted at, that the new street might solve this difficulty, but which we by no means allow. We now take our leave for the present of Mr. Norwood, thanking him heartily for his industry, and trusting that his labours may be completely successful. FURTHER FORMS OF THE INCUMBERED ESTATES' COMMISSIONERS, UNDER STATUTE 16 & 17 VIC. c. 64. FORM OF CONDITIONAL ORDER FOR CONVERSION. Tuesday, Nov. 24, 1853. In the matter of the estate of, &c. UPON motion of Mr. Solicitor for the petitioner, and upon reading the statement of facts filed in the office of the general clerk the 20th instant, and upon reading the order for sale in this matter, dated 1st January, 1853, whereby it appears that the Commissioners have ordered a sale of a lease in perpetuity of the lands of Clonea, in the " Barony of," &c., such lease being dated the 9th day of August, 1769 :* It is ordered by the Commissioners that the said lease be converted into a fee-farm grant, on the following terms, that is to say :— 1st. That the fee-farm rent shall be the yearly sum of £88, in lieu of the present rent of £82 7s., and of the renewal fines and fees, and of the excep tions, reservations, and rights, hereinafter stated to be commuted. 2nd. That the amount now due for arrears of rent, including receiver's fees, after deducting the proper proportion of poor's rate, is £39 2s. 4d. 3rd. That the amount now due for renewal fines • If the order apply to a superior lease, add "and it appearing that the title of the lessor is derived under a certain other lease in perpetuity, dated the 8th January, 1768." 4th. That the exceptions, reservations, and rights also mentioned such sums being included in the under covenants mentioned in the schedule hereto, said rent of £88-unless cause be shown to the contrary, within twenty-one days after the service of this order upon, "&c." shall be commuted for the annual sums therein And it is further ordered, that in case the owner of the reversion shall be willing to accept an addition to the fee-farm rent in lieu of any of the other exceptions, reservations, and covenants in the said lease, he shall be at liberty to apply to the Commissioners in relation thereto, upon notice to the petitioner and the parties who have appeared in this matter. two of the Commissioners for sale of Incumbered Estates in Ireland, under the authority of an Act passed in the 13th year of the reign of Queen Victoria, intituled, "An Act, &c.," and of the Acts for continuing and amending the same, in consideration of, "&c.," do grant unto the said R. S. the town and lands of Clonea, in the barony of Ikerrin, and county of Tipperary, containing 350 acres, 3 roods, and 16 perches, statute measure, or thereabouts, and described in the map annexed hereto, with the appurtenances (excepting, &c.)* To hold the same unto the said R. S., his heirs and assigns for ever, subject to the leases and tenancies mentioned in the schedule hereto, and subject to the perpetual yearly rent of eighty-nine pounds, payable halfyearly on the 1st day of January and the 1st day of July in each year (the first half-yearly payment being due on the 1st day of July, 1854), such rent being a fee-farm rent, under the Renewable Leasehold Conversion Act, in respect of the said lease for lives renewable for ever, and subject to all powers and remedies for enforcing payment of the said rent, or existing in respect thereof, and also subject to the covenants on the part of the owner of the land mentioned in the said recited order, and with the benefit of the covenants on the part of the owner of the fee-farm rent also mentioned in the said recited order. In witness whereof, &c. FORM OF DEED of Covenant, Accompanying Commissioner's Conveyance, and to be engrossed on the same parchment. THIS INDENTURE made the seventh day of March, 1854, between John Stokes, of -- Esq., of first part, and R. S., of the second part, witnesseth that the said John Stokes, doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said R. S., his heirs and assigns, to observe the several covenants referred to in the annexed conveyance, on the part of the owner of the rent, and that the said R. S. doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said John Stokes, his heirs and assigns, to observe the several covenants referred to in the annexed conveyance, on the part of the owner of the land. In witness whereof, &c. The exceptions, &c., are to follow the terms of the lease, except so far as they may be modified by the order for conversion. FORM OF HABENDUM. Where the Interest to be converted is an UnderLease. To hold the same unto the said R. S., his heirs and assigns for ever, subject to the leases and tenancies mentioned in the schedule hereto, and subject in the first place to the perpetual yearly rent of £89, payable half-yearly, on the 1st day of January, and the 1st day of July in each year, (the first half-yearly payment being due on the 1st day of January, 1854), such rent being a fee farm rent under the Renewable Leasehold Conversion Act, in respect of the said lease for lives renewable for ever, dated the 7th day of July, 1779; instance by the owner for the time being of the and such fee-farm rent being payable in the first fee-farm rent of £153, next hereinafter reserved, and subject in the next place to the perpetual yearly rent of £153, payable half-yearly, on the 10th day of April, and the 10th day of October in each year, (the first half-yearly payment being due on the 10th day of April, 1854), such rent being a fee-farm rent under the Renewable Lease hold Conversion Act, in respect of the said lease for lives renewable for ever, dated the 7th day of November, 1781, and subject to all powers and remedies for enforcing payment of the said rents, and with the benefit of the covenants contained or or existing in respect thereof, and also subject to, referred to in the said order, on the part of the owner of the land for the time being, and the respective owners of the said rents for the time being. AS TO THE SALE OF Arrears of Rent. On settling the rental, the petitioner, or the party interested, may apply to the Master to have the arrears of rent due by any tenant at the time of sale, included in the lot; and in case the Master, after a full consideration of the matter, shall grant such application, it shall be stated on the rental that such arrear as may be due at the time of sale is so included in the lot. Every conveyance to a purchaser may contain an assignment of rent which may have fallen due subsequently to the sale, as well as of any arrears of rent due prior to the sale, and included in the lot. JOHN RICHARDS. MOUNTIFORT Longfield, LL.D. CHARLES JAMES HARGREAVE. Incumbered Estates Commission, 18th November, 1853. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 178. Quarterly, 9s 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, December 10, 1813 IRISH JURIST. No. 260.-VOL. VI. DECEMBER 17, 1853. PRICE, per Annum, £1 10s. COURT OF EXCHEQUER: SHARPLEY, ADMINISTRATRIX OF SHARPLEY V. HORNSBY. Practice-Taxation of costs-Notice of action-Counsel's fee- Corporation- Publication of notice of writ of summons in Gazette-Cansultation-5 & 6 Vic. c. 89-13 Vic. c. 18........ DUKE OF LEINSTER AND OTHERS v. BROPHY. Practice-Taking_defence-Nullity.............. CLARKE V. BOND. Residence-Permanent lodger — Fraudulent change of abode -14 & 15 Vic. c. 57. COURT OF EXCHEQUER CHAMBER: Par RYAN, APPELLANT; BATES, RESPONDENT. liamentary borough franchise-Payment of rates -Dublin Collection of Rates Act (12 & 13 Vic. c. 91)-13 & 14 Vic. c. 69.... BOON v. MOFFETT; BOOTH V. MOFFETT. Power af Revising Barrister-Notices of claim and objection-Signing notice-13 & 14 Vic. c. 69..... WATERFORD CITY SUMMER ASSIZES: MOORE AND ANOTHER, ASSIGNEES OF SPARROW, of administration should be obtainable in the deceased's own locality, or that of his representatives; but the reasons given for a central court of judicature on all subjects connected with testamentary disposition are unanswerable. It is suggested that the local courts should have an office or department attached to them for the purpose of receiving wills with affidavits of execution, and also demands for letters of administration. These documents when received should be transmitted by the clerk of the local office of the Court of Chancery; that THIS subject which has so long occupied the attention of both branchesof the profession in this country, and which created such diversified sensations pending the abortive introduction of Mr. Keogh's Bill, is likely to be taken up with vigor and determination by our brethren in England during the approaching session of Parliament. The results of the deliberations of the Law Amendment Society as published in the 18th Volume of the Law Review, 323-336, a separate jurisdiction connected with the Court and 19th Law Review 121, suggest some improvements which are well deserving of consideration by us, and we hope our legal representatives will watch the preparation and introduction into the house of the bill, and extend the benefit of its provisions to this country as far as they are applicable. The Assistant Barristers Courts in this country and the County Courts in England, have created a certain predilection in favor of local jurisdiction. We are disposed to concur with the writer in the Review, in the opinion that probate of wills and grants of Chancery, and subject to its general control (as the Court of Bankruptcy or Rolls Court is now) should be constituted to determine the validity and construction of wills, to administer assets; the present jurisdiction of the Ecclesiastical Courts should be transferred to that newly appointed tribunal; this tribunal should possess the full and conjoint powers of a Court of Law and Equity, have powers of empannelling juries, and examining witnesses viva voce, and taking other proceedings which would tend to abolish the present intermina |