verse one or more than one material matter of fact, "as for instance, the drawing, or making, or endorsing, or accepting or presenting or notice of dishonour of a bill or note." This clause is copied from one of the New Rules of 1834, which we have cited. It will be observed, however, that this enumeration does not proceed to include the several facts from which promises would be necessarily implied; so that we submit that where indebitatus causes of action are specified in the summons and plaint, a specific denial of each will not be requisite. The latter part of the section is clear enough, and has evidently been copied from the Rules, namely, that "every defence which admits a contract in fact, but relies on matter of avoidance, or discharge, or illegality on the ground of fraud or otherwise, as, for instance, infancy, coverture, release, payment or performance, illegality of consideration either by Statute or Common Law, draw which may serve to show how far the limits of the general issue were reduced, and we now submit that, to this extent at least, such a general mode of denial is good in this country since the Common Law Procedure Act. Fully admitting, as we do, that these Rules have no force whatsoever in Ireland, still, from the language of the sections of the Common Law Procedure Act which refer to this subject, it is impossible not to see that its framers had this code in their mind at the time They are thus calculated from analogy to throw light upon the construction of the Act. The clauses to which we are about to refer are the 69th to the 71st sections of the Act. The first is that one, the cursory reading of which has given to many the notion, that the general issue has been abolished. All that it says expressly on this subject is, that "so much of any Act of Parliament as entitles or permits any person to plead the general issue only, and to give special matter in evidence without pleading, endorsing, accepting, bills or notes by way of ing the same is hereby repealed, except as to pend- accommodation, set-off, mutual credit, misrepresening actions." The marginal note is "general issue tation, concealment, or deviation shall be so expressly by statute abolished;" which is the plain meaning pleaded." Section 7 then enacts, that "in actions of the section. We need hardly say that every for wrongs, defences by way of denial shall take islawyer knows that "general issue by statute" is a sue on some one, or more than one, material matter thing quite sui generis, and altogether different of fact alleged in the summons and plaint, and all from the ordinary general issue, embracing as it defences which admit the matter complained of, does every imaginable sort of defence under one but rely on matter of avoidance, excuse or justifigeneral denial. Then follow two sections, one re- cation shall be so expressly pleaded." Now, with relating to contracts and the other to torts, with respect to this, we say that that plea which has hispect to which this remark arises, that it is much to be lamented that the authors of the Act did not make them wholly general, or completely specific. By framing them as they have done they have left a grave question, as to their meaning, for judicial interpretation. Section 70 begins by providing that "in actions upon contract every defence by way of denial must traverse some one or more than one material matter of fact." Now had it stopped there, we should have said that it gave an option to the defendant of singling out any one material allegation in the plaint and traversing it, or if he so pleased, by one sweeping plea to deny the whole array. In this latter case the plea of the general issue, according to the present form in each case, would be unobjectionable, its object being understood to be that of merely denying the plaintiff's case and not of meeting it by a counter case. But then follows an enumeration of instances of allegations to be traversed, which seems to suggest that the traverse should specify the various facts which it means to deny. The section says that the defendant must tra thereto in such actions been termed the general issue, namely, "not guilty" ought to be unobjectionable, so far as it is to be restricted to putting in issue merely the wrongful acts. There is nothing in this section, we further submit, to prevent the defendant by one plea denying all the traversable allegations in the plaint, but as "not guilty” ex vi termini is applicable only to the acts complained of, we think that it ought to have the same force attributed to it, as the New Rules of 1834 expressly point out, and that all matters of inducement should be expressly denied. Section 71 has, we believe, as yet received no judicial exposition, but not so section 70, and we are glad to say that so far the views which are here submitted have been supported. The courts have held, and most properly, that the old defence of nil debet is out of the question; but in a very recent case-Martin v. M Hugh and another, (6 Ir. Jur. 279,) it was held, that nunquam indebitatus was a good plea, because that it amounted to a denial that a cause of action ever existed, and in fact that where Again, in actions of tort, we submit that all tortious acts are well traversed by the plea of not guilty. By the adoption of a simple rule such as we have proposed, the courts will confer two benefits upon the defendant-first, by saving him the ex the declaration contained a variety of causes of ac- contracts themselves, without the necessity of a tion, for any one of which, if proved, the law would prolix categorical denial. imply au obligation to pay, the general traverse of "never indebted" put all in issue. This is precisely the sense in which we say that "the general issue" still exists. We submit, on the whole, the following propositions with reference to this subject founded upon a diligent consideration of the word-pense of voluminous pleading, and of "stuffing the ing and probable intent of the Act; namely, that, with respect to contracts a general denial of the debt or several debts in the plaint ought to be permitted so far as to put in issue such facts as would, per se, if proved, raise a necessary legal implication in favour of the obligation, or in cases of simple contract, to dispute the alleged terms of the rolls" of the courts as was said, in former times, with unnecessary matter; and, secondly, by lessening the risk of his leaving some portion of the plaint uncovered, and thus of admitting so much of the plaintiff's cause of action. ERRATUM. In page 159 of current volume, column 2, note, line 8, instead of the words "that the husband and wife could transfer that charge," read "that the husband and wife could not transfer," &c. T HE EOLIAN H. Boyd, ... Rev. T. F. Martin, ... ... Rose Murray, John Aldridge, J. Boyce, John Wolsley, ... ... MANTLE. BROWNE and PAYNE beg to call the attention of their Patrons and the Public to their new Overcoat, which has been designed by them. selves, and is certainly the most stylish garment ever introduced. It can be worn as a Coat or Cape; its external appearance is only conspicuous for unassuming plainness, the characteristic of a gentleman's attire and from its durability and exquisite finish it is daily becoming a general fa vourite; it recommends itself particularly for travelling or driving purposes As there is a great demand there are several made up for immediate use. BROWNE and PAYNE, Tailors to his Excelleney the Earl St. Germains, Among the many novelties lately introduced in gentlemen's dress we have noticed a new garinent designated the Eolian Mantle,' designed by Messrs, Browne and Payne, of Sackville-street. It is decidedly one of the most stylish and useful garments ever introduced to the public: it is so constructed as to be worn as a coat or cloak. It reflects the highest credit on that respectable firm; and we are sure their efforts in the cause of fashion will meet that success they so justly deserve."-Evening Mail, November 2. Just Published, price 7s. 6d., by Post, Ss. Caroline C. Ball, Nicholas M. Power, THE LAW OF EVIDENCE AMENDMENT ACT; with NOTES, By EDWARD P. LEVINGE, Esq., Barrister-at-Law. THE NEW ECCLESIASTICAL CODE respecting the erection and endowment of Churches and Chapels, and Ecclesiastical Residences and dilapidations; containing the United Church of England and Ireland Act, Churches and Chapels (Ireland) Act; Ecclesiastical Resi dences (Ireland) Act; with explanat ry Summary, Contents, and Index. By WM. D. FERGUSON, Esq., Barrister.at-Law. NEW ORDERS IN CHANCERY. Dublin: EDWARD J. MILLIKEN, Law Publisher, 15, College-. 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. Oracrs for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE 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 MILLIKEN, residing at the same place, all being in the County of the City of Dublin, Saturday, May 27, 1854. DUBLIN, JUNE 3, 1854. COURT OF COMMON PLEAS-(Continued): IN RE MALONE....... 291 GOGGIN v. O'REILLY. Practice-Conditional or- 292 292 BOWERS V. HAYDEN. Practice-Pleading double ......... 295 ments POWER V. THE POOR LAW COMMISSIONERS. Practice-Leave to reply-16 & 17 Vic. c. 113........ 296 son for that diversity. It was certainly unreasonable, that the Common Law Commission should have been so exclusively framed as not to include the We understand that a second Common Law Pro- name of some Irish lawyers, and possibly this may cedure Act has been introduced into the House of have led the Hon. Member for Enniskillen, a man Commons under the auspices of Mr. Whiteside. jealous of the honour of his order, to have pursued We have not yet seen a copy of this Bill, but we an independent course in the matter; but having have been informed, that it consists, principally, of thus entered his protest against the slight of those clauses which were comprised in the last Bill, fered to the Irish Bar, it becomes him to consider respecting equitable defences, and which were whether it would not be better to adopt the princi expunged in the House of Lords. There is an-ple of the English Bill, and so avert the confusion other measure, with respect to England, based consequent on a diversity of codes. We think that upon the Report of the Common Law Commission- the experience of the measure of last year, which ers, which has been going through its stages and is so far as it has departed from the English Act, we likely to pass into law this session, and it is possi- will venture to assert, is and will be increasingly ble that the Irish Bill may have borrowed some of proved to be an utter failure, making that, which its provisions therefrom, one especially relating to was before plain, a mass of confusion, throwing a trial by jury in civil causes, but we believe that in beautiful system into a wild chaos, and while it many very important respects the scope of these proposes to abridge the expenses of litigation, sadmeasures differ. This we think peculiarly unfor- dling the wretched suitor with a mass of costs, tunate, causing, as it may do, a still wider diversity hitherto unknown, we say that the consciousness of between the already conflicting laws of the two this ought to make the Legislature slow to adopt countries, in the total absence of any possible rea-without great caution the proposals of the author of this system, or to regard him, however trans- Lords, the better-informed legal mind of that ascendant may be his abilities in other respects, assembly will pause before they add to the existing they unquestionably are, as gifted with the talents of a lawgiver. When we say this, we mean not to detract from the great merits of our talented countryman, whom we are proud to regard as such. No man has done more (and alas! we want a few more such,) to make Irishmen and Irish barristers respected in the House of Commons. No advocate at our Bar has earned earlier and better sustained forensic distinctions, or borne his honours more meekly. But it does not follow, that the man who can conceive best a grand idea, can best work out its petty details, and it is, therefore, no detraction from the fame of a great lawyer to say that he is always not the man best adapted to propose a well digested scheme of law reform. Sometimes we see those talents in combination, but that is rare. There is, at the other side of the Channel, a certain noble lord, who has doubtless the most versatile mind and the greatest variety of attainments that the world has for a long period beheld, and who has amongst his other multifarious pursuits turned his attention to law reform, and yet had the Legislature, in an evil hour, let him have his way, the effect of his experiments upon the laws of England would doubtless have involved the practice of the law in the greatest embarrassment. It is not, moreover, for one man, without grave consideration, to take upon himself to devise a scheme which will affect the property of thousands. Such a measure should first pass the ordeal of many competent minds of different construction, and hitherto engaged in diverse pursuits. Had the Common Law Procedure Act of last session emanated from such a commission, consisting, in addition to its author, of two common law judges, two practising barristers, two officers of the courts, and two or more eminent members of the Law Society, we will venture to say that it would not have been its fate to have encountered any portion of the disapprobation which this unfortunate measure has hitherto met at the hands of the bench, and will meet with again and again, as its absurdities shall be gradually developed. We hope, therefore, that until we in some degree recover from the confusion into which this has thrown us, no more such Acts will be inflicted upon us. It is very possible that the present measure may pass the House of Commons, to a vast majority of whom its provisions are utterly unintelligible, as would be those of any purely legal measure; but we trust that when it comes before the House of confusion, and that the final result will be the appointment for Ireland of a Common Law Commission, one instruction to whom will be, the assimilation, as far as possible, of the law of both countries. SIR, To the Editor of the Irish Jurist. As Mr. Whiteside has introduced another bill into Parliament, giving the Superior Courts increased jurisdiction in trying actions without the intervention of a jury, on consent of the parties to the suit, would you allow me to suggest that when a party shall have obtained a judgment for a sum not exceeding £10, exclusive of costs, and the sheriff return on the execution that the defendant is possessed of no goods or chattels, or goods and chattels which are insufficient to pay plaintiff's debt and costs; that, thereupon plaintiffs may issue a summons, a copy of which to be served on defendant, requiring him to attend before the Master of the court in which judgment was obtained, to show against him, if the debtor shall not pay the plaincause why execution of the person should not issue tiff his debt and costs forthwith, or should make default in paying them by such instalments as the Master shall direct, having regard to any salary, the defendant may be possessed of or entitled to, wages, annuity, life-estate, shares, or expectancy, and his circumstances, family, and ascertained lia. bilities generally. I would also beg leave to suggest that the law fund duty on abstracts for Nisi Prius, Report of Master, and requisition to enter judgment of all kinds, be each reduced from 10s. to 2s. each. It is unfair towards the suitors to charge such enormous duties, as well as unjust towards both branches of the profession, who have already paid such enormous stamp duties for liberty to practise, and for which the attorneys have to pay an annual tax, that their clients should be taxed also. I have no doubt, many debts in a stagnant state at present would be sued for if the law fund duties mentioned were so reduced, if not altogether abolished; and I have no doubt that the increased income tax the public and professional men would have to pay would far more than compensate for the remission, Income tax being a payment out of what we have in part or in full, of the law fund duties as well. actually received, even though it should be a little higher than at present to balance any loss of the making creditors advance sums which they may law fund duties, would be far more satisfactory than lose, as well as the debt, by insolvency, &c. &c., pending the action. But we only seek for a reduction of law fund duties, and I have no doubt that in it would produce a greater annual revenue, as well the same proportion as postage or receipt stamps, as an increase in the return of the income tax. I would also suggest, that for sums under £10, and on which the Taxing Master does not allow for signadefendant should be allowed to charge as against ture of counsel on the plaint, neither plaintiff nor each other, briefs, fees, or attendances on senior counsel; for while I am of opinion that the administration of the laws by the superior judges, in small or great sums, is that which will insure them the greatest respect, and will uphold the dignity of the law, the preservation of our property and person, and of society, much more than the administration of them by inferior judges, the Assistant Barristers, only one of whom sits in each Civil Bill Court, whereas four judges in most cases sit and decide on each case in the superior courts, it does not depend on the amount claimed, as the Civil Bill Act presumes the necessary legal knowledge the judge should possess to decide on it, but on its nature; but where the case is simple as well as small in amount, I would not, on trial, allow the costs of senior counsel employed in such cases to either party, for the plaintiff cannot appeal from a civil bill decree, while, on the other hand, it would diminish the number of appeals of defendants from the Assistant Barristers' decrees from being reversed, owing to the cheapness of proceedings in the superior courts, in the first instance, especially where the parties reside in an ad jacent county, or near a railway. I think the time for appearance and defence ought to be confined to six days, for I find twelve days gives the defendant too much time to make away with his goods. Lastly, | I would suggest that a number of persons similar to the process-servers of the Civil Bill Court should be appointed for the purpose of serving plaints; indeed I think the present process-servers of the Civil Bill Court could discharge that duty also, and thus put an end to bribing bailiffs, and have the process of the court carried into effect speedily. At present the priority of a creditor's demand too often depends merely on the honesty and diligence of the person who serves the writ, regardless of its date. I regret, as it may prejudice a jury, and prevent fair trials in small sums, that one of the judges should have let drop words from the bench against attorneys issuing plaints for sums under £5 when the law authorises them to do so, giving them half the costs of an action of £20 if they succeed, and full costs to the defendant (as if it were an action for £20) in case he succeeds; so that it comes to this, a person will not issue a plaint for sums even under £20, unless he have a perfectly clear case in which he is entitled to judgment by default; and if the judges only looked, on the other hand, to the number of plaints which have been issued and settled without going to trial, saving the plaintiff the loss of time in waiting for the sittings of the Civil Bill Court, which he must do even when the defendant does not contest the plaintiff's claim, and, should he do so, an appeal lies, as well involving a loss to the plaintiff of time, of more value than a small debt, and the profits at free trade prices, being only one shilling or two shillings in the pound, they would not have spoken so strongly against an Act which conferred such protection to the better and more numerous portion of society. The Chamber of Commerce's report spoke highly of the Act. I have issued a good number of plaints myself, and not only all my clients spoke in the highest terms of the Act, but even almost all the defendants gave me instructions to issue plaints, and called the Civil Bill Court a humbug and a robbery of the public time. Persons may now be putting in defences, having no grounds of defence whatever, in small sums, and go to trial merely to sham one, and show the hardship they impose on themselves for not paying their small debts in a reasonable time. The smaller the debt the easier it is paid, and no one should be allowed to contract for what he will not pay without being punished, even before going to the Insolvent Court. Hoping insertion in your valuable journal, I remain, Sir, Your obedient servant, JOHN JERVIS DOCKRILL. [We do not hold ourselves responsible for the suggestions contained in the above, but leave them to the consideration of the profession.-ED. I. J.] Encumbered Estates Court. CONDITIONAL AND ABSOLUTE ORDERS, ENDING 26TH MAY. |