'loss of time and other expenses as they may deem fit: ' and whereas doubts have arisen in some cases as to the 'legality of such orders on the treasurer, in consequence of 'their having been made payable to the clerks of the re'spective petty sessions:' be it enacted, that any such orders drawn in the manner last mentioned, or to the like effect, shall be as good and valid as any such orders drawn as in the said act provided; and that the grand jury of any county, county of a city, or county of a town in Ireland may present, without previous application to presentment sessions, to be raised off such county, county of a city, or county of a town, or any barony, half barony, townland, or other division or denomination of land, within which any such special constables may have served, the full amount of all sums paid by any such treasurer, whether such order or orders shall have been made in favour of each individual CHANCERY. PURSUANT to the Decree in this Cause, bearing date the 56 day of November, 1818, I hereby require all persons having Charges and Incum brances affecting the Houses, Tene. JAMES MERYRICK, and Dated this 6th day of February, 1849. special constable, or in favour of the clerk of the pettyA THE LAW OF HUSBAND AND WIFE. A Treatise on the Law of Husband and Wife as respects Property, partly founded upon Roper's Treatise, and comprising Jacobs' Notes and Additions therete By J. E. WRIGHT, Esq. of the Inner Temple, Barrister-at-Law. ro royal 8vo. £2 10s. boards, the amount paid to him, and a certificate from the magis- A TREATISE ON THE LAW OF LEGACIES. By trates at petty sessions that such sums have been so paid by their order. 14. That the said recited act of the sixth year of the the late R. S. DONNISON ROPER, Esq., Barrister-at-Law, f Gray's.inn; and by H. H. WHITE, Esq., Barrister.at-Law, of the Mi dle Temple, Fourth Edition. 2 vols, royal 8vo. £3 3s, boards, reign of His late Majesty King William the fourth, and the ROSCOE'S LAW OF NISI PRIUS EVIDENCE. A several acts in force amending the same, be construed as one act. and this act, shall 16. That the schedules to this act annexed shall be deemed part of this act. 16. That this act may be amended or repealed by any act to be passed in this session. Digest of the Law of Evidence on the trial of Actions at Nisi Prin By H. ROSCOE, Esq., of the Inner Temple, Barrister-at-Law. Seventh Edition, with considerable additions, by E. SMIRKE, Esq. Barrister-at Law. Í vol. royal 12mo. 248. A TREATISE ON THE LAW OF EVIDENCE, as administered in England and Ireland; with Illustrations from the American and other Foreign Laws. By JOHN PITT TAYLOR, E of the Middle Temple, Barrister-at-Law. 2 vols, royal 8vo. £210, A SELECTION OF LEADING CASES IN Various Branches of the Law, with Notes. By JOHN WILLIAM SMITH, Esq.. of the Inner Temple, Barrister-at-Law. Third Edition. Ry H.S. KEATING, Esq, and JAMES S. WILLES, Esq., of the Inner Temple, Barristers at-Law. 2 vols. royal 8vo. £2 12s. 6d. Erish Jurist No. 21.-VOL. I. MARCH 24, 1849. PRICE (Per Annum, £1 108, 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: Court of Chancery, in- (ROBERT LONG, Esq., and cluding Bankruptcy JOHN PITT KENNEDY, Esq., Bar- Rolls Court........ Equity Exchequer. WILLIAM BURKE, ESQ., and CHARLES HARE HEMPHILL, Esq. DUBLIN, MARCH 24, 1849. {ROBERT GRIFFIN, Esq., Barris insisted on as a reason why a larger price should be given; each proprietor would hold back, in the hope that he alone might be able to retain his property, which he might expect would be raised into prosperity again, by the attraction, as it were, of the surrounding country. WHILST the advocates of the antagonising schemes for the relief of the Irish poor are urging arguments in favour of individualizing responsibility, on the But how to discriminate between those properone hand, or charging the support of the paupers ties which should thus be taken on equitable terms, of the South and West of Ireland on the industrious and those which should not? This is a question inhabitants of the North and East, on the other-which, though difficult, yet, we think, admits of from the fertile brain of Sir Robert Peel has sprung a proposition, which, from its vastness of conception, its tendency to roll back the flood of pauperism which threatens to overwhelm the whole island, and raise its blighted provinces to a prosperity which they never before enjoyed, is worthy of the sagacity and the renown of this statesman. He proposes that Government, through the agency of a Commission, should get possession of the properties of the ruined landlords in the pauperized districts, on equitable terms, and arrange for their re-distribution, thus introducing new blood into Ireland, new enterprise, and a new division of property—a proposition by which every one interested would be advantaged,-the pauper, who would be employed and fed-the purchaser, who would be enabled to lay out his capital to advantage-the country, which would be relieved from the imposition of a rate in aid-and even the proprietor himself, who would thus have an opportunity of disposing of an estate which is unprofitable, and perhaps an incumbrance to him, on better terms than he could otherwise have hoped for. To carry out this plan, the contemplated Commissioners must be armed with powers, not only to get possession of these properties on equitable terms, but to take it. Public money is generally considered in Ireland as fair game, and proprietors, dealing with the Government as a purchaser, would insist on extravagant terms; the very amount of pauperism and misery on their estates, crying loudly for relief or employment, would probably be solution on the following principles : The rate for the support of the poor is, under the present law, the first charge on property; its first duty is to supply means of existence to the population existing on its surface. In the Ballina union, instanced by Sir Robert Peel as a type of the Connaught Unions, according to the Report of Capt. Hamilton, 12s. 6d. in the £1, on the nominal value of the Union, would not be sufficient for the support of the poor for the year ending the 29th of September next, Lord John Russell, in his proposition, assigns 7s. 6d. in the £1 as a maximum, which the rate should not exceed, insisting, however, that to this extent, property shall contribute to the support of its poverty. Would it be unreasonable, then, to demand that properties which could not discharge this, their first liability, and that could not fulfil this their first duty to society, even to the limited extent of 7s. 6d. in the £1, if that sum were fixed on as a limit, should pass at once into other hands? If a proprietor have not the means of paying 7s. 6d. in the £1, towards the relief of the poor, it is clear he cannot have the means of cultivating his property and rendering it profitable to himself, or the means of support to his tenantry; and if it be intended to insist on the payment of 7s. 6d. in the £1, is it not better to test the solvency of the party at once? Is there any reason to suppose that he will be better able to pay at the end, than at the beginning of the year, especially if he have not the means to cultivate his property in the meantime ? Is it just towards those provinces which are called upon to contribute the public advantage to take possession of, might to the support of pauperism in the distressed Unions, be estimated. to allow fertile tracts of land to continue in the hands of parties, who not only cannot cultivate them, but who cannot pay even this limited amount of poor rate? For these reasons, we think that the payment of 7s. 6d. in the £1, or whatever other rate may be fixed upon as a maximum, should be adopted as a criterion of the capability of a party to hold land, and that on his failing to make this payment, the Government Commissioners should be empowered to enter into possession on equitable In districts where properties are waste, and proprietors are beggars, poor-rate can only be levied by the sale of the estates themselves, and the more rapidly this crisis is hurried on, the more advantageous it will be for the owners, the occupiers, and for the country generally. terms. The owners of estates in the distressed districts will consider this plan confiscation, and a flagrant violation of the rights of property. However, if Captain Hamilton's Report be correct, they have very little to lose; and even if their sole source of hope, the potato, again succeeded, the country would not be placed in a much better condition. Captain Hamilton says "I very much doubt whether the present real value of the Union, if exclusively devoted to the support of the poor, would prove sufficient for the next few years." And again " Whether the future success of the potato crop would enable or induce the landlords to pay fair wages for fair work, is, I think, very doubtful. It appears to me more likely, the tendency would be rather to return to the old state of affairs, notwithstanding the bitter experience of the last three years." However, we do not think that when Sir Robert Peel spoke of equitable terms, he meant to give proprietors no remuneration for their estates, because they are at present, and under the present system, of no value. Lord John Russell has proposed 7s. 6d. in the £1, as the maximum to which property should be taxed for poor-rate. If property remains in the hands of the present proprietors, there is every reason to conclude that this 7s. 6d. in the £1 would become a permanent tax on the distressed Unions; so that if the proposal of the Premier becomes law, it will diminish the value of property in these Unions by 7s. 6d. in the £1. If, then, it is considered reasonable to tax property to this amount, and if 20 years' purchase on its valuation be considered its gross value, would it be unreasonable to fix on 12 years' purchase as an equitable price for the fee-thus giving the proprietor the full value of his estate, deducting merely the value of the poor-rate, supposed permanent? Of course, a further deduction should be made, in proportion to the quit rent, county rates, and rent charge to which the estate might be liable. We think that proprietors disposing of their properties, in their present condition, on terms such as these, could hardly complain of confiscation. But should terms calculated on such principles as these not be considered equitable, there are precedents sufficient in the legal machinery at present in existence in the country, on whose model the value of the property which it might be deemed for Where land is required as a site for a jail or a poor-house, or for the construction of a railway the legislature have provided means, not only for getting possession of the land required, and for fixing the price to be paid, but have also provided, that in the transaction no interest shall be preju diced. Is the necessity less in the present instance, or the urgency less pressing? And if it is just, on public grounds, to take possession of land for such purposes, on equitable terms, how could it be considered unjust to follow the same course, when the very being of the country depends on it? If it has not been found impossible to protect vested and contingent interests in the one case, why should it not be possible to do so likewise in the other? It should not be forgotten, either, that in the one case a man may be forced to part with a portion of his house, his garden, or his demesne, on fair terms, no matter how inconvenient or annoying it might be to him; whilst in the latter case he could select what portion of his estate he would retain, and what portion he would part with, keeping those portions which are convenient and profitable, and parting with those which might be distant and expensive, or difficult to manage. It may be objected, what will become of mort gages and other incumbrances? Are they to be entirely overlooked in the arrangement? and how is the Government to raise funds to make these purchases which would possibly embrace a great part of the provinces of Connaught and Munster? As to the extent to which the charges on property would be restored to creditors, the proposi tion of Sir Robert Peel, we apprehend, would make no alteration. If property is permanently charged with 7s. 6d. in the £1 for poor-rate, it would bring in the market but five-eighths of the price it would bring if not so charged; and if this purchase-money were invested in the public funds, where it would remain liable to these charges in the same way that the property itself was, we are of opinion that the position of the incumbrancer would be improved-he would obtain the value of an estate, calculated on principles most favourable to the owner, as a security, in exchange for the estate itself, which, if not purchased in this way, would soon be altogether valueless. As to raising the necessary funds, it must be remembered that the Government would not be called upon to pay the principal of the purchasemoney, at least in the first instance. They would only have to guarantee the payment of its interest. This might be provided for at first by an income, or any other tax, and would be paid eventually out of the properties purchased themselves, which, as they were re-disposed of by the Commissioners, would gradually liquidate the whole debt. The Government would, in fact, take the properties, as it were, at a rent, which they would guarantee the payment of the property itself remaining the se• curity for the principal of the purchase-money, and which would be ultimately discharged by the re-sale of the estates. The great advantage of the proposition is, that it would prevent the enormous sums which must be the effects of refuse paint which had been spread expended for the relief of the poor, from being, as hitherto, utterly lost. The application of pauper labour to the estates-thus become public property -would render them more valuable in the market; every pauper who would become self-supporting would enhance their value; the returning-the very prospect of returning prosperity would have the same effect; and instead of an income or other tax, which would be perpetual, and whose tendency would be to increase, once entailed upon the country, the public might look forward to have, at the close of the transaction, not only prosperity restored to the country, but a considerable balance" that if a party contract for the use and occupacarried to the credit of the national account. In a former number (ante, page 147), we considered the question, whether any covenant in law arose from the relation of landlord and tenant, there being no contract under seal. We now propose to consider, whether a similar contract of demise creates any implied covenant as to the fitness of the land for any particular purpose. tion of land for a specified time, and at a specified rent, he is bound by that bargain, even though he took it for a particular purpose, and that purpose be not attained," is one not likely to be questioned. But if a person requiring land, or a house, furnished or unfurnished, say to another, "I want such for a particular purpose," naming it, and that other person agrees to give the thing required, and the thing purchased be wholly unfit for the intended purpose, it would appear contrary to the plainest principles of justice that the purchaser should be compelled to pay. An implied covenant that the thing sold is fit for its intended use, appears plainly to arise from the fact of the vendor's having agreed to give it for that purpose, and for this position the case of Smith v. Marable-a decision the validity of which cannot now be doubted--is, we submit, a direct authority. It is observable that the opinions of all the learned judges in Sutton v. Temple were based on the ground that the letting was of land in its then existing state, in which case the plaintiff was undoubtedly entitled to recover. The nature and substance of the contract would, however, seem to shew that it was a purchase of the pasturage, and nothing else; and unless there were other circumstances not reported, it would seem justice that the defendant should be as much entitled to have good eddish for his cattle, as he would, had he hired particular goods, be entitled to be furnished with the requisite articles. Izod v. Gorton (5 Bing. N. C. 501), the premises being held from year to year, the court These rules are equally applicable to the sale of decided that their being burned did not put an chattels real; but the courts, in the application of end to the tenancy, and that the tenant was therethem, have, in some instances, adopted a distinc-fore liable. In Arden v Pullen (10 M. & W. tion, the applicability of which, we confess, we do not comprehend, and which, if followed, will cause much hardship and inconvenience. In considering this question, the distinction we have already adverted to between covenants in law and implied covenants, must be borne in mind. In this case, no covenant in law, as to fitness, arises from the mere relation of landlord and tenant; but an implied covenant to that effect may, we think, sometimes be created by the acts of the contracting parties. The general rule respecting the purchase of chattels is, that where the purchaser himself has had an opportunity of inspecting the thing bought, and forming an opinion thereon, no implied warranty of fitness will arise, Olivant v. Bayley (5 Q. B. 288). But if the purchaser informs the vendor that the subject of the purchase is for a specified purpose, and for no other, as where a purchaser desired to be furnished with a rope adapted to raise pipes of wine from a cellar, (Brown v. Edgington, 2 M. & G. 279) it was held that there was an implied warranty on the part of the vendor that the rope furnished would suit that purpose. In the case of Smith v. Marables (11 M. & W. 5), the defendant took a furnished house at a watering place; the house was uninhabitable (being filled with bugs), and it was held that the lessee was not liable for the rent during the period for which he had contracted to take the premises. This case was the subject of much discussion in two very recent cases, Sutton v. Temple (12 M. & W. 64), and Harte v. Windsor (12 M. & W.68), and was upheld on the ground of its being a letting of a furnished house-not of real estate merely taken on the faith of its being fit for immediate habitation. The case of Sutton v. Temple was a lease of aftermath. The agreement was for "twenty-four acres of eddish (aftergrass) from the 8th of September to the 6th of April." The cattle died from In 327), the premises became uninhabitable for want of proper sewering, and the tenant, notwithstanding, was held to be liable during the period of his tenancy; and Collins v. Barrow (1 M. & Rob. 112), to the contrary, was denied to be law. In each of these cases, the premises were, at the time they were first occupied, fit for the purposes required of them; and it could never be successfully contended, that subsequent circumstances rendering them unfit for habitation, could relieve the tenant of his liability during the continuation of his term. In Windsor v. Harte (12 M. & W. 68), the demise was of a house and garden ground. The facts shew that no statement of the purpose for which they were required, nor inquiry as to the fitness of the premises for that purpose was made; it was a purchase of the premises in their then state; and, in accordance with the rule as stated These cases, we submit, are not authorities against the inference deducible from Smith v. Marables. There is no case to be found, except Sutton v. Temple, where the parties had contracted with an understanding as to the purpose for which the premises were taken, and which, ab initio, were found to be useless to the purchaser; all the cases were either where the purchase was of the land in its existing state, from which no covenant in law, and, a fortiori, no implied covenant arose ; or where, if there existed any covenant, express or implied, as to capability, the purchaser having gone into possession and raised no objection, had been compelled to leave from subsequent circumstances. The next question on this branch of the law, to which we propose to call the attention of our readers is, whether a tenant for years is liable for permissive waste, that is, more than the natural wear and tear arising from the use of the premises. This question, though on several occasions before the courts of law at Westminster, has never received any determination. In the most recent case on the subject, Harnett v. Maitland, (16 M. & W. 257, S. C. 16; L. Jou. 134, N. S. Ex.) this question was fully argued; the case however was determined on the pleadings, the declaration being held bad on demurrer, as it did not thereby appear whether the defendant was tenant for years or at will, and in the latter case he would not be liable. But the opinion of Parke, B. appears to be in favour of the affirmative; Martin v. Gilham (7 Ad. & E. 540, S. C. 2 Nev. & P. 568); was also decided upon, a defect in the declaration which charged the tenant with using the land in an "unhusbandlike manner;" which, in the opinion of the court, precluded the plaintiff from recovering for permissive waste. In Beale v. Sanders, (3 Bing. N.C. S.C. 5 Scott. 58), the court held, that a tenant under a void lease containing a covenant to repair, was a tenant from year to year, under the terms of the lease, and was liable for permissive waste. In Jones v. Hill, (7 Taunt. 332.), the court expressly declined giving any opinion; holding that a tenant from year to year was not bound to keep the premises precisely in the order he got them, that there should be some allowance for wear and tear, Gibson v. Wells, (1 N.R. 290), was the case of a tenantcy at will. Young v. Torriano, (6 Car & P. 12), is the only case where the non-liability of a tenant for years stated in direct terms. is Before the statutes of Gloucester and Marlebridge, no action of waste lay against a tenant for years (3 Inst. 302). In the cases in which this question was raised, it was contended that the liability thereby created was for commissive waste alone, the words being "qui facient vastum." Lord Coke (Litt. 53, a, chap. 7, Tenant for Years), after stating the several kinds of waste, voluntary, actual, and permissive, says, that "waste may be done in houses, by pulling or prostrating them, or by suffering the same to be uncovered, whereby the r ers or other timbers are rotted. The latter w ld seem to mean a permissive waste, and many of the examples given are per missive, as is shewn by the word "suffer," which here means to permit ; as where he says, "to suffer the pale to decay, whereby the deere is dispersed, is waste," (ib. 53, a); and it is waste to suffer a wall of the sea to be in decay, (ib. 53, a), instances of permissive waste. seem all to be In the case of Corbett v. Stonehouse (2 Roll. Ab, 816), it was adjudged, and affirmed on appeal, that an action of waste lies for permitting the walls of messuages to be in decay and unrepaired for default of daubing and plaistering. In Pomfret v. Ricroft (1 Saund. 323, d, note by Williams) and Greene v. Cole (2 Saund. 252, c, ed. 1845) the reporter gives a precedent of a declaration for permissive waste against a tenant for years. From these authorities, it would seem to be the better opinion, that an action for permissive waste will lie against a tenant for years. 2. 3. 4. sons. Parties to provide by the terms of such compromise the rights to certain patronage. Where compromise carried into effect, an instrument in writing containing terms of the same shall be lodged in the council office of Dublin castle. If Lord Lieutenant, &c. approve of compromise, par ties may obtain an order from Common Pleas to carry the same into effect. Incumbents to retain possession notwithstanding com 5. As to payment of expenses of compromise. Whereas by the 3 & 4 W. 4, c. 27-33, and by the 6 & 7 Vict. c. 54, it was further enacted, that after the 1st of January, 1844, the several clauses and enactments in the 'said first-mentioned act, relating to any right to present 'to any ecclesiastical benefice, should extend to Ireland, as fully as if the said clauses were thereby repeated, and it was by the said last-mentioned act further enacted, that the said last-mentioned act should not be prejudicial or ' available to or for any plaintiff or defendant in any action or suit already commenced, relating to any right to present to any ecclesiastical benefice in Ireland: and whereas in consequence of the said acts actions of quare impedit have been brought, and are now depending, for the purpose of determining the right of presentation to divers ecclesiastical benefices in Ireland, by persons whose right 'would have been barred by the provisions of the aforesaid acts: and whereas numerous actions and proceedings have 'been brought and are now pending against archbishops |