RETURNS MOVED FOR. (Hansard, 10 February 1859)

§ MR. GREER
said, he wished to move for a Return of a copy of a judgment of the Master of the Rolls in Ireland, delivered on the 4th of November last, in the case of the Rev. Dr. O'Fay against Major Burke, on a petition for specific performance of an agreement for a lease; and for a copy of the judgment of the Lord Chancellor and the Lord Justice of Appeal, confirming the Master of the Rolls' decree.

LORD NAAS
said, he believed thsre was no official record kept of the words used by the Judges of those Courts in giving their decisions, and therefore no means of giving the Return moved by the hon. Gentleman. But, in reference to the case itself, he had that morning received two letters, which he wished to make public as soon as possible, in justice to an absent man. The case between the Rev. Dr. O'Fay and Major Burke had attracted a good deal of attention, and the action was brought by a Roman Catholic clergyman against Major Burke, for the purpose of endeavouring to enforce an alleged agreement for a lease, said to have been made between the plaintiff and the father of Major Burke. It was tried before the Assistant Barrister, who decided in favour of the defendant. An appeal was then brought before the Master of the Rolls, and subsequently to the Court of Appeal, by both of which Courts the decision below 230 was confirmed. In order to show the opinion entertained by the Lord Chancellor on the case, I will read to the House an extract from his judgment, in which his Lordship made use of the following remarkable observations:— It was to be regretted that before the notice to quit was served, the case was not fairly submitted to Major Burke, who, it did not appear, was made aware before the civil bill proceedings of his father's letter or the other correspondence. He (the Lord Chancellor) could not believe, if the matter had been fairly laid before Major Burke, a British officer and a gentleman, that he would be indifferent to the considerations of good faith and honourable feeling. He thought the opportunity still existed for an amicable arrangement, and he hoped he was not overstepping his duty in suggesting to Major Burke that, under the circumstances, he would best maintain the character of a British officer, the cause of justice, and also the rights of property, by making such an arrangement as to the possession of the farm as would give the petitioner the benefit of the expenditure he had honestly made, with the reasonable expectation of being sufficiently secured. However, in all cases where parties dealt solely on good faith, which it was most desirable should be observed between landlord and tenant, a Court of Equity could not interpose. In consequence of these observations, and of representations made to Major Burke by his friends, that gallant officer gave instructions to his solicitor to write to the reverend gentleman, offering to make to him every reparation in his power. The following letter, which he (Lord Naas) would read, in justice to Major Burke, was forwarded by his solicitor to Dr. O'Fay:— 65, Upper Gardiner Street, Dublin, Feb. 2, 1859. 'O'FAY v. BURKE.' Rev. Sir—The decision of the Court of Appeal in the cause petition instituted by you against Major Burke having been communicated to him, I am authorized to inform you that it is not his intention to act thereon, or to disturb you in the possession of the lands in question. Although the result has established Major Burke's rights to the fullest extent originally claimed by him, he has no desire to take any further steps in the matter, and he will therefore permit you to remain in possession during your life of the house and farm at the same rent as heretofore, upon your executing a formal agreement to that effect. I am further to inform you that it is not Major Burke's intention to require payment from you of the costs of the trial in Galway, amounting to £56 15s. 1d., and for which an execution was had against you. I am, Rev. Sir, Your most obedient servant, THOMAS DENNIS O'FARRELL. The Rev. Michael Jos. O'Fay, Rue Castle, Craughwell. This, he thought, under the circumstances, was as much as Major Burke could be ex- 231 petted to do, and he was sorry the letter was not received in the spirit it deserved, as appeared from the rev. gentleman's reply:— Rue Castle, Feb. 4. Sir—In reply to yours of the 2nd instant, I beg to say that both you and your gallant Sepoy Major, aided and assisted by the unjust laws of my poor country, have already deeply wounded me to my heart's core. Nevertheless, I feel, thank God, under better treatment, that I am now convalescent, and therefore I beg to decline your salvo, as it comes too late. I have the honour to be, Sir, Your obedient servant, MICHAEL JOSEPH O'FAY. Thomas D. O'Farrell, Esq., Loughrea. Major Burke is now absent from this country. He had thought it necessary to make these observations, in justice to a gentleman whose conduct had been severely commented on, who he knew to be an honourable and humane man, and he trusted that the House would be satisfied that he had done all he could do to make due reparation for any injury that he unintentionally may have inflcted on Mr. O'Fay.

§ MR. GREER
said, he had no personal acquaintance with any of the parties concerned in the matter. He had received no information as to the merits of the case, except that which he had just heard, and that which he had obtained from the newspapers. But the facts, he thought, were calculated, if properly presented to the Members of that House, to put them in possession of the circumstances of one of a class of cases that occasionally occurred in Ireland, and enable them the better to judge of the relations existing between landlord and tenant in that country. They would then be more competent to determine upon what measures would be necessary to improve those relations. It was for that reason he wished to place on record the opinions of three eminent Judges as to the state of the law in that country. If no official record of the words of the Judges' decisions were kept, he apprehended it was the practice of the Judges in important cases to make notes of the judgments they were about to deliver, and to read those notes as their judgments. With regard to the letter of Major Burke or his solicitor, read by the noble Lord, he was willing to admit that it treated the matter in a very handsome manner, by offering to make reparation for any wrong that had been inflicted, and he deeply regretted that it had not been received in a proper spirit. As, however, he did not bring forward this Motion with the view of casting blame 232 upon any party, that letter did not alter the state of the case further than this, that if the return were ordered, he should have no objection to the letter being appended to it. He trusted, therefore, that there would be no objection to the production of the documents referred to.

THE SOLICITOR GENERAL
said, he would submit to the House whether any good object could be effected by the House making an order for the transmission by the Judges of copies of the judgments they had delivered in the matter in question. He did not know what the practice was in Ireland, but in this country very many judgments were pronounced without any notes whatever. Generally speaking, there were shorthand writers engaged in all important cases, who took down accurately what the learned Judges said, and he had no doubt if the hon. Gentleman were to write to the parties interested in the case they could supply him from that source with full information on the subject. He would put it to the House, therefore, whether it was consistent with their usual practice to issue an order to one of Her Majesty's Judges to transmit a copy of judgment which they did not know had any existence whatever.

§ MR. GREER
said, he might refer to the case of "Stubbes v. Hornsby," in 1853, relating to the Drainage Act, in which an order similar to that for which he moved had been made. He believed, if the order were issued, it would not be considered an inoperative order.

§ MR. BAGWELL
observed, that the hon. Gentleman having made his statement, it would perhaps be more conducive to the public interests to withdraw the Motion, particularly as the Attorney General for Ireland was about bringing in a Bill on the subject of the relation of landlord and tenant in that country.

§ MR. GREER
said, he would withdraw his Motion.