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55. That where a sale shall have been made without order of the court of any land or lease, and such sale shall not have been made bonâ fide for the discharge of incumbrances, the person who shall have so sold, whether he shall or shall not have received all or any part of the purchase money under order of the court, shall be and is hereby declared to be liable to pay or make to any person whose right or interest to or in such land or lease shall have been defeated or prejudicially affected by such sale such compensation as the person so selling would have been liable to pay or make in case the power given by this act had been a trust for the discharge of incumbrances affecting such land or lease, and, subject thereto, a trust for the benefit of the person whose right or interest shall have been so affected and of all other persons interested in such land or lease, and the court, upon suit for that purpose, shall order such compensation to be made, and where any sale shall have been made under this act without order of the court of any land or lease, and any notice required by this act shall have been withheld, or shall have been omitted to be given, or where any such sale shall have been made at an under-value by collusion with the purchaser or his solicitor or agent, then the person who shall have so sold under this act, whether he shall or shall not have received all or any part of the purchase money under the order of the court, and his solicitor or agent, and where such sale shall have been made at an under-value by collusion the purchaser, or his solicitor or agent if such solicitor or agent shall have been cognizant of such collusion, shall jointly and severally be liable to pay or make to any person whose right or interest to or in such land or lease shall have been defeated or prejudicially affected by such sale full compensation, and the court, upon suit for that purpose against all or any of the persons liable under this provision, shall order such compensation to be paid or made accordingly, and the liability of any defendant in any such suit as aforesaid to any pains or penalties for perjury in respect of any statement in any affidavit made under the provision herein contained shall not be allowed in the way of demurrer, plea, or refusal to answer or otherwise to protect such defendant from discovery in respect of the premises: pro vided always, that the provision for compensation herein contained shall not affect or abridge the right of any person to bring a suit in equity for the recovery of the land or lease on account of fraud against any person who shall have assisted in the commission of such fraud, or shall have taken such land with knowledge of the commission thereof.

56. That no payment towards discharge of what shall be due on any incumbrance, not being payment in full, shall prejudice or affect any right or remedy of the incumbrancer, otherwise than as against the land or lease sold freed and discharged from such incumbrance, unless so far as by the provisions of this act, or by any general rule or order or special rule or order of the Lord Chancellor of Ireland or of the court, is or shall be otherwise specially provided.

57. That where any incumbrancer shall be satisfied, by payment out of any monies arising from any sale under this act, and it shall appear that any person, or any land or estate other than the land or lease sold, was liable to such incumbrance or any part thereof, and that any such person or land or estate ought to discharge or contribute towards the discharge of such incumbrance or any part thereof in exoneration of the land or lease sold, the court, may order that any proceedings shall or may be instituted by such person, on such terms and in such manner as the court shall think fit, for recovering the money which ought to be so discharged or contributed in exoneration, and to direct that any such money shall be paid into the bank of Ireland in the name and with the privity and to the credit, or as the court shall direct, to be paid, applied, and dealt with in manner aforesaid, or as the court shall direct.

58. That no payment of or in respect of any incumbrance which shall be made under this act, whether upon or after a sale under order of the court, or upon or after a sale without the order of the court, or which shall be made for facilitating or otherwise in relation to any such sale, shall impair any right or equity of any persons out of whose estate such payment shall be made to be reimbursed or indemnified by any person or out of any other land or estate, except so

far as the court under any special circumstances shall order. 59. That where any lease subject to any incumbrance shall be proposed, or shall be ordered to be sold under the provisions of this act, the court, upon the application of any persons claiming to be owners of any estate in reversion in the same land, may direct or authorize and empower the master to include in his report approving a sale, and also to include in the sale, such estate in reversion, upon such terms as the court, or the master under the authority of the court, shall see fit; and in every such case the court, or the master, under the authority of the court, shall apportion the purchase money and the expenses as the court or master shall see fit; and the assurance to be made under this act shall or may include such estate in reversion so sold as aforesaid, if the master shall think fit.

60. That if any land or lease to be sold by order of the court under this act shall be subject to a lease or under-lease for years or lives comprising other land at an entire rent, the master, before proceeding to a sale, may apportion the rent between the land or lease to be sold and the remainder of the land subject to such rent, having first caused notice thereof to be given, as well to the tenant as to the person by whom such entire rent shall be payable, and to the person entitled to receive such entire rent, and any persons claiming an interest in the matter may claim to be heard before the master on the subject of such apportionment: provided no apportioment so made by the master shall be vitiated by any want of notice, or by the absence of any parties, unless the court, on the application of any person complaining of such apportionment, shall otherwise direct; and after such apportionment, and after such sale shall be completed, the owners of the reversion of the respective lands shall have the like remedies for the apportioned rents respectively as were subsisting for the entire rant before such apportionment; and all the covenants, conditions, and agreements of every lease or under-lease, except as to the amount of rent to be paid, shall, as regards the apportioned parts, remain in force in the same manner as they would have done in case no such apportionment had taken place.

61. That no person entitled to any incumbrance shall be bound to accept payment until such incumbrance shall be payable, or to accept at any time less than the full amount due thereon; and no person so entitled, who, according to the practice of the court or the rules of equity, shall be entitled to six months notice of payment, shall be bound to accept payment of his incumbrance without six months notice; but when such notice shall have been given no fresh notice shall be necessary if the money shall be paid within three months after the day fixed, nor shall any incumbrance, being a re-purchaseable annuity, be re-purchased until the time for re-purchase thereof shall have arrived; and every notice with respect to any incumbrance may be given in such form, and by and in the name of such person, and to such person, as the master or the court shall direct; and every such notice shall be binding and effectual to all intents and purposes.

62. That where any incumbrance included in an order for sale, or affecting any land or lease which shall be sold without the order of the court under this act, shall, for want of any notice or otherwise, not be payable, or where parties entitled to an incumbrance cannot be ascertained, or have not come in and claimed to be paid, the court may order such sum as it shall think fit to be set apart, and carried by the accountant-general to such credit, and to be applied as the court shall direct, in order to provide for any such incumbrance, and for costs and expenses relating thereto.

63. That pending any proceedings for a sale by order of the court, the court, on the application of any party interested as owner or incumbrancer, may appoint a receiver of any land or lease, which shall have been contracted or shall be desired to be sold, or any part thereof, and also to discharge such receiver at any time; and that every such receiver shall have all the same powers and authorities and be subject to the jurisdiction of the court, and to all subsisting rules and orders of the court for the regulation of receivers, in like manner, and as fully as any receiver appointed in a cause pending in the court is so subject;

and that every such receiver shall account before the master,
and shall pay his balance into the Bank of Ireland, in the
name, and with the privity, and to the credit aforesaid, to
be paid, applied, and dealt with as the court shall direct:
provided, that nothing in this act contained, shall empower
the court to appoint such receiver at the instance of an
incumbrancer who would not, if this this act had not passed,
be entitled to apply for the appointment of a receiver over THE NATURAL HISTORY of IRELAND.

tion, in the same manner as if the same had been originally
taken under the reference upon such petition.
(To be continued.)

such land or lease.

64. That in every case, in which the guardian of an infant would be authorised to do any act, or give any consent under this act, on behalf of such infant, if such infant shall bave no guardian, the court under this act, may appoint a guardian of such infant for the purpose of any proceedings under this act, and also to change such guardian from time to time.

65. That where any person, the committee of whose estate if he were idiot or lunatic, would be authorised to do any act or give any consent as aforesaid, on his behalf, shall be of unsound mind, or incapable of managing his affairs, but shall not have been found idiot or lunatic under an inquisition, or there shall be no committee of the estate, the court, on the application of any person on behalf, or as next friend of such person, or on the application of any person interested in any proceedings pending under this act, may appoint a guardian of such person, for the purpose of any such proceedings under this act, and also at any time, and from time to time to change such guardian.

66. That the costs and expenses of, and incident to every application for the appointment and change of any guardian under this act, shall be in the discretion of the court, and shall and may, if the court think fit, be introduced amongst the costs to be provided for under the general provisions of this act.

NEW BOOKS, PUBLISHED THIS SEASON:

By Wil. liam Thompson, Esq., Pres. Nat. Hist. and Phil. Soc. Belfast, 8vo. vol. 1. Birds, 434 pp., 16s.

2. EPISODES of INSECT LIFE. Crown. 8vo. 36 engravings, 161; coloured and bound in silk, 21s.

3. THE POETRY OF SCIENCE, or STUDIES OF THE PHYSI CAL PHENOMENA OF NATURE. By Robert Hunt. 8vo. 457 pp.

123.

4. POPULAR BRITISH ORNITHGLOGY. By P. H. Gosse, Esq. POPULAR FIELD BOTANY, and POPULAR BRITISH ENTOMO. LOGY. By M. E. Catlon. 2 vols. 16mo, coloured plates, each Is, 6d. London: Reeve, Benham and Reeve. Dublin: EDWARD J. MIL. LIKEN, 15, College-green.

IMPORTANT TO THE LEGAL PROFESSION.

W ILLIAM SHAW,

GENERAL PRINTER AND STATIONER,
8, BACHELOR'S WALK, DUBLIN,
Being about giving up business in Dublin, is determined to sell his valu.
able Stock of

BANKRUPT SCHEDULES,
Printed agreeably with the late Act of Parliament; together with all his
Stock of Account Books and Miscellaneous Stationery, at
COST PRICES.

and a variety of Draft, Letter, and Note Papers &c., also all the
Ruled and Plain Briefing Paper, Attested Copy. Chancery Ruled Cost,
NEW CHANCERY RENTAL FORMS,

Workmen's Accounts, Cattle Stock, Rental Books, and Paper.
The HOUSE will he LET to a respectable Tenant.

In the Matter of Richard IN Pursuance of the Order made in

Samuel Guinness,

Petitioner.

And in the Matter of the

Acts of 33rd Geo, 2nd
cap. 14, and 40th Geo,
3rd, cap. 22.

this Matter, bearing date the 3rd day of February, 1849, I hereby require all persons who claim to be creditors of the said Richard Samuel Guinness, and have not proved their demands before Samuel Vignolles and Edwd, Berwick, Esqrs., Trustees of the Estate of said Richard Samuel Guinness, and who intend to oppose the allowance of the Certificate of the said Richard S, Guinness as provided by said Acts, or desire to intervene under the said Order, to come in before me at my Chambers on the Inn's Quay, City of Dublin, on or before the 2nd day of April next, otherwise I will proceed in their ab. sence with the reference directed by the said Order. Dated this 16th February, 1849.

EDWARD LITTON. Dooner and McCay, Petitioner's Solicitors, 5, Kildare Street, Dublin,

ESTABLISHED 1845.

A Meeting of the Members of this Society will be held in their Rooms, No. 45, MOLESWORTH STREET, on FRIDAY EVENING, the 6th April. Chair to be taken at Eight o'Clock precisely.

07. That this act shall not authorize, nor be taken to authorize the presenting of any petition for sale by order of the court, in any case where an incumbrancer shall be in possession of the land subject to his incumbrance, unless with his consent, nor in any case where the first mortgagee shall have under his security a power of sale which has arisen and may be exercised, unless he shall make, or consent to the application, or shall, after being requested by the petitioner so to do, have refused, or for three months, have neglected, in the opinion of the court, to use diligence towards the exercise of such power of sale, nor in any case where, at the time of presenting such petition, any suit for foreclosure, or redemption, or sale of the incumbered land, which shall have been commenced before the first day of July LEGAL AND HISTORICAL DEBATING SOCIETY. one thousand eight hundred and forty-eight shall be pending, unless with the consent of the parties competent to consent to the dismissal or staying of the suit, and that every such consent shall be stated in the petition for confirming and carrying into effect a contract for sale as aforesaid; and that in case of such suit the court, may give directions to any parties for discontinuing or staying such suit, and respecting the costs thereof, or otherwise, and that pending any proceedings for a sale by order of the court under this act any owner or person claiming to be owner within the provisions of this act, or claiming by the act of such owner or person, or by act of law, pending any proceedings under this act, or any incumbrancer, may commence any proceed. ings at law or in equity for redemption, foreclosure, or sale, without the leave of the court, to be given under this act; and that in every case the court shall have full power to make or grant any order or injunction for staying any proceedings contrary to the provisions of this act, and for costs relative thereto provided always, that this act shall not authorize any sale or assignment of a lease contrary to the covenants and conditions of such lease.

:

68. That when any petition shall be presented for confirming and carrying into effect a contract for sale or for a sale under this act of any land or lease in respect of which any suit for foreclosure or redemption or sale shall have been pending, and shall be discontinued or stayed under this act, the court may order that all such proofs and debts and other proceedings, and such evidence as shall have been taken in the suit, may be adopted and used in the proceedings under such peti

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Oxford, and Cambridge, are eligible for admission.
Members who have changed their residences, or who have friends to
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JAMES F. WRIGHT, Esq. 11, Lower Ormond Quay.

AMES

JA

O'DRISCOLL,

PROFESSED TROWSERS MAKER,

9, ANGLESEA-STREET.

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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 JOHNSION MILLIKEN, residing at the same place, all being in the County of the

City of Dublin. Saturday, February 24, 1949.

Erish Jurist

No. 18.-VOL. I.

MARCH 3, 1849.

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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:

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THE case of the Queen v. Charles Gavan Duffy has been so protracted, so often before the public at distinct intervals of time, the points raised have been so numerous, and the law of criminal pleading so thoroughly sifted, that we think a succinct history of this extraordinary case may prove acceptable to our readers.

The proceedings have already been before four Commissions of Oyer and Terminer, four bills of indictment have been found, and the prisoner has been placed at the bar nearly forty different days. The questions of law discussed prior to the last Commission, will be found reported ante, p. 81. We purpose to continue our report of the subse- | quent proceedings almost immediately. In anticipation, however, of it, and as a resumé of the whole case, we now intend to give a brief narrative of the points of law raised and ruled at this prosecution, unprecedented in the annals of criminal law, and which, judging from the past, is yet far from being terminated.

The prisoner was committed on the 8th of July, 1848, and on the 8th of August following, a bill of indictment, for feloniously publishing, in the county of the city of Dublin, certain printings in the Nation newspaper, was preferred to, and found by the grand jury of the county of the city. The indictment was framed under the recent statute, 11 & 12 Vic. c. 12. The prisoner was not tried on this indictment-the trial being postponed by the crown, in consequence of the then recently discovered letter of the prisoner to W. S. O'Brien.

At the October Commission next following, a bill of the same nature was found by the grand jury of the county of Dublin, the venue being changed, under the provisions of the 6 Geo. 4, c. 51, by the crown, in order to avoid the question which had been raised in the Queen v. Martin, as

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to the interest of a burgess. The prisoner having been brought to the bar for arraignment, his counsel objected that this could not be done while he was in the custody of the sheriff of the city, and that the writs of habeas corpus sued out for the purpose of removal, could not be acted on, not having been issued ten days previous to the holding of the Commission for the county. The objection was ruled in the prisoner's favour. The case of the Queen v. Martin having, in the interim, been decided in favour of the crown, at the ensuing commission, in December, for the county of the city, the prisoner was, for the third time, indicted; and, the bills being found, it was moved on his behalf, that this indictment should be quashed, for this reason-that the venue of the indictment had been changed from the county to the city, and that under the provisions of the 9th section of the 6 Geo. 4, c. 51, it was enacted, "that after the delivery of the said notices, it shall not be lawful for any person to prefer any bill of indictment to any sessions of Oyer and Terminer, for any such county of a city." In fact, that the crown could not return again to the city, having once elected to proceed in the county; and that this migratory warfare was forbidden by the statute. To this it was answered by the crown, that the notices required to be served, by the 8th section, on persons who had entered into recognizances, and, by the 9th section, on the persons before whom the recognizances had been entered into, respectively to attend at, and to return the recognizance to the adjoining county, not having been given-that the clause of the 9th section relied upon by the prisoner did not apply. And this view of the case was adopted by the court.

Three questions were raised, independently of that on which the court decided. First, whether the crown was within the letter of the act, the word "prosecutor," in the enabling parts of the statute, being large enough to include the Attorney

General prosecuting for the Queen; and the word "person," in the disabling clause of the 9th section and in the 13th section being, it was contended, insufficient for that purpose. On this, the opinion of the court appears to have been, that the crown was within the enabling, and would not be bound by the disabling parts. Perrin, J. (Ir. Jur. p. 85), says, "Before the passing of this statute, it was not illegal to have a second bill found during the pendency of the first, and it would be difficult to hold, that where there is no express provision in the act, we should imply one restraining the crown from sending up a second bill in the place where the offence was committed." And Richards, B. (p. 86 of the same report), speaking of the 13th section, and of the use of the word "person," says, "That section was plainly intended to apply to private prosecutors only, but it would be too much to hold from that, that none of the preceding enabling sections of the act includes the crown."

Secondly, it was argued, that though the crown was not included within the letter of the act, yet, having taken advantage of it, it became bound by all its provisions. On this branch of the case, the court does not appear to have come to any final determination, their opinion (as we understand it) being, that the crown could scarcely be said to have taken advantage of the provisions of the act; that no notices having been served, the election to proceed in the new venue was not complete. The inclination of the mind of the court was apparently that the crown should not be bound; and the case of the Attorney-General v. Wilson (Jebb, C. C., Reserved, 313) would appear to support this view. Thirdly, whether the Attorney-General could in any case be bound by the restrictive provisions of the 9th section; and on this question the court were of opinion that, as there were no express words to bind the crown, they were not to be implied. But Richards, B., at p. 87, says, "Supposing the 9th section to bear the construction contended for, on the part of the defendant, in regard to cases coming plainly within its operation, it may, I apprehend, admit of some question-I will say, of a very grave and serious question-whether the court would not feel itself authorised to apply the principle to be extracted from such a provision as that to crown prosecutions. I mean prosecutions carried on by the Attorney-General, as well as to all other cases where the Attorney-General had availed himself of the general provisions of the statute." He then subsequently guards himself from being considered to have expressed an opinion one way or the other.

These points, after much discussion and delay, having been disposed of, the prisoner, being called upon to answer the indictment, pleaded in abatement that two of the grand jurors who found the bills were not either inhabitants of the city, or resident therein, or freemen thereof, or burgesses, or seized or possessed of, or entitled to, any lands, tenements, or hereditaments within the city for any estate of freehold or less estate, or liable to be rated for municipal and other taxes. The court held that it was not necessary for grand jurors to be freeholders, Anonymous, (Russell & Ry. C. C. 177,) that it was sufficient if they were good and

lawful men of the place, probi et legales homines,
which they might well be, and yet not residents,
R. v. Adland, (4 B. & C. 772). And, that consist
ently with the averments in the plea, the jurors
might be principal merchants of the city, directors
or shareholders in a bank, qualifications which
would entitle them to act as grand jurors of the city,
though non-resident.
Perrin, J., was of opinion

that the 5 & 6 W. 4, c. 91, was applicable to grand
jurors at the Commission of Oyer and Terminer,
as well as to juries for the trial of issues, and grand
juries at sessions, to which it had been contended
the act only applied. That this act consolidated
the law, respecting jurors, as it previously existed.
and that as the plea did not negative the qualifica
tions given by this act it was bad.

Still fertile in points, the counsel for the prisoner demurred to the indictment.

We are not aware of any case in which the law of criminal pleading has received such consideration, at least no case of felony. This has arisen principally from the serious doubts which existed, whether the prosecutor could, in the event of judg ment being in his favour, demand final judgment, and the consequent dislike of those entrusted with a prisoner's defence to incur the responsibility, and run the hazard, of risking the liberty, perhaps the life, of their client on the result of a point of law. The course taken was a bold one, but perfectly justifiable, this being a case arising on a new statute.

The arguments and judgments will well repay the lawyer's perusal, and will be found useful for civil as well as criminal pleading, involving a nice consideration of the doctrine of innuendos or explanatory averments, as applicable to the law of libel or slander.

The indictment preferred at the December Com mission contained six counts. The first and third set out the portions of the publication relied upon by the crown, and in the first count charged the prisoner with the publication of certain articles with the intent to "depose the Queen," and in the third count with the intent "to levy war." Three objections were taken to these counts, first, that the writings, by which the prisoner was alleged to have expressed his intention, were not set out with sufficient certainty; secondly, that they severally charged distinct felonies in the same indictment in a manner not allowed by law, and thirdly, that the printings and writings were not accompanied with the averments or innuendos necessary to affix to them the stamp of illegality necessary to bring them

within the act.

All these objections the court overruled.

The second and fourth counts set out the same printings and writings as the first and third, but stated them in the second count to be distinct overt acts evidencing the intention to depose the Queen, and in the fourth count as evidencing the intention to levy war.

To these counts, the objections made to the first and third were also raised, and, in addition, it was objected that they were repugnant and inconsistent, and that the publications were improperly laid as overt acts.

The court decided that these counts were bad

for repugnancy as to all but the first overt act, inasmuch as the first overt act being stated as evidencing an intention to do an act on the 3d of June, a subsequent overt act on the 17th could not be said to evidence the same intention as that on the 3d. To express the same idea in untechnical language, and by an illustration-it would be inconsistent and repugnant to state that the prisoner raised his arm on the 3d of June with the intention of striking the Queen, and on the 17th again raised his arm to strike her on the 3rd. There was but one felony charged, and it was impossible that a subsequent overt act could be said to relate back to that which had been charged to have been previously committed, and on the same ground the court rejected every overt act subsequent to that laid on the 3d of June. They, however, decided that publications might properly be laid as overt

acts.

The fifth and sixth counts were general, not setting out any of the printings or writings charged in the previous counts, merely stating in the former that the prisoner on the several days therein mentioned expressed his intention to depose the Queen by divers overt acts of publication, and in the latter count expressed his intention, by the same means, to levy war against her. These counts were objected to for not setting out the contents of the overt acts, and that they were also bad for repugnancy. On the first objection the court decided that the contents of the publications charged as overt acts need not be stated, but that the same arguments, on the question of repugnancy, which applied to the second and fourth counts, applied to these likewise, that is, that the demurrer should be allowed as to all the overt acts except the first.

Although this part of the demurrer was allowed, yet it will be observed that it only applied to part of the counts, therefore all the first and third counts were good, so, likewise, were the first overt acts laid in the second, fourth, fifth, and sixth counts. The advantage supposed to have been gained by the prisoner was this, that in the last mentioned counts no evidence of overt acts could be given subsequently to the 3d of June; but this advantage appears to us not a very substantial one, as all the publications could be given in evidence under the counts that remained untouched.

At the termination of the judgment on the demurrer, the Attorney-General asked for final judgment; but the court said, that was a question of much difficulty, one upon which they did not then wish to give any opinion, and suggested three courses which might be adopted to bring the question before the court above. First, to reserve a case for the opinion of the twelve judges, as had been the practice before the passing of the 11 & 12 Vic.c.78. Secondly, to reserve a case for the opinion of the Court of Criminal appeal, under the provisions of that statute; and, thirdly, for the Attorney-General to remove the proceedings by certiorari.

The Attorney-General, on a subsequent day, declined to adopt any of the courses suggested, and pressed for final judgment. The court directed the case, on this point, to be further argued, and,

finally, gave judgment of respondeat ouster in favour of the prisoner.

These various proceedings were not terminated until after the first day of Hilary Term, when the judges declined then to try the case, and adjourned it to the next Commission of Oyer and Terminer. At the ensuing Commission in February, the Attorney-General preferred an entirely new bill of indictment to the city grand jury, which being found, the prisoner on the 7th of that month was brought to the bar to answer the matter of the last indictment. The prisoner's counsel moved that the court should direct that no proceeding be taken on this indictment until the prisoner be tried on the former one, or it should be otherwise disposed of. This application the court refused.

Then the prisoner pleaded in abatement, that one of the grand jurors who found the bill resided at a place outside the city boundary, as it existed before the passing of the 3 & 4 Vic. c. 109, but within the borough as defined by that act, and it was contended, first, that the city boundaries were not altered for the purposes of the Court of Commission, the terms of the act being applicable to borough courts alone, which it was argued that court was not; and secondly, that as the Court of Commission sat by virtue of a commission of the 1st of Vic., that the jurisdiction of the court must be taken to be co-extensive with the limits as they existed at that time. The court were of opinion that even if their own opinion had been otherwise, that they could not set it in opposition to the solemn judgment of the superior courts, in the cases of the Queen v. the Inhabitants of St. George, (8 Ir. Law Rep. 23); Lessee Barber v. Evans, (10 Ir. L. Rep. 480); and that the second point was not open for argument on the record.

On Saturday, February the 10th, the plea in abatement being overruled, the prisoner demurred to the indictment.

The indictment contained four counts. The first two set out the printings and writings as publications, and charged that the prisoner did, on the 3d of June, publish certain printings, stating the intent in the first count to be "to depose," and in the second to "levy war," and that he did on the 17th of June further express the same compassing by publications on that day, and so on the several subsequent days of publication. The third and fourth counts were general, not setting out the publications, and charged them as overt acts, that the prisoner did on the 3d day of June intend to depose, and that intention he expressed on the said 3d of June, by divers overt acts and deeds, and, in order to fulfil that intention, he published on the 3d of June, and further to fulfil, &c. he published on the 17th of June, and so through the subsequent days of publication. The fourth count was similar, except that the intention averred was to levy war.

The objections raised on the argument of the demurrer were, that all the counts were uncertain, double, and repugnant; and to the third and fourth counts it was further objected, first, that there was no distinct statement of any overt act, and that a publication was not an overt act within the meaning of the treason-felony statute. Secondly, that

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