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Erish Jarist

No. 46.- Vol. I.
SEPTEMBER 15, 1849.

PRICE

SPer Annum, £! 10s.

Single Number, Ud. The Names of the Gentlemen who favour THE IBISH Jurist with Reports in the several Courts of

Law and Equity in Ireland, are as follows
ROBERT LONG, Esq.,

'1 Court of Chancery, in

Court of Exchequer

Joun BLACKHAM, Esq., and and clading Bankruptcy 3 John Pitt Kennedy, Esq., Bar.

Chamber.....

A. HICKEY, Esq., Barristers-at.

Law. Appeals........... risters-at-Law.

Queen's Bench, includ- ( FLORENCE MCARTHY, Esq., and WILLIAN BURKE, Esq., and

ing Civil Bill and Re- {SAMUEL V. Peer, Esq., Rolls Court.........

WILLIAM John DUNDAS, Esq., gistry Appeals...... Barristers-at-Law.
Barristers-at-Law.

Exchequer of Pleas, in. S Caas. H. HEMPHILL, Esq., and CHARLES HARE HEMPHILL, Esq. cluding Manor Court WILLIAM HICKSON, Esq., Bar. and

risters-at-Law. Equity Exchequer.......

WILLIAM HICKSON, Esq., Bar-
risters-at Law.

Common Pleas ....

| Robert Griffin, Esq. and W. G. { -.

S ROBERT GRIFFIN, Esq. and W.G. Bankrupt Court... ROBERT GRIFFIN, Esq. and W.G.

and registry appealist 2

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DUBLIN, SEPTEMBER 15, 1849.

French and Scotch systems before he pronounces so unhesitatingly in their favour. It is a singular feature in our criminal jurisprudence, that in all

questions of fact, the verdict of a jury is irreverOUR columus of last week and this contain the sible, though the right to the possession of a single first parts of a Digest of all the cases reported in acre of land may be untested frequently; but, when our Irish Courts of Law since the commencement once the verdict of guilty has been recorded, there of the Irish Law Reports. It bas been a work of is no appeal. Does not this circunstance afford a very considerable labour, but, being so very desi- powerful argument against any change in our prerable

, we trust that it will prove acceptable to sent system—and prove that the evidence should our professional brethren.

be so clear, as to convince even the most obtuse, The multiplication of cases, without any attempt of the gu

of the guilt of the accused ? The individual suf. at their classification, is a source of great labour to ferings which our correspondent has endured, we the industrious lawyer, and not calculated to be regret for his sake, and we quite agree with him useful

, except they be susceptible of arrangement. that it is a barbarous notion to starve a jury into a One circumstance that has much impeded our pro

verdict: on this point, a change is very desirable. gress, has arisen from the difficulty of finding a

The instances of misconduct in English juries, to proper heading under which to place cases of very

which he refers, he is probably not aware are difficult definition. We have, however, we hope, punishable. Juries should not be starved; and reduced ehaos into order; and will present to the they should, if guilty of misconduct, be punished. Irish Bar a work, which has not been attempted so long as the great bulk of the people of England since Mr. Archer's Digest. Next year we shall acquiesce in requiring unanimity, we think the existgive a Digest of all our reported cases in Courts ing law should be suffered to remain. of Equity; and thus, having brought down our

To the Editor of the Irish Jurist, compilation to the period of publication, each volume will contain the Digest of the cases re

SIR, ported in Ireland during the then current year;

Though I am no lawyer, your courtesy will, and we shall then have more than redeemed the perhaps, allow me the privilege of occupying a page promise which we made to our readers, in our first or two in the Irish Jurist, when I inform you that I number, of presenting them with an Index of the have had no little experience in some of the details cases of each year.

of law, and more especially in the working of our jury system. It has been my niisfortune to have been locked up in cold winter nights, on three or

four occasions, and to have been frequently associWe cannot refuse admission to the following letterated with men whose avowed partizanship, or ob-We are by no means so enamoured of our jury stinacy in unintentional error, has baffled the ends system as our correspondent appears to suppose ; of justice, and occasioned extreme annoyance to we should, however, suggest to him, that he should those of the jury who have formed contrary judgsudy a little more minutely the details of the I ments.

Assuming, Sir, that you will permit one of your of a lock-up, or the fancied discredit of an absolute lay readers to address to you a few observations on disagreement. I can vouch for the fact that verdicts a point which involves no legal technicalities, or in England have been returned by a jury who have intricate embarrassments, and only relates to a mat- allowed them to be decided by the toss-up of a shil

. ter which unprofessional men like myself may be ling. I would put it to the calm deliberation of any supposed to understand, and in which they have a person familiar with the management of juries in personal concern, I shall, as briefly as possible, cases of a party nature, whether the grand considestate my point. It is this :

ration be not, “Who are on the jury?" "A. B.C. Does the English law, which requires the entire are good men and true, but D. would rather cher unanimity of juries in giving verdicts, effect the the leather of his boots for Inncheon, dinner, and objects of justice so surely as the jury laws of Scot- supper during a week than find the traverser guilty. land or of France ? I think, Sir, that it does not. Now, Sir, I respectfully urge that no ground

Perhaps it may not be superfluous for me to as- should be left for such observations; and I say far. Bume in limine that I am not an advocate for haz- ther that society ought not to be satisfied with a ardous or crotchetty innovations; our judicial system system which involves at least the possibility of has worked admirably in its grand movements; the maneuvering in order to select the individuals who main pivots upon which it revolves are perfect, and are to compose a jury. Such manæuvering arises the aphorism-Nolumus leges Angliæ mutari—is from the law which requires unanimity; where there revered by me, but with qualification as to details; is maneuvering the fountain of justice is corrupted. these in innumerable instances, require remodifica- No society ought to be content with the results of tion. Prejudice alone can blind thinking men, so trial by jury unless all men who are legally and that they cannot perceive that the ever progressive morally eligible to act as jurors be called to disstate of society requires continued modification of charge their function according to the exact order the laws which are to regulate its concordant move of their names on the lists, without any selection ments. Dare I hint to you, Sir, the heretical in. whatever, but subject to challenge. At present

, even sinuation—as you may indignantly deem it—that the most upright and impartial sheriff will be an ob. the working of that great fundamental law of the ject of confidence to one party, and of suspicion to British constitution, trial by jury, is not perfect in the other, where the issue of the trial materially its organization; that it wants a little oiling, and a affects the interests, or agitates the passions of the little screwing, to make it move more effectively? antagonist sides. What! you will possibly exclaim, Touch the palla- But why, it may be said, should a change be dium under which we have maintained our liberty necessary now in the jury system, when we have, for nine centuries.

in the classes from which jurors are usually chosen, Bear with me a moment. I am still smarting in more independence of mind than was to be found imagination from the long wearisome sittings I have in former times, when our forefathers were satisfied undergone in jury rooms; craving from the hunger with the system? I might, perhaps reply, that the I have endured; suffering-sympathetically—from modern spirit of independence has become, in many the nausea, the misery of sleeplessness, the cold, instances, egotistical obstinacy, or an independence noise, senseless babbling, and angry disputation of the opinion of judge or brother jurors. A juror I have suffered during an imprisonment of twenty- feels that no judge can compel him to agree with four hours, and all this without the satisfaction of his fellows in a verdict; there is now no Jefferies recording an honest verdict, though eleven out of nor Scroggs to imprison him for contumacy, or to twelve of the jury were decidedly

agreed in opinion! gratify his rancour or malignity, or subserve the This is not an extreme case. The records of Irish purposes of an arbitrary sovereign; there is no rod trials furnish several instances in which justice has in terrorem over him—he is free to think and aet been frustrated by the determination of one juror- as he chooses ; he enjoys real liberty, and though unencumbered by conscience, or, it may be, with he cannot stifle the expression of public opinion if out understanding—who will not permit a just ver- he be known wilfully to frustrate the ends of jusdict to be returned. There have been jurors with- tice by his perverseness, or want of honests or of out regard for the moral obligation of an oath, and courage, he may snap his fingers at the judge's there will be such.

charge, his fellow-jurors, and the public, and say It may be said, that though cases occur in Ireland sic volo with sovereign contempt for them all

. But in which jurors occasionally forswear themselves, does this independence exist in fact ? Are jurors or delude themselves through some quackery of con. never slaves to influence on the one hand, nor to science, and illegitimate compromise between a cor- fear on the other ? Have the terms pig-headed, rect judgment on the one side and the tendencies of perverse, obstinate, boot-eater, become obsolete? party on the other, no such abuse of the jury system Are our jurors so far advanced in intellect

, that a occurs in England. This I deny to be fact. I know modification of the jury laws, which might have that the trial by jury is not unfrequently nullified in been desirable in more uneducated and arbitrary England by the pig-headedness of a single juror- ages is not essential now? Methinks they order rarely indeed from political or sectarian influences, these things better in France and in Scotland

. la but from that deficiency of intellect and obliquity neither country is unanimity required. The esof moral perception by which jurymen, like other sassin, murderer, or slanderer, does not there evade men, are sometimes distinguished. I know that a the penalty of his crime because a dissentient voice minority of three or four out of twelve have per- may cry out in his favour, even though his guilt suaded the majority to concur in a verdict contrary may be clear as the noon day. to their own opinions, in order to avoid the tedium I have not the life of Sir Samuel Romilly within

in opi

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my reach, but I think he was favourable to the 1286. Will you state what that calculation is ? French jury system. If I be correct in my recol. There are 9,442 upon a rental of £159,000. Then lection, I have no mean authority on my side.

must be determined by the rule of three, how many From our experience of human nature, it is too will be upon a million rental. much to expect that twelve men will

agree

1287. You have already mentioned that you have nion even on any ordinary point—how much less no very satisfactory means of testing the fitness of reasonable is it to expect their unanimity in cases those persons to be receivers

. How does that difficulty of a complicated character, and in which various arise ?-In the first place, when it is referred to me collateral interests may be involved.

Is it not to appoint a receiver, I have no possible means of wiser to calculate for and provide against the pro- knowing whether the individual proposed is a probabilities of diversity of opinion among thinking per person or not, for this reason, that perhaps he and free men ? I would remind you of the wise lives in the county of Kerry, and he is the only perreflection of the Einperor Charles V., after his long son proposed. If one says to the parties, “There experience of the complicated workings of the human is a very good receiver on such and such an estate mind, and the various springs by which it is influ- near,” the answer which is invariably given to me is, enced—“ It is not wonderful that men cannot be that such a person will not now undertake a recei. induced to think and act in harmony together, when vership, such is the disadvantageous position in I cannot get even these two watches to keep the which a receiver is placed; and it becomes impossame time precisely.". If the catalogue could be sible in that way to have any selection. placed before us, of those criminals who have been 1288. Do you think that that difficulty arises from let loose upon society from want of unanimity the impossibility of getting proper persons to take among the juries before whom they were tried, and those small receiverships, or does it arise from your if a table could also be laid before us, showing the want of power to ascertain who are proper persons ? precautions taken (unavoidably in some cases under -No; I think it arises more from the difficulty of the existing system) by sheriffs to exclude men getting a proper person, than the want of power supwhose single voices would have rendered trials posing he existed, because we certainly have the nugatory, I feel satisfied that the modification of power of appointing whomever we think fittest. the jury law, to which I have solicited your atten- 1289. In the case of receivers appointed over tion, would not be considered undesirable.

large properties have you the means of obtaining fit I have the honour to be,

persons and of ascertaining their fitness ?- I do not Your obedient Servant,

think more so. It is a matter which, in fact, is M. D.

very much left to the nomination of the parties interested.

1291. What power would you require for the HOUSE OF COMMONS.

purpose of satisfactorily discharging that duty ?-I RECEIVER COMMITTEE.

do not think I should require any additional power William Tighe Hamilton, Esq.-June 29.

if all the rules and regulations with respect to the

management of estates and the mode of accounting (Continued from p. 344.)

were of an unexceptionable character, because I 1284. Sir J. Graham.] Is that one-nineteenth think in that case there would be a great number of of the area or one-nineteenth of the rental ?-One- perfectly competent persons willing to undertake nineteenth of the area. The way I make it out the receivership, and one would have a choice, inis this: the modern poor-law valuation is 13 mil- stead of being confined to the party most interested lions ; but that is not the sum to be compared with often in exhausting the estate. a million of rental, otherwise it would be one-thir- 1292. In what way would you suppose that the teenth of the whole country. What is called the evil with regard to the difficulty of getting proper old valuation of Ireland is generally considered 20 persons to be receivers would be most effectually millions, and that is a valuation taken at the same met?-I see no mode of doing it, except by having

time and under the same circumstances under which certain fixed ascertained persons as standing recei. 2: these rents which constitute this rental under the vers, who should be authorised to act in every case

Court of Chancery were fixed; therefore the million where a receiver was to be appointed.

rental, as it exists now, is to be compared with the 1293. In whom would you vest the selection of het twenty millions. Then inasmuch as demesne lands, those ascertained persons ?-I should vest it unques

for which receivers are seldom appointed, and lands tionably in the Chancellor. for which fines have been paid for leases, must be 1294. Supposing you could get fixed ascertained deducted from that, so as to make the comparison persons selected by the Chancellor to discharge the a fair one, and which we may take at about one mil- duty under that system, why could not they be had lion, the receiver rental would make about one-nine- now in the case of large estates? I think there is a teenth of the whole country.

very strong feeling growing out of the risks and lia1285. Chairman.) Have you any notion of the bilities to which receivers are subject, and that till number of tenants under the Court?

I could not something is done to make the system more regular say as to the million of rental, but I can give it to and more satisfactory few persons will undertake rethe Committee as nearly as possible from 300 es-ceivership. tates, which I have examined, and then by the rule

1295. Is not it in the power of the Court, by arof three one might make a very near approximation ranging the matter of the liability of receivers, so to the whole,

to adjust its rules with regard to receivers as to get rid of the objection ?- It is such an immense subject

Robert Shaw,

cree of her Majesty's High Court of Chancery in Ireland, made in this cause, bearing date the 24th day of June, 1882, I the late Richard Crollo Labarte, of Clonmel, in the Conaty & Tap.

E. LITTON,

£1 6s.

And ramifies into so many directions, and into other upon the present system, but I should rather look subjects upon which legislatiou would be necessary, at a more official system of accounting; for instance

, that I do not think any Chancellor could carry out the system of accounting that is practised in the Ex. the sweeping reform that is necessary, except with cise and the Customs, and wherever the revenue is the sanction and under the direction of the Legisla- received, whieh is done by a very simple official proture.

cess not by the present cuinbrous and expensive legal 1296. What specific interference on the part of machinery of a court of justice. the Legislature do you consider would be proper

(To be continued.) and necessary in order to effect the reform that is required ?-— With respect to the receivers themselves

IN CHANCERY.

Robert Malcomson, and I should say that there ought to be a power in the

Plaintiff.. PURSUANT to the De. Chancellor to consolidate the existing receiverships

Richard Burgess Labarte, (a minor.)

Elizabeth Usher Labarte, and Anne into districts, so that ultimately without doing any Elizabeth I abarte, Amelia Usher

Labarte, Edward Usher Labarte, violence to vested rights and the interests of parties and Beverley V»her Labarte, (min.

hereby require al Credito di

ors,) by the said Elizabcth Usher more or less dependant upon their receiverships for

Labarte,

Defendants. their income and support, you might approximate ing Debts, Charges, and Incumbrances affecting all that are there the

persons ha in a very few years to the still more perfect system

Lands of Bally william, in the County of Cork, and Thomastown, whes.

wise Ballythomas. Caraclough, otherwise Ballyclough, Knockragrana, of having a receiver for every county, or part of a

lea, situate in the County of Waterford, in the pleadings in this case county, as an efficient public officer.

mentioned, to come in before me, at my Chambers on the late Quay 129.. Is not there great difficulty in this way, that

that Dublin, on Monday the first day of October exh, and proceed to prerie

the same, otherwise they will be precluded the benefit of said decree. causes now in the Court may be passing out of it, Dated this sth day of September, 1819, and that the estates under the Court are constantly

For MASTER MURPHY,

Matthew Anderson, Solicitor for the Plaintiffs, No. 2, Ians Quay, Dublin varying; is not there therefore great difficulty in appointing a permament officer of that kind ?--All

JUST PUBLISHED, experience is against a great deal of shifting, because

ADDISON ON THE LAW OF CONTRACTS when once an estate goes into the Court of Chancery and a receiver is appointed over it, it very slowly A TREATISE on the Law of CONTRACTS, and Rights

and Liabilities ex Contractor. By C. G. ADDISON, Exq, die the leaves it. But that consideration belongs to every Inner Temple, Barrister-at-Law, Second Edition, 2 vols. 8vo. price £1 166 system of receivers.

RUSSELL ON ARBITRATION. 1298. Do you think it is right to provide for the A TREATRS And the theaw submissions and awarders wat continuance of that system by having a permanent Appendix of Forms, and of the Statutes relating to Arbitration. B staff under the supposition that the estates are to

FRANCIS RUSSELL, Esq., M.A., Barrister-at. Law. I wol Stre, bei remain under the Court of Chancery? - Clearly so,

BAYLEY ON BILLS OF EXCHANGE. because there will always be a large quantity under | SUMMARY of the Law of Bills of Exchange

, Cash Bila the Court.

Edition, by G. W. 'DOWDESWELL, Barrister-at-Lax. vol. Svo

. 1302. Do you think that there might be substantial improvements made in the inode of receivers

BURGE ON THE LAW OF SURETYSHIP. accounting?—I think nothing can be worse than the COMMENTARIES on the Law of SURETYSHIP, and

the Rights and Obligations of the parties thereto. By WILLIAN present system of receivers accounting; they are BURGE, Esq. O C. M.A.&c. under no constant controul. The account is a mere STANFIELD'S PRECEDENTS IN CONVEYANCING. legal transaction, which is only brought into court A COLLECTION of Copyhold PRECEDENTS IN by a summons; and if the parties, for any particu-gether with Introductory Treatises upon the various transactions lar motive, do not choose to call the matter on, it occurrences incident to Estates of customary tenure, &c. By JOHN F.

STANFIELD, Esq. I vol. 8vo. 125. might stand over for years upon years. In addition to the case which I mentioned just now of a nine QUE

UESTIONS FOR LAW STUDENTS on the Second

Edition of Mr. Serjeant Stephen's New Commentaries on the Law years' account, it is a common thing to have an ac- of England. By JAMES STEPHEN, Esq. of the Middle Temple, Be.

rister at.Law. I vol. 8vo, cloth boards, price 10s. 6d. count of three, four or five years. If the parties are interested in keeping the thing back, it may go CONCISE FORMS OF WILLS: with Practical Noter.

T. . on for a great length of years longer.

1303. Do you think that it would be desirable THE LAW OF HUSBAND AND WIFE. A Trentino that the receiver should be obliged from time to time upon Roper's Treatise, and comprising Jacobs Notes and Additions therete to deposit in some neighbouring bank the monies as

By J. E. WRIGHT, Esg. of the Inner Temple, Barrister-at-Lav. volt,

royal 8vo. £2 10s boards, he got them?-I think it would be a very essential EDWARD J. MILLIKEN, LAW BOOKSELLER AND part of a better system that he should send in month

PUBLISHER, 15, COLLEGE GREEN, DUBLIN. iy, to whomsoever was the head of the department, an abstract of all his proceedings; and that the amount

All communications for the IRISH JURIST are to be left, addressed

to the Fditor, with the Publisher, E. J. MILLIKEN, IS, COLLFOR he had received should be lodged monthly, or per- GREEN. Correspondents will please give the Name and Addres, as the

columns of the paper cannot be occupied with answers to Anonyme haps quarterly, as might be thought best.

1304. Supposing he was obliged to deposit the Manuscripts, &c. money from time to time as he received it, and to Orders for the IRISH JURIST left with E, J, MILLIKEN, IS, MOL.

LEGE OREEN, or by letter (post.paid), will ensure its punctual delivery give an abstract monthly or quarterly, and that at in Dublin, or its being forwarded to the Country, by Post, on the day at certain intervals he should be obliged to give his re

publication. port upon the condition of the estate under his man

TERMS OF SUBSCRIPTION_(payable in advance): agement, and that when he was passing his general

Yearly, 30s. Half-yearly, 17s. account with the officer it should be verified by affi- Printed by THOMAS ISAAC WHITE, at his Printing Office, No 4 davit, do you think those would be great improve. COLLEGE REEN, in same Parish, by EDWARD COHEN on ments ?- I think those would be great improvements

MILLIKEN, residing at the same place, all being in the County of the
Ciry i Dublin, Saturday, September 15, 1849.

£1 2s.

I vol. 8vo. 18s.

Communications--nor will the Editor be accountable for the return

Quarterly, 9s.

Irish Jurist

No. 47.-Vol. I.
SEPTEMBER 22, 1849.

PRICE

Per Annum, £1 08.

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

Court of Exchequer

Jonn BLACKHAM, Esq., and cluding Bankruptcy

Chamber...

A. HICKEY, Esq., Barristers-at-
Appeals .......
Joan Pitt KENNEDY, Esq., Bar-

Law.
risters-at-Law.
Queen's Bench, includ-S FLORENCE

MCARTHY, Esq., and
WILLIAM BURKE, Esq., and

ing Civil Bill and Re-Samuel V. PEET, Esq., Rolls Court....... WILLIAM John DUNDAs, Esq., gistry Appeals. ..... Barristers-at-Law. Barristers-at-Law.

Exchequer of Pleas, in: Guas. H. HEMPHILL, Esq., and CHARLES HARE HEMPHILL, Esq.

/
and
Equity Exchequer....

and Registry Appeals. risters-at-Law.
WILLIAM HICKSON, Esq., Bar-
risters-at Law.

Common Pleas....... { ROBERT GIERCIN, Esq. and W. G.
Bankrupt Court....... ROBERT GRIFFIN, Esq. and W.G.
CHAMNEY, Esq. Barristers-at-law. Admiralty Court ...... {ROBERT GRIFFIN, Esq. and W.G.

CHAMNEY, Esq. Barristers-at-law.

DUBLIN, SEPTEMBER 22, 1849. on the occasion of giving his evidence before the

Receiver Committee.

“ I believe there is a great misapprehension about In considering the Encumbered Estates Act two the Irish Court of Chancery. I believe the Irish points soggest themselves as subjects for conside- Court of Chancery to be as capable of adrăinisterration.

ing justice speedily as any court that ever existed. The first connected with its policy.

When I left Ireland you could have a case in ChanThe second with the practical working of the cery decided more quickly than you could have an measure; what it proposes to effect, and how?

action at law tried; the court waited for the causes, Its policy, though a very legitimate subject for

not the causes for the court. No unnecessary refediscussion, ceases to be of practical importance to

rences were made to the Master, but every point the lawyer further than as a key to the meaning of that could be, was disposed of at the hearing. Judgthe Legislature. Whilst the measure was passing ment was never delayed.” through both Houses of Parliament we freely dis

But whatever may have been our predilections, cussed that policy; we expressed ourselves as not they did not render us insensible to the reasons and satisfied of the expediency of establishing a new tri- motives which actuated the framers of the act now bunal at a great expense to the country, and which, under consideration. The introduction of a new if designed to act on principles of equity, must be tribunal had not only the charm of novelty, but the the Court of Chancery in other hands; and that we

more important charm that it had no popular preshould have preferred the adaptation of that court judices to encounter; there were no ancient reministo the emergencies of the country rather than the

cences of Chancery tediousness, delay, and expense institution of a new one invested with powers of the

A new tribunal, which charged no most arbitrary nature, and established on the assump- fees, except those incurred for actual outlay, which tion that the Irish Court of Chancery was inadequate had no arrear of business to clear off, and but a sinto the management of the real property of Ireland. gle duty to perform, and which could confer a That court has been well abused, and we have our

Parliamentary title, possessed considerable attracselves not failed to point out reforms which were

tions to buyer and seller. We do not, therefore, necessary for its renovation, and for the public wonder at the experiment, which, if it failed, was good, more especially with reference to the manage. not productive of the mischief of disturbing a settled ment of estates under its controul; but we knew that court practice for an emergency which it was to be it had within itself the power of expansion and mo

hoped would pass away, and if successful was capadification, and that with little assistance from the ble of being happily blended with the established Legislature it was perfectly adaptable to all national tribunals of the country. We are sufficiently creareal property exigencies. We considered it unwise tures of circumstances to accommodate ourselves to to bring an organised, ancient, and, generally speak- the change, and to consider the act fairly and iming, efficient tribunal into disrepute by its being partially. superannuated or superseded. We cannot omit the

We are quite willing to believe that patronage, able defence lately made for it by one of its former though possibly a sinall item in the scale, was most distinguished heads—Sir Edward Sugden— not a determining point in favour of a new court.

to overcome.

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