684); Frost's case, (9 C. & P. 129), being all the one way, and there being no authority cited to the contrary, we are bound to follow them. It is said, that the prisoner cannot know against what he is to defend himself; but the answer is, that he may apply for a bill of particulars; it was also urged that should he have occasion to plead autre fois acquit, he would be unable to shew what were the publications on which he was acquitted. King v. Sheen, (2 Car. & P. 634), answers that objection. The next class is that of duplicity and is substantially the converse of the second branch of the preceding class, and is, that the words "further expressed," make each act a distinct felony. By the 3rd sec., of the 11th & 12th Vic., cap., 12, two things are necessary to constitute the crime, the compassing, and the expression of it; the 5th section allows any number of acts to be charged. There is one compassing on the 3rd of June, the subsequent acts are merely expressions of it, and not distinct felonies; and with the exception of Thistlewood's case, the precedents are all so. The next objection is that of repugnancy, this objection, the force of which on a former occasion, I can understand, is removed in the present indictment. The next objection is solely applicable to the 3rd & 4th counts, and if sustained, the effect will be to blot those counts from the indictment, except the part which charges the writing the letter to W. S. O'Brien, and is, that there is no averment of any overt act, publications not being such within the meaning of the statute-it occurred to me, that in legal construction, it by no means follows, that the same act may not range under more than than one 2 of the three modes of expression, given by the 3rd section of the statute; that though these printings may be only publications under the first, they may be a mode of expression under the third-there is a strong distinction between evidence of an intention, and the means made use of to effectuate it. I think that these publications, under the first branch of the 3rd section, are evidence of the intention; and are acts to effectuate the intention under the third. Fost. (C. L., 202, 203, 204). The next objection is to that portion of the count which states, a printing with the intent to publish, which, it is said, is not a publication. This objection, appears to me, to be unsustainable on the ground upon which I have ruled the preceding one. On these grounds, I am of opinion, this demurrer must be overruled.

LEFROY, B., expressed his entire concurrence.
The prisoner then pleaded not guilty.

Sir C. O'Loghlen, applied for a bill of particulars of the printings and writings to be given in evidence under the general counts-which was given him by the Attorney-General.

The prisoner challenged the array; and the Attorney-General joined issue.

Butt Q. C., addressed the triers appointed to try the issue; and told them he would prove that having regard to property and other qualifications, the number of Roman Catholics returned upon the panel was quite dis-proportionate to those of the Protestants. [Ball, J.-Was not the question of the proportions of religions decided on a former occasion. Lefroy, B.Are we to go into an examina

tion of the religious persuasion of the jury, when the question of proportion is not a legal one?] At the Maryborough special commission, Bushe, C. J., allowed this question to be put, and Moore, J., in the case of Mitchell, did not dissent from that authority—and at the late commission at Clonmel, the same course was allowed.

Witnesses having been examined, and the evidence being, that the panel was arrayed in conformity with the 3rd & 4th Wm. 4., c., 91. The triers found against the challenge.

Feb. 15.-LEFROY, B.-Before we go into this case, I think it right, in order to prevent any mistake or misconception, as to the question under discussion to state the rule stated in Mitchell's case, where I had the concurrence of Moore, J., that the doctrine of proportion, was not a test of the fairness, nor a criterion of the validity of the challenge to be disposed of. My brother Ball and I were led to suppose, that Pennefather, B., had taken a different view of the question; and we did not wish to set our opinion against the statement of counsel, that a ruling had been adopted at Clonmel, contrary to that in Mitchell's case, and that there the religion of several jurors had been enquired into.With the weight of so much authority, whatever my opinion might be, I should be sorry to act upon it, and we felt it due to that authority, to acquiesce in an enquiry as to the proportion of Roman Catholics. (The learned Baron here read the opinion of Mr. Baron Penefather, from the trial of O'Doherty, reported by Mr. Hodges, p. 523). No man should be put off or left on account of his religion; the impartiality of the panel is not to be tested by the proportion of religions; a doctrine, which if acted upon, is calculated to create most mischievous consequences, by leading to a strife we all should endeavour to repress. We were told that the Judges at the late commission at Clonmel, had acted on the rule of proportion, and admitted the enquiry, I have seen my Lord C. J., Blackburne, and I have his authority for contradicting that assertion, in the strongest terms; he said, the court had been informed, that certain jurors had been left off, on account of their religion; and that the question had been allowed on the understanding, that it would be followed by evidence to shew that the sheriff had acted illegally. On my interview with Mr. Baron Pennefather, he said, the question of religion cannot be enquired into; there must be a discretion in the sheriff, to select the persons from their intelligence best calculated to do their duty; if the sheriff is to make a panel by any proportion, his discretion is at an end. Now that we have ascertained the true ground of the decision of those Judges; I must say, that to allow this enquiry, would be a libel on every class of religions.

The prisoner then challenged as they came to the book, every person summoned on the panel aged sixty-one, and upwards, or who were nonresident within the borough, or had found bills against him at any of the commissions; which challenges were allowed. During the trial the following points arose in the evidence:

The Attorney-General offered in evidence a letter to W. Smith O'Brien, proved to be in the

hand-writing of the prisoner, and found in the port manteau of the former. The letter had no date.

Butt, Q.C., objected to its reception, not being connected with any charge in the indictment, and that it did not appear it was written since the passing of the 11th & 12th Vic. c. 12.

The Attorney-General then gave in evidence the Nation newspaper, of the 17th June, 1848, the statutable declaration of proprietorship, and of the place of publication of the newspaper, under the provisions of the 6th & 7th Wm. 4, c. 76; and then proposed to read a letter dated the 12th June, 1848, and in the newspaper of the 17th, to T. M. Halpin, Secretary to the Confederation, and signed "W. S. O'Brien," to which the letter of the prisoner referred.

Butt, Q.C., objected that the statute 6 & 7 W. 4, c. 76, did not entitle him to read the contents of the papers as facts-that the declaration was only evidence of the prisoner being the printer, proprietor, and publisher.

BALL, J.-Independently of the statute, I think that your objection is valid; but supposing it were proved that Mr. Duffy was sole conductor, the question would be, whether the contents were not prima facie evidence against Mr. Duffy, and the onus of shewing the contrary be not thrown upon him. You contend it is now sought, for the first time, to make a statement in a newspaper as evidence of a fact.

The letter was admitted in evidence de bene esse, subject to objections in fact; one of which was, that there was no evidence of its being written since the passing of the act.

The Attorney-General then proposed to read the Nation of the 29th July, 1848, and two manuscripts in the hand-writing of the prisoner, printed in it. The paper had been seized at the printing office before any copies had been circulated; a copy had been also found at the publishing office, with corrections on the margin. He contended that it was clearly admissible as a publication, and that the manuscripts were merely ancillary-that under the 6th & 7th Wm. 4. c. 74, the mere production of the newspaper made it evidence that this paper corresponded in the heading and conclusion with the previous publications. Printing, or causing to be printed, was a publication, Baldwin v. Elphinstone (Sir W. Bl. 1037.) [Ball, J.-The decision in that case was, that "caused to be printed" shewed the employment of others.] [Lefroy, B.-Is this evidence admissible under the counts charging publication, or those charging that he "caused to be printed, with intent to publish ?] If printing be a publication, it may be charged as a publication. There is evidence that the prisoner printed through the instrumentality of other persons. [Ball, J. On the authority of Baldwin v. Elphinston, the handing to others to print is a publication. In this case, we have in evidence that which there was only presumed.] The same view is adopted in Watts v. Fraser (7 Ad. & El. 223). [Ball, J., cited King v. Burdett (4 B. & Al. 161).]

Butt, Q.C., contra-King v. Burdett arose on a question of venue. There has been no publication of these manuscripts. [Lefroy, B.-There is no doubt that the evidence shews a publication of the

writings; they are in the prisoner's handwriting, and are found out of his possession. The question is, whether there has been a publication of the printing.]

BALL, J.I think these documents are admissible in evidence. The question is, whether the publication of the printing has been proved sufficiently to admit it in evidence. It was shewn that a number of persons were engaged in printing, and a large number of the papers were struck off. The principle stated in King v. Burdett is, that wherever third parties had an opportunity of reading, whether the matter be read or not, that is a publication as perfectly as if ten thousand read it. There is no distinction in civil and criminal cases between the rules of law; as to publication, the rule of evidence is the same.

LEFROY, B.-If there were evidence to shew that it could not have left the prisoner's control, it would make a different question. Here there is evidence of an intention to put the paper in a position to be out of his control, and to place it in that position as would bring it within the rule in civil cases. I think the facts of this case amount to a publication.

Butt, Q.C., in his address to the jury on behalf of the prisoner, proposed to read some passages from speeches of the prisoner delivered some years previously.

The Attorney-General having objected, on the ground of irrelevancy, after some discussion,

BALL, J., said, that on full consideration of the question, the court had come to the conclusion, that the speeches proposed to be read, strictly speaking, were not relevant, and could not, therefore, be properly admitted to the jury; but as it appeared from the cases referred to, that a large discretion had, in modern times, been given to counsel defending a prisoner, and that the practice had been adopted at the late Special Commission at Clonmel, the court did not feel itself justified in refusing the prisoner's counsel the same latitude in the present instance, though they were quite of opinion they were wholly irrelevant.

The Rev. Mr. Matthew was asked by Butt, Q.C whether a printed document in his hand was a correct copy of a speech delivered by the prisoner at Newry, in 1841.

Objected to by the Attorney-General.

Butt, Q.C.-The object is to shew that at that period the prisoner had a legitimate purpose then in view, and that it was continued down to the formation of the clubs in 1847, and that they were created with the same object. The same course had been allowed in Horne Tooke's case. In the case of the Queen v. O'Connell, in 1846, speeches delivered in 1810 were given in evidence, and the same course was adopted in the Queen v. Martin.

BALL, J.-If evidence to give a construction to his writings were admitted in Horne Tooke's case, I think it is here admissible to shew the meaning of the publications.

LEFROY, B.-The cases seem to be anomalous; but they have settled a rule of law contrary to the general rule of evidence.

The jury, not being able to agree to a verdict, were discharged.

1.

LORD CHANCELLOR.-The only question before me is, whether I am to give the creditor his remedy, or oblige him to sue out an elegit. I apprehend the court will not force a party to file an elegit bill to get rid of a sequestration. It occurs to me that the best course might be, that the judgment creditor should be examined in the office, pro interesse suo, and that if he appeared to have an interest, he should be let into possession by a receiver. The order, then, must follow that in Hamblyn v. Ley (3 Swan. 301, n; S.C. 1 Dick. 94.) I will not remove the sequestration till the receiver be appointed.

"Refer it to the Master of this court in rotation to appoint a fit and proper person to be receiver over the lands and real estate in the petition mentioned and described, situate, &c., on his entering into security, &c.; and, upon the receiver being so appointed, let the sequestrators be discharged from such lands, and let the deposit made by the petitioner, with the registrar, be returned to him."

Lib. 4. fo. 227.

ROLLS COURT.-Jan. 20. THE LIMERICK AND WATERFORD RAIWAY COMPANY, Petitioners-O'FERRALL, Respondent.

Solicitors' Lien on Documents.

Though a solicitor discharge himself, the court will not direct him to deliver up to his former client documents on which he claims a lien, unless a case of pressing necessity, or danger of loss, be made out. A Court of Equity will order a taxation of costs, though all the costs be for conveyancing. This was an application to have the bills of costs of the respondent referred to one of the Taxing Masters, and that the respondent might be restrained from proceeding in an action at law for the recovery of same, and that he should be directed to furnish, on oath, a list of all credits to which the petitioners were entitled, and that it should be referred to the Master to take an account of all moneys received by the respondent on account of said costs, and that he should be

directed to lodge in the office of the said Master all the title deeds, papers, and other documents belonging to the petitioner.

The petition stated, that John O'Ferrall had been the solicitor of the company-that in the month of October last, he declined to act any longer as such-that he had furnished, on the 5th of October last, his costs, consisting of more than 750 separate that the respondent had received large sums of bills, amounting to the sum of £26,022 14s. 8d.— he had also received money from adverse claimants, money, amounting to £7,000, and upwards-that the company-that, until the costs had been furagainst whom costs had been awarded, in favour of nished, the company believed that the several sums so paid had nearly discharged the costs due to the in said bills of costs-that the respondent had respondent-that there were gross over-charges applied to his own use, moneys intrusted to him to

pay claimants-that, in consequence, some of the claimants had taken law proceedings against the all the deeds, agreements, contracts, receipts, and company that the respondent was in possession of vouchers, relating to the portion of the line extending from Limerick to Tipperary, and that he had refused to hand over, or permit the company to have any access to the same, until paid his demand-that the taxation of said costs must, of necessity, take much time, and that the company would be subject to much inconvenience, if not positive loss, by reason of the withholding of their deeds and papers.

The respondent, by his answering affidavit, stated, that he had not dismissed himself; but the company, by reason of their not supplying him with money to pay costs out of pocket, had obliged him to decline to act. It also denied the charge of misapplying the funds intrusted to him.

a

Hughes, Q.C., for the petitioners, contended that solicitor who discharges himself cannot retain documents in his possession; and cited Rutledge v. Rutledge (2 I. E. R. 290). The court has jurisdiction to make the order, though there is no cause in court, in re Uxbridge (6 Ves. 425); in re Murray (1 Russ. 519); Heslop v. Metcalf (3 M. and Cr. 183).

J. D. Fitzgerald, Sir Colman O'Loghlen, and Mr. Michael O'Ferrall, for the respondent, contended, that to deprive a solicitor of his lien, it was necessary to make a special case, and that no such case had been made on this motion. Heslop Manly (1 Tur. & Russ. 400) shews that it is only v. Metcalf shows this necessity, and Colgrave v. in a Bozon v. Bolland (4 M. & Cr. 354). As to the cause that such an order will be made, nature of the solicitor's lien, Richards v. Platel (Cr. & Phil. 79), and as to the order the court makes on such applications, Cane v. Martin (2 Beav. 584), and in re Smith (4 Bea. 309), only shews that such an order will be made in a case of gross misconduct; and a passage in the judgment in that case (page 316) shews that a deed not appearing to be required in any cause, was directed to be retained by the solicitor. If the order be made in a cause, the solicitor has a lien on the funds realized in the cause, but in this case the lien will be destroyed if the order give the company liberty to

inspect the documents. There is a distinction between a solicitor discharging himself and being obliged to discharge himself.

Mr. Lawson in reply. It is clear that the respondent has discharged himself, within the meaning of the cases of Rutledge v. Rutledge and Heslop v. Metcalf. The principle on which all the cases have been

decided is the inconvenience and loss that would result from the court not making the order; and the principle is well established, that a solicitor who discharges himself cannot preserve his lien on documents, when his so doing must cause loss to his former client.

MASTER OF THE ROLLS.-In this case there is no difficulty as to the first part of the order which is sought. I have absolute jurisdiction, on decided cases, to make an order for taxation, even though there be no taxable item from the beginning to the end of the bills of costs. In re Rice (2 Keen. 181) is an authority for such a reference. Though the courts of law in England have felt some difficulty in respect to jurisdiction, the Court of Common Pleas deciding in one case that there was no jurisdiction for such an order, yet Courts of Equity have always directed even the costs of conveyancing to be taxed. There being no doubt that I have jurisdiction to make that part of the order which relates to taxation, the question arises, on the other branch of the motion, what is the general right of a solicitor to retain documents, on the ground of his lien upon them, when the claim of the former client arises out of a pressing necessity for the documents retained? The case of Hutton v. Harden (1 Turner & Russ. 304) decided, that on lodging the money in court the order will be made. There is another instance in which this order will be made, and that is where the withholding of the documents must occasion loss; this instance has been illustrated by the example of a policy of insurance; and, in such a case, the court will order the solicitor to hand over the policy, but, at the same time, will direct the company to preserve his lien. Now, in this case, neither a pressing necessity, or a danger of loss, has been shewn to exist. But cases have been cited for the purpose of shewing that where a solicitor discharges himself he cannot retain documents. [His Honour referred to the early decisions on this point, and to the case of Heslop v. Metcalf, as having first extended the principle laid down in the earlier cases.] I do not think there is any distinction between inspection and production. I think, on the affidavit in this case, I am bound to hold that the solicitor has discharged himself; but I think there is a distinction between this case and the case of Heslop v. Metcalf, for here no pressing necessity has been made out. A question may arise between a client and a solicitor who has acted for a great number of years, and then declines to act without advances; and I think it would be pressing the principle of the case of Heslop v. Metcalf too far to say, that an order to deliver up documents would be made, without there was a case of very pressing necessity shewn. I do not think, on the case which has been made, I ought to exercise the jurisdiction the court possesses; but I shall make an order which will meet the justice of the case, directing the taxation

and a list of the documents to be furnished, but refusing that part of the motion which seeks for the production or inspection of the documents, without prejudice to the company making an appli cation for their production, on shewing a pressing necessity, or danger of loss.

Jan. 25.-" Refer it to one of the Taxing Masters of this court to tax the several bills of costs furnished by the said J. O'Ferrall to the said Waterford and Limerick Railway Company, and let the said J. O'Ferrall furnish, on oath, to the solicitor for said company, a list of all credits to which petitioners are entitled against the said costs, petitioners undertaking to pay the amount, if any, which shall appear due on such taxation, after all eredits; and let the said Taxing Master, on taxing and ascertaining said costs, take an account of all such credits, and strike a balance; and let a plea of confession be lodged with the Registrar of this court, to be filled up with the balance, if any, certified to be due; and, upon payment of what will be found due upon such taxation, let the said J. O'Ferrall deliver up to the petitioners all deeds, documents, and papers in his possession, or power, belonging to the petitioners; and no rule on said petition, so far as it seeks that said Mr. J. O'Ferrall should lodge the papers, deeds, and documents in the Taxing Masters' office, or that petitioners should be at liberty to inspect said papers, deeds, and documents, without prejudice to any application which may be made by petitioners, in respect of any particular documents, &c., if it should appear that there is a pressing necessity that same should be inspected by, or delivered over to, the petitioners; and let the said Mr. J. O'Ferrall furnish a list, verified on oath, of all deeds, &c, in his custody, power, or possession, the property of the petitioners, and the said Mr. J. O'Ferrall's bills of costs, amounting to £26,022 14s. 8d., and Mr. J. O'Ferrall insisting that the entire credit to which the petitioners are entitled amount to but £8,160, and no more, reserve the question of costs of said petition and the proceeedings on this order until the costs shall have been taxed, and the said accounts shall have been taken, and balance struck."

Lib. 27, fo. 126.

DARLEY, Petitioner-HUNTER, Respondent-
March 1.
Practice-Receiver.

The court will not make an order permitting a receiver to account but once every five years, although the property over which he is appointed produces but £10 per annum.

This was a petition for the appointment of a receiver, on foot of a judgment, over a property which amounted to only £10 per annum, and the petition prayed that the receiver might not be bound to account more than once in every five years, paying over the surplus rents to the peti