of it, are clearly stated. The cases in which the preparatory words "of and concerning" were used, were cases of libel and oral slander, in which the words required inuendoes to explain their object. This is not a case where the design and intention of the publication were left at large, or to conjecture, for here the charge is plain; it is the compassing to depose the Queen, and the expression of it, by the publication of these articles; so that all which could be required in cases of libel and slander, is, in substance, contained in the present indictment. And there is not, as my brother Perrin suggested, a single instance in which it was neces sary, be nominally trustees for the public. Looking at the matter in this view, and considering the enormous inconvenience that would arise if the objection taken were held good, it appeared to him that the challenge to the jurors would not be admitted." Such was the opinion of those eminent judges, and in that opinion I entirely concur; and for these reasons, we are satisfied that, as a burgess, this juror is not interested in the goods of the felon. The next question is, was he interested as a ratepayer? The challenge stated that the goods and chattels of felons were applicable to the borough fund, "that William Duff was a burgess of the said City of Dublin, and an occupier and tenant of certain hereditaments within the city of Dublin, liable to be rated to a borough rate within the said city, and that the borough fund of the city of Dublin, after the payment of all debts from the body corporate in said hereinbefore recited act mentioned, and contracted before the passing of the said act, and after satisfaction of all lawful claims upon the real and personal estate of such body corporate, is not sufficient for the purpose in said act mentioned," and that consequently the juror was interested in the conviction of the prisoner. The authority mainly relied on to support this objection is a passage from 2 Hawkins, P. C. c. 43, s. 28, where it was stated that it had been always held to be a good cause of challenge that the juror was interested in the attainder or forfeiture of the goods. Upon this point the authority when stated below not being at hand, the Chief Baron stated his opinion to be, that the meaning was, that the juror should be shown to have a direct interest in the subject matter of the trial. The authorities support his lordship in that opinion. In Lord Maguire's case, State Trials, Vol. 4, the matter of objection was, that the prisoner's lands were sequestered, and that the juror had obtained a grant of them. Under such circumstances nothing could be plainer in justice or law than the incom. petency of the juror to sit on the trial, for the con in reference to any of these publications, to explain their object or intention by an inuendo. It was, in the second place, objected that the publication was not averred to be felonious. I do not see how, in propriety of language, these publications could be called felonious. That word is properly descriptive of the intention with which means are used, or acts are done by a party—but the gun, for instance, with which a murder was committed, or the publications here could only be called felonious by a misapplication of that term. The act done namely, the publication-was properly stated to have been feloniously done by the prisoner, and that satisfied all the requirements of the law. The court is therefore of opinion that all the errors assigned on these various grounds should be overruled. The third error assigned is, the disallowance of a challenge for cause, to which challenge the crown demurred. It is in effect, that the juror, being a burgess of the corporation of Dublin, and a ratepayer, had an interest in the conviction of the prisoner, Henry the Fifth having, by charter, granted to the corporation of the city of Dublin the goods and chattels of felons convicted within the city. | Various objections have been made to the form of this challenge: were it necessary, the court would consider them in detail, and some of them are of a very serious character; but, as we decide that the challenge should be overruled on its merits, the court will not intimate any opinion on those objec-viction of the prisoner would confirm his own title. tions. To one, however, I will have subsequently to refer-I mean that "which relates to the enjoyment of the franchise." This challenge contains double matter; first, it suggests an interest in the juror, as a burgess of the corporation; and secondly, an interest, as a ratepayer of the city of Dublin. Now, what interest has a burgess, or a citizen, in the forfeiture consequent on the convic-ested in the issue to be tried, the object of it being tion of a felon? Plainly none; for the goods so forfeited are all dedicated to public purposes. The corporation is but a trustee for the proper application of the property and income, and even that application and disposition is confined to the town council, to the total exclusion of the burgesses. The Chief Baron stated in the court below-and Baron Pennefather concurred in his view" that the Municipal Act vested the whole management in the town council, and that though the burgesses might have a general interest in the management of the fund, qua burgesses, still, as burgesses, they were not empowered to do a single act in the matter. The town council was invested with the sole authority, though the entire corporation might The case of Hesketh v. Braddock, (3 Burr. 1847), is relied on. There the objection was, that the sheriff' who returned the jury, and the jury who tried the case, were freemen of the city of Chester. The action was brought to enforce a custom under which none but freemen of the city could trade in it; and Lord Mansfield said that every freeman was inter to establish a privilege in which the freemen had an exclusive monopoly-the sheriff and the jury being freemen. In this and other cases the objection was, that the party had an actual, direct, personal, and immediate interest in the result of the case to be tried. In order to ascertain whether those cases, or any of them, are applicable to the case now before the court, it is necessary to examine the precise character or nature of the interest the juror has in the result of the trial. It has been stated that the corporation is empowered or required to impose a borough rate, if the funds of the corporation are not sufficient to meet its liabilities, and defray the expenses of carrying the provisions of the act into effect. The 133 section of the Municipal Corporation Act directed that the cor poration should make an estimate of the amount so required, in addition to the ordinary funds of the borough, this estimate was not averred to have been made, and never might be made; and, until the making of it, the amount of the rate could not be ascertained, nor could a rate exist at all in fact or in law; so that it was purely casual and contingent whether the juror would ever be liable to be rated. Again, the borough fund, by section 128, is declared to consist of the rents, issues, and profits of all hereditaments, estates, and tenements; and the annual proceeds of dues, monies, chattels, and valuable securities, were to be received to the credit of the borough fund. It did not follow, however, even if there were a deficiency notwithstanding the various sources from which this income was derived, that the means of supplying that deficiency might not exist before the ascertainment of the amount, and therefore before any legal rate could be made. Besides, the goods of a felon were not forfeited until judgment, and, in the time that intervened between the challenge and the conviction he might dispose of all the goods that he then possessed. And, in addition to this, it was possible the juror might die, and cease to be the proprietor of rateable property before a rate was imposed, without ascribing any value whatever to the uncertainty of this supposed liability, which, for the reasons stated, I am satisfied is altogether ideal. What were the expectations of advantage that accrued from the forfeiture of a felon's goods? To be accurately expressed it would be in such terms as these :that his rate would be lessened provided the town council should have thereafter a right to impose any rate, and provided they took the steps prescribed by law to enable them to do so; provided also the juror should live until the rate was made, and provided he did not dispose of his rateable property in the meantime; and finally, provided the prisoner did not dispose of all his chattels before the judg. ment. In my apprehension it is utterly impossible to discover or define any actual interest in the result of a suit which is to depend on such a series of contingencies. I am, therefore, clearly of opinion that, considering the nature of the challenge, there is not any resemblance between this and any decided case where objections to a juror or a witness were allowed for interest; nor do I think there is any authority or position to be found which could warrant the court in holding that the juror in question did not stand indifferent, as he stood unsworn Even had the challenge averred matter that proved the juror's present liability to be rated, there was authority to shew that such liability would not (unless the party were actually rated) be a ground of incompetence. The King v. Kirkford, (2 East. 559) established the distinction between present and actual interest, and that which was future and contingent. There objections were taken to the competency of a witness on the ground that he had rateable property, but was not actually rated, and Lord Ellenborough stated that the interest which the juror was alleged to have should be an actual existing interest at the time, and not an expectant interest; and in Marsden v. Stanfield, (7 B. & C. 815,) upon an issue to try whether a teme ment was situated within a chapelry, a witnes occupying a rateable property in the chapelry was held to be competent, because he was not actually then rated, though upon a future occasion he might be. be. In considering and disposing of this challenge and its merits, I have no regard whatever to the consequences that would follow if it were allowed; embarrassing and injurious as they would m doubtedly be, I have excluded them from my mind, and confined my attention to the challengewhether it was supported by authority, precedem, on legal principles; but I think it right to add that the matter of the present challenge, if it has any real existence, has lain dormant for centuries if it has the tendency now for the first time attr buted to it, it must vitally have tainted the most important branch of the administration of justice in this populous city, and therefore the discovery of its pernicious nature and effect could scarcely have been reserved until the nineteenth century, This consideration has impressed me with the inportance of the omission in this challenge of my averment of user, possession or enjoymentomission, in my mind, not of form but of substance; for rights of this kind might be, as the authorities abundantly proved, lost or forfeited by nonuser or misuser. If it were necessary to decide the case on the ground of this omission, I should be strongly disposed to think it fatal to the challenge; and that the averment of user and possession was not made, because it could not, in my judgment, without tendering an issue upon the fact. Upou its merits, this challenge is utterly untenable. The last error assigned is, that the act under which John Martin was convicted, and sentenced to transportation beyond the seas for the term of ten years, required that some place not in Europe should be specified in the sentence pronounced by the judge. This was assuming that the sentence of transporta tion was governed by the act, 26 Geo. 3, c. 24, s. 66. I do not think it is. The sentence is in the very terms of the act of 11th Victoria, which created the felony of which the prisoner has been found guilty; and under the 30th Geo. 3, c. 32, the Lord Lieutenant is to appoint a place to which the cou vict is to be transported in execution of the sentence On this subject there were various authorities; I will content myself by referring to the case of the King v. Reynolds,* in which this court decided that the sentence ordering that the prisoner should be transported for the term of ten years, the colony to which he was to be sent not being mentioned, was correct. The objection, therefore, is not only met by the very terms of the statement in which the sentence was pronounced, but it has also been met by the authority to which I have referred. For these reasons it appears to me that all those causes of challenge ought to be overruled. Crampton, Perrin, and Moore, J. J., expressed their concurrence. Errors overruled. This case is not reported. COURT OF CHANCERY. POTTS v. TURNLEY.-Dec. 1. Attorney general ought to be fully apprised of e proceedings in a suit instituted against a arity, or the crown. "ounsel having applied for the costs of the orney-general, he Attorney-General said that in cases of wills lving questions concerning charities, he was e a defendant, that an answer was sent him plaintiff's solicitor, which being signed, he no further notice of the proceedings in the cause, that he was consequently unable to protect the ts of the crown. wn have not been defended in this suit. I think proper course in this case is, that I should ect the plaintiff's solicitor to lay the plead s and evidence before the Attorney-general's first, and every other son of the said William Alexander Williams Kerr, severally and successively in tail male, according to the usual course in default of such issue, to the use of the said Wm. of strict family settlements, with remainders over, Alexander Williams Kerr, his heirs, &c. There was no tenant in tail in esse under this settlement. The bill was filed on the 19th of January, 1847, less against the cognizor and others, and prayed a sale, than a year after the judgments had been obtained and that the said deed might be declared fraudulent and void, as being voluntary. By a decree in the first cause, bearing date the 14th of June, 1848, the judgments were declared prior to the trusts of the deed. The bill in the second cause was filed on the 25th of March, 1848, to raise the sum of £14,000, charged on the inheritance by deed of mortgage bearing date the 29th of March, 1845. ORD CHANCELLOR.-That practice is very imer. I think Lord Eldon was in the habit of ping cases where the rights of the crown were cerned, and the Attorney-general made a party his formal way. You should have an opporty of inquiring whether you wish to take any s in the case. It appears to me that where On the 19th of July, 1848, an application was rights of a charity are concerned, the Attorney-made by the defendant, John Kerr, to his Honour eral ought to be furnished with a brief of the the Master of the Rolls, that the proceedings in ceedings, and made fully acquainted with his the second cause might be stayed, and that all parnts in the case. At present the rights of the ties thereto might prove their demands in the first cause. The application at the Rolls was refused, and in the course of his judgment, his Honour stated that he would not restrain the mortgagee on account of several imperfections in the first cause. First, because the judgments not being a year old at the time of filing the bill, the plaintiff, under the 3 & 4 Vic. c. 105, s. 22, was not entitled to sue. Secondly, that the first cause might be dismissed at the final hearing, the mortgagee having then the right to demand to be redeemed, and that right was not lost, because not insisted on at the first hearing. And thirdly, although it was not necessary to decide the case on that point, because he could find no reported case in which such an order was made where the debtor was alive; that such orders, however desirable, were only made in creditors' suits for the administration of assets. From this decision the defendant, John Kerr, appealed. The plaintiff, Cleland, was a party defendant to the first cause, had appeared at the hearing, and had not insisted on being redeemed. insel. Dobbs stated that the Attorney-general's counsel peared at the first hearing. LORD CHANCELLOR. That counsel was in ucted by the plaintiff where the rights of the own are concerned, there ought to be counsel the Attorney-general, appointed by him. FOSTER V. KERR, CLELAND v. KERR-Dec. 9. Practice-Staying Proceedings. he bill in the first cause was filed to raise the Christian, Q. C, with E. Burroughs, for the appeal, cited Loftie v. Fores, (2 Ir. Eq. Rep. 443); Beauchamp v. Huntley, (Jacob, 546); Damer v. Portarlington, (2 Phillips, 30). Hughes, Q.C., with H. Smythe, for the plaintiffs in the second cause, submitted that the first suit was irregularly framed, inasmuch as the judgments were not a year old before the filing of the bill. Although the plaintiff here did not insist on being redeemed at the first hearing in Foster v. Kerr, he may claim that right on the hearing for further directions. (Lord Chancellor. The plaintiff has lapsed his time, he cannot at the second hearing insist on redemption). and cited Uniack v. Rochford (1 Mol. 216); Rigby v. Strangways (2 Phillips, 175); Woodburne v. Harrington (4 Law R. N. S. 69,); Rotherham v. Webb (4 I. E. R. 52). Leach, for Foster, the plaintiff in the first cause, cited Bennett v. Bernard, (10 I. E. R. 584). E. Burroughs, in reply. The plaintiff, Cleland, is bound by a decree in the first cause, which was pronounced in his presence. He might then have insisted on the ordinary decree in a redemption suit, referring it to the Master to take an account of what was due for principal, interest, and costs, and that the plaintiff in the first cause should pay him within three months, or the bill to be dismissed. The court, after a decree for redemption, and pending the accounts, would stay a mortgagee from prosecuting a foreclosure suit, to prevent double litigation. It is too late at this stage of the proceedings to raise any objection as to the judgment not being entered a year when the bill was filed. The objection should have been made at the first hearing, Vincent v. Going (7 I. E. R. 463). LORD CHANCELLOR.-Though this court is always anxious to avoid increased expense as much as possible. I find that in the case of Reid v. Territt (1 Collyer, 1), when there was an irregularity in the former suit, and a difficulty in the carrying out of the decree, an application to stay proceedings was refused. Here a creditor has obtained a decree within a year from the entering up of his judgment, the only parties representing the estate being the defendants, Kerr and his wife, the trustees named in the deed of May, 1846, and the tenant for life in remainder, William Alexander Williams Kerr. There is no tenant in tail in esse under the limitations of the deed of 1846, and it is possible that a tenant in tail hereafter may be dissatisfied with the decree, and demand a rehearing. I feel I cannot, therefore, on such a contingency, which is within the range of probability, affect the rights of a prior mortgagee. I have already stated what I believe to be the practice of this court-that a mortgagee cannot insist on redemption at the final hearing, having failed to do so at the first. I do not say that if there were no infirmity in the first cause, and that in it as satisfactory relief could be obtained as in the second, that I should not stay proceedings in the latter, although neither suit be for the administration of assets; but having regard to the defective constitution of the first suit, and the high nature of the security of the plaintiff in the second cause, I cannot prevent him from prosecuting that in which his relief will be more effectual and conclusive, and I must, therefore, affirm the order of the Master of the Rolls. ROLLS COURT. DOWER V. ROXANE.Nov. 27. * COURT OF EXCHEQUER CHAMBER. THE QUEEN v. SUGDEN.-Nov. 16, 28. Held by five judges that in the construction of statutes Held by four judges that there was a casus omistus, upon This was a writ of error brought to reverse the judgment of the Court of Queen's Bench on an information in the nature of a quo warranto, calling on the plaintiff in error to shew cause, by what authority he held the office of Assistant-Registrar to the High Court of Chancery in Ireland. The Court of Queen's Bench having given judgment for the crown, the defendant brought his error to reverse that judgment. No question being raised upon the pleadings, the only matter for the consi deration of the court depended on the construction to be given to the 11th section of the 6 & 7 W. 4, c. 74.† * Coram Blackburne, C.J., Pigot, C. B., Pennefather, B., Torrens, J., Crampton, J., Perrin, J., Richards, B., Ball, J., Lefroy, B., and Jackson, J. Absente, Doherty, C. J., and Moore, J. And whereas it is expedient that the office of the Registrars of the said Court should be regulated; there fore be it enacted, that the establishment of the Registrar's office shall consist of two Registrars, one AssistantRegistrar, and six clerks, and such a number of scrivenary clerks as the service of the said office shall require, and as shall be approved by the Lord Chancellor; and that Francis Prendergast and Charles O'Keefe, Esquires, shall continue to be such Registrars, and Robert Long, Esquire, shall be the Assistant Registrar, and Yelverton O'Keefe, John Kelly, William Young, Robert Levy, John Connor, and Thomas Battley shall be continued as such clerks, and that Francis Whelan and John Kelly, junior, shall act as assist. ant clerks in the said office; and that upon the happening of a vacancy in the office of either of the said Registrars, such vacancy shall be filled up by the Assistant Registrar; and that upon a vacancy happening in the office of Assistant Registrar, the same shall be filled up by the chief clerk, Chancellor shall be made; and in that case, if the Lord Chancellor shall not consider him to be qualified, then the Lord Chancellor shall, until aftermentioned, appoint some proper person to be Assistant Registrar; and as vacancies may occur in the office of any of the present clerks or assistant clerks, such vacancies shall not be filled up until Every notice should state, not only the names of the if no sufficient objection to the satisfaction of the Lord solicitors, but the persons for whom they act. MASTER OF THE ROLLS.-The notice in this case does not state for whom the solicitors act, to whom it is addressed; and if it were not a motion almost of course, being thus irregular, I should say no rule. Note. Some days afterwards, his honour refused a motion, in the case of Allen v. Carew, for the reason given in the above case, stating it was impossible to know whether the proper parties had notice. See Lloyd v. Johnes (9 Ves. 37.) the whole number of clerks be reduced to six: and upon a vacancy happening after the number shall be reduced to six, the Lord Chancellor shall appoint some proper person to fill the office, and so from time to time until the whole of the present clerks shall be removed; and when a new succession of clerks shall be so appointed, then and in that case, upon the death, resignation, or removal of any of As all the questions argued at the bar are fully stated in the opinions delivered by the judges, it is only necessary to state the points relied on, and the authorities cited by the counsel at either side. Hamilton Smythe, with Tombe, Q. C., for the plaintiff in error, contended, first, that the relator, Mr. Kelly, could not claim the office of AssistantRegistrar by right of succession, as the eleventh section only intended that right to exist when all the clerks in office at the time of the passing of the act, had been removed. Secondly, that the policy of the act being to supply the office with persons for whose competency the Chancellor was to be responsible, had given him the power of appointing from time to time a fit and proper person to fill the office of Assistant-Registrar, until the new succession of clerks was complete, and that the right of Y. O'Keeffe to this office was personal. Thirdly, that supposing the Chancellor had no right of appointment by the statute, that this was a new office, and there being no reservation of the rights of the crown, the appointment vested consequently in the Chancellor, as the head of the court. For this they cited Stat. West. 2, c. 30; 13 Edw. 1, 185; 2 Inst. 425; Scroggs v. Coleshill, (Dy. 175); Mitton's case, (4 Co. 32); Bridgman v. Holt, (Skin. 354, S.C. Show. P.C. 11); Harcourt v. Fox, (1 Show. 526, S.C. 4 Mod. 723); Harding v. Pollock, (3 Bligh. P. C. N. S. 161); Wilkes v. Williams, (8 T. R. 631); Crosby v. Hurley, (Al. and Nap. 481); Kennedy v. Gregg, (8 Ir. L. Rep. 225); Falkner v. Sweeney, (Al. & Nap. 438); Martin v. Marshall, (Hob. 63). Corbett, with Napier, Q. C., for the defendant in error. The evident meaning of the eleventh section is, that there shall in future be six clerks, not a chief clerk and five others. The expression chief clerk designates the head of a class, and not an individual. How can it be known who the chief clerk is, none being previously mentioned; the particle "the" means Y. O'Keeffe, John Kelly, &c., as they would come to the head of the office, and the word "chief" being synonymous with "first," means O'Keeffe who was to fill the office-if there was no objection made to him; if there was, then the Chancellor was to appoint "a fit and proper person;" that is a positive enactment, excluding any power of appointment by the Chancellor, until the contingency of an objection being made, had arisen. It is essential that a chief clerk should exist, as if there be none, there is no material to provide for the filling of the offices of Assistant-Registrar, or Registrar. The first section of the 6 & 7 W. 4, shews that certain them, other than the junior clerk, the vacancy thereby occasioned shall be filled up by the clerk next in seniority to whom no sufficient objection to the satisfaction of the Lord Chancellor shall be made; and that on all future vacancies in the office of junior clerk, the Lord Chancellor shall appoint some proper person to be such junior clerk; and that upon a vacancy happening in the office of Assistant Registrar after the whole number of clerks shall have been appointed by the Lord Chancellor under this act, then such vacancy shall be filled up by the senior clerk in the said office for the time being to whom no sufficient objection to the satisfaction of the Lord Chancellor shall be made. offices were intended to be abolished, and provision made for the performance of the duties belonging thereto, and then enumerates the offices to be abolished, that of chief clerk is not among them, this office not being among those abolished, and there being no provision for the execution of the duties connected therewith, it must still exist. The 27th section provides for the payment of a retiring allowance to a person named Daly, who had been chief clerk, by the then chief clerk, O'Keeffe, and the Registrars, if the term chief clerk be taken as a designatio persona, after the departure of that person, who is to fill his place as to the payment of Daly. Under the 11th section no vacancy was to be filled till the whole number of clerks were reduced to six; when reduced to six, the assistant clerks became clerks, and then a succession was created in the office. This is not an office peculiar to O'Keeffe ; chief is a designation of the head of a particular class, and on the nomination of O'Keeffe, Kelly became the chief or head of that class. The words chief and first are synonymous. This is a newlycreated office, and the right of appointing thereto belongs to the crown by virtue of the royal prerogative, and not to the head of the court, except there be a lapse of the assertion of the rights of the Crown. When a court is created, the right of appointment to all subordinate offices necessarily incident to it should of right belong to the head of the court. This office is not necessarily incident, as in that case it must have been co-existent. The judgment of Mr. Justice Littledale, in Harding v. Pollock, (3 Bligh, N. S. 220,) shews the right of the crown to appoint to all offices, by virtue of its prerogative, King v. O'Grady, (Q. B. Ir. 1816); Viner. Ab. tit. Office, Pl. 5. Nov. 28. The Judges differing on this day delivered their opinions seriatim. JACKSON, J.-This case comes before the court on a writ of error to the judgment of the Court of Queen's Bench, on an information requiring the plaintiff in error, the defendant below, to shew by what authority he uses the office of AssistantRegistrar to the High Court of Chancery in Ireland. No part of this case depends upon the pleadings. The plaintiff here contends that his right is derived from the appointment of the late Lord Chancellor (Sir E. B. Sugden), and the question whether the plaintiff in error has shewn a title to this office, depends on the right of the Lord Chancellor to appoint to the office of Assistant-Registrar; and this turns on the true construction to be given to the 11th section of the 6 & 7 Wm. 4, c. 74. In other words, whether the statute provides for the state of facts which have occurred, or whether there be not, in this respect, a casus omissus. The Act of Parliament upon which the present question arises was passed for the purpose of regulating the office of Registrar to the Court of Chancery it becomes, therefore, necessary to inquire how it was regulated previously to the period of its enactment. The 4 Geo. 4, c. 61, sec. 42, vested the appointment of the "first clerk" in the Registrars, to whom, out of the fees of the office, they were to pay a salary of £500 per annum, and also the salaries of all inferior clerks. The 6 & 7 Wm. 4,, |