missioners of Drainage are guilty of negligence, unskilfulness, or exceed their jurisdiction, the common law right of action is not taken away by implication, but that the Commissioners are still liable in an action on the case. To prevent this disagreeable consequence, the 36th section provides that "in all cases where any person shall consider himself entitled to be paid compensation or damages for or by reason of any act or omission by or on the part of the Commissioners, or for or by reason of any works or acts whatsoever, done or professed to be done under the authority or in pursuance of the provisions of the said Acts or of this Act, such person (save as hereinbefore provided) shall not be entitled to proceed at law or in equity, for or in respect of the same, but the right to such compensation or damages, and the amount thereof, shall be ascertained in the manner herein before provided, and not otherwise, anything in the said Acts contained notwithstanding." The 52nd section of the 5th & 6th Vic. c. 89, although simple and comprehensive in its terms, has led to a great deal of absurd discussion in one or two cases, which came before the Master of the Rolls, and the Court of Chancery, on appeal during last Trinity Term. That section empowers the owner of a mill or factory, whose working waterpower is injuriously affected by the operations of the Commissioners, to present a summary petition for an injunction to the Court of Chancery, which is to make an order or orders thereon, either directing an issue or a reference to the Master, and from time to time to make orders for compensation, and to restrain the Commissioners from doing any act or otherwise, as to the court shall seem just. On the argument of one of those petitions, counsel for the Commissioners, in the most pathetic terms, besought of the court not to consign his clients to the tender mercies of a jury of the country, and betrayed a wholesome terror of the consequences that would result from an investigation of their conduct by a We shall leave the construction of this clause to tribunal which is never dreaded by those who do the courts themselves, but hope the time has not yet no wrong. That terror seemed to have inspired arrived when the authorised and incorruptible trithem in the framing of the Act under considera- bunals of the country will be prevented successfully tion, as the 33rd section of the 16 & 17 Vic. pro- from giving relief, in cases where the prescribed vides a similar remedy to that already provided in remedies are either impracticable or inapplicable. the 52d. sec. of 5 & 6 V. and in exactly the same lan- It is to be hoped that no individual or collection of guage, with this important exception, that the court individuals, will be armed with such high and irrehas no power to direct the dreaded issue, and the sponsible powers, as to be able to set at nought the only tribunal to ascertain the amount of compen-interposition of our courts of justice, which should sation to which an injured mill owner may be en-never be closed to the meanest in the community, titled, is the Master's office. In future the mill- and whose jurisdiction should be as available for owner, though he live one hundred and fifty miles the intimidation of the most powerful, as for the away from the Master's offices, will have to bring protection of the weakest subject of the realm. up his witnesses at great expense, attend the leisure of an overworked functionary at great inconvenience and injury to himself, and the Master, who has to decide the question, will have no means of ascertaining the amount of injury by personal inspection-the only safe guide in investigations of this nature. No further comment is necessary to point out the utter inadequacy of such a provision to meet the exigencies of the cases to which it is proposed to be applied. Notwithstanding the remedies pointed out by the previous Acts of Parliament, the courts in Dublin have unanimously decided that wherever the Com I have taken up this statute out of its order, in the course of these letters, for the purpose of acquainting the public as speedily as possible with its contents. I shall proceed as rapidly as possible in my review of the remaining portions of the general Acts which have not already been touched upon; and I hope it is not yet too late to frame a general and comprehensive statute, embracing all the functions of the Board of Works, and regulating the proceedings to be instituted against them, as well as the limits within which their powers should be confined. M. G. Court Papers. NEW ORDERS IN CHANCERY. This day is published, price 3s., by Post, 3s. 6d. THE GENERAL ORDERS OF THE COURT OF Nov. 9.—At the sitting of the court the following Regulation Act, 1950, as amended, and the MASTERS' GENERAL gentlemen were called to the Bar: CHANCERY, dated the 31st of July, 1851, under the Chancery ORDERS under the Act, with Comments and Observations, and showing the Practice as now established in CAUSE PETITIONS; with an Analytical Index. By WILLIAM SMITH, Esq., Barrister.at-Law. Also by the same Author, price 4s., by Post, 4s. 6d., or, bound with the Orders, price 6s., by Post, 6s. 6d. William Moore Johnson, Esq., A.B., T.C.D, only son of the Rev. William Johnson, Rector of Knockevilly in the County Cork; certificate signed by William Cotter Kyle, Esq., LL.D.; proposed by William Brooke, Esq., M.C. William Edward Hearne, Esq., A.B., T.C.D., second THE COURT OF CHANCERY (IRELAND) RE. son of the Rev. William Hearne, of Kildrumferton Glebe, in the County Cavan; certificate signed by William Drury, Esq.; proposed by William Brooke, Esq., M. C. Whitley Stokes, Esq., A. B., T. C. D, eldest son of GULATION ACT, 1850, with PRACTICAL COMMENTS and Crecedents Price 4s. by Post 4s. 6d. William Stokes, of Merrion Square, in the City of Dublin, A DIGEST of the ACT TO AMEND THE LAWS Esq., M. D.; certificate signed by Gerald Fitzgibbon, William Rowan, A.B, T. C.D., eldest son of Rev. Arthur Blenerhassett Rowan, of Belmont, County Kerry; certificate signed by George Blake Hickson, Esq., Q. C.; proposed by the Right Hon the Recorder of Dublin. Henry Oliver Barker, A. B., T. C. D., sixth son of Richard Barker, Esq., late of Gardiner's Row, City of Dublin, deceased; certificate signed by William Crozier, jun., Esq.; proposed by the Right Hon. Judge Torrens. Thomas Brunker, Esq., A B., T. C D, only son of Thomas Brunker, late of Melmore, in the County of Monaghan, deceased; certificate signed by Edmund Hayes, Esq., Q. C., LL. D; proposed by Henry George Hughes, Esq., Q. C. Alexander Lane, Esq., A. B, T. C. D., second son of William Lane, of Newtownlimavady, in the County of Londonderry, Esq, M. D.; certificate signed by Edmund Hayes, Esq., Q. C., LL.D.; proposed by Acheson Lyle, Esq., M.C. Price 38. Boards, by Post 3s. 6d. A COMMENTARY UPON THE 13 VIC. c. 18. AN ACT for the AMENDMENT of PROCESS and PRACTICE in the SUPERIOR COURTS of COMMON LAW in By JOHN BLACKHAM, Esq., Barrister.at.Law, THE PRACTICE OF THE CIVIL BILL COURTS in Ireland. As altered by the statute 14 & 15 Vic. c. 57, with an appendix of several statutes relating to the law between landlord and tenant, and to the law of evidence; with a Commentary, comprising the decisions upon the re-enacted sections of the previous Acts of the Civil Bill code, and the analogous sections of the County Courts Acts, (England) with a copious Index. By JOHN BLACKHAM, Esq., Barrister-at-Law. bs. 6d. which Regulate the QUALIFICATION and REGISTRATION of PARLIAMENTARY VOTERS IN IRELAND, &c., (13 and 14 Vic. c. 69), collected with the more important provisions of former Acts still in force, relating to the subject, with a Copious Index and Forms. By SAMUEL V. PEET, Esq., Barrister-at-Law. LIFE AND LETTERS of JOSEPH STOREY, Associate Justice of the Supreme Court of the United States, and Dane Professor of Law at Harvard University. Edited by his Son, W. W. Storey. In 2 Vols, royal 8vo., cloth, with a Portrait, Original price £1 ts reduced to £1. "It may be a question whether Europe is not premature in reproaching America with living on a borrowed literature. Put, supposing the charge to be well founded in the case of Poetry and Metaphysics, the very opposite is the fact in regard to Jurisprudence. The profession of the law constitutes its real Aristocracy, the Aristocracy of character and talent. We look in vain over the legal literature of England for names to put in comparison with those of Livingstone, Kent, and Storey."-Edinburgh Review, October, 1852. STARKIE'S LAW OF EVIDENCE.-NEW EDITION A PRACTICAL TREATISE of the LAW of EVIDENCE By THOMAS STARKIE, Esq., Q. C. Fourth Just published, 8vo., price Is. ; by post 1s. 6d. THE INCUMBERED ESTATES COURT. SHOULD IT BE CONTINUED? Containing a Reply to "OF SERVATIONS ON THE PEOPLE, THE LAND, AND THE LAW IN 1851." Dublin: EDWARD J. MILLIKEN, 15, College Green. Sold by all Booksellers, All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 17s. Quarterly, 98 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 JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin, Saturday, November 19, 1853. the colonists to resist the aggression were crowned with success; but, as it is easier to oppose a new measure than to abolish a system already well-established, so did Downing-street turn a deaf ear to the outcries of the British antipodes, until the trea It, of course, soon became evident that to send AMONGST the many important measures of the last session of Parliament, not one of the least so was the "Act to substitute in certain cases other punish-sares of their soil at last appeared. ments in lieu of transportation." This enactment may be considered as one of the fruits of the astound-convicts to the gold regions to undergo their probaing revolution in the circumstances of the Australian Colonies caused by the discovery of the Gold Fields. That fair portion of the habitable globe, which the wisdom of our immediate ancestors regarded only as a convenient depot for our criminal outcasts, being the land whence of all others their return was least probable, whilst its natural resources would afford the means of support without foreign supplies, has in our day, unexpectedly proved the richest of nature's storehouses, rivalling, if not far surpassing, the fabled glories of El Dorado. Before the gold discoveries, and while these co lonies were favourably known to us only as the home of an increasing and thriving body of free settlers, who were gradually developing the agricultural and pastoral resources of the country, louder and louder became the clamours of the people against the continuance of the system of transportation, more especially since the abolition of assigned servitude. In the case of the Cape of Good Hope, where an attempt was made a few years since to open a new penal settlement, the combined efforts of 1 tion would be but offering a premium to crime. The result is the 16 & 17 Vic. cap. 99. No person can now (s. 1) be sentenced to transportation, except for life, or for fourteen years or upwards. Sentence of penal servitude is to be awarded in lieu of transportation for less than fourteen years-s. 2. Persons liable to transportation for fourteen years or upwards or for life may still be sentenced to transportation or to penal servitude instead-s. 3. The following graduated scale of punishment is, by section 4, substituted in lieu of the period of transportation to which the offender would, at the passing of the Act, have been liable to: In lieu of transportation for Penal servitude for 4 years. Sing 6 years, exceeding 7 and not exceed-4 and not exceed- for the term of life. ex-6 and not exceed- Persons under rule of penal servitude may, during more than suffice, and it is probable that few but extreme cases will be sent out of this country. We hope that the result of this change will be to make the nation in future look more narrowly to the origin and causes of crime, and consequently to its prevention rather than to its cure and punishment, and that we shall not, in future, content ourselves simply with bauishing from amongst us, as incorrigible, those criminal outcasts of society, whose degradation may in great measure be traced to the hotbeds of depravity within our borders, which our own perversity has fostered. the term of the sentence, be confined in any prison or place of confinement in any part of the United Kingdom, or in any river, port, or harbour of the United Kingdom in which persons under order of transportation may now be confined, or in any other prison in the United Kingdom, or in any port, &c. as one of her Majesty's principal Secretaries of State may from time to time direct; and may, during such term, be kept to hard labour, &c. in all respects as persons sentenced to transportation, while confined-s. 6. The powers of the Secretary of State are in Ire.. land to be exercised by the Lord Lieutenant-s. 8. A very important feature in this Act is the introduction into this country, for the first time, of the "ticket of leave" system. Her Majesty (s. 9,) may grant to any convict sentenced to transportation, or any punishment substituted therefor, a license to be at large in the United kingdom and the Channel Islands, or in such part thereof as shall be expressed in the license, during such portion of his term and upon such conditions as to her Majesty shall seem fit. The license may be revoked at her Majesty's pleasure. The holder of the license is not to be imprisoned, &c., by reason of his sentence ―s. 10; but on its revocation the party may be apprehended and remitted to his original sentence -sec. 11. This novel enactment will introduce a Review. Incumbered Estates Court: Summary of Proceedings from WE congratulate the public in general, and our own new order into this country, a class of men, who, with the external attributes of freedom, are under political and civil incapacity, and liable at the mere discretion of the executive to be reduced to bondage. The experiment is a bold one, and of its success we feel somewhat doubtful, but we hope that the result will be good. Persons convicted of larceny, after previous conviction for felony, are not to be transported, but to undergo penal servitude for not less than four and not exceeding ten years-portance. We have often thought that there were s. 12. The Act is not to affect the Queen's prerogative of mercy-s. 13; and the previous discretion vested in courts as to alternative punishments are not to be affected—s. 14. These are the heads of the principal clauses of this important measure. It will be seen that transportation is not absolutely abolished. There is, however, so wide a discretion given as to punishment as most likely will render the power of ordering the expatriation of convicts eventually obsolete, if the new "penal servitude" works well. At all events transportation is retained but to a very limited extent, for which the existing "penal settlements" of the Southern Ocean will few men who deserved better of their fellow-citizens, and whose labours, nevertheless, were less appreciated, than the compilers of statistics. This is not only a laborious, but a thankless task. It too frequently happens that the writer of a smart pamphlet, who has overdrawn on his imagination for his facts, will gain an infinitely greater amount of popularity, and of substantial reward, than the painstaking investigator and compiler of dry details, whose only aim is to collect and deal in realities. We, fear that it is almost inevitable, for vapid declamation to attract the ear of the public more than dry matter of fact, but a few there will always be, and we hope that their number is on the increase, during which proceedings subsequently brought inwho will prefer facts and figures to mere figures of to the Incumbered Estates Court, had been previspeech. Reverting to the contents of the "Sum-ously pending in Chancery. We find here, that no mary," we think that the highest degree of credit less than 974 suits had been in the grasp of the is due to the intelligent compiler, Mr. Ormsby, for fell hydra, nine of which had remained locked in its the exceedingly lucid manner in which he has ex-iron embrace for over half a century! hibited, in a single broadsheet, the four years' annals of the Incumbered Estates Court. It would be impossible for us, in our limited space, to dwell at length upon the several features of his admirable Digest of the proceedings, by which the enormous sum of £10,430,463 has been rapidly realized through the sale of some million and half acres, and of which amount at least, four-fifths has already been paid over to the claimants. The details have been classified under twelve grand heads or divisions, and have been further subdivided as occasion has called for. One head strikes us as peculiarly interesting, shewing the period We trust that this Synopsis is but the prelude to a further and more complete summary hereafter to appear, when it shall at length be decided by the wisdom of the Legislature, that the tribunal whose "acts and monuments" are now chronicled, has fulfilled its mission, and when its destiny having been accomplished, it yields to its elder and now repentant sister of Chancery, whose once complex machinery has recently undergone so great a simplification, and which, with some additional powers of guaranteeing title, will probably be regarded as thenceforth fully competent for the task of disencumbering the landed property of Ireland. Encumbered Estates Court. CONDITIONAL AND ABSOLUTE ORDERS, FROM THE 1ST OCTOBER. |