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T Tenant-for-Life-Reversionary fund ; apportion
ment; marriage settlement ; rule in Howe v. Lord Dartmouth. In re Van rauben zee.
Boustead v. Cooper Tolls-Navigable river ; right to take tolls ; duty
to keep locks in repair ; charters ; validity ; Act for Preserving and Improving the Navigation of the River Ouse, 1719 (6 Geo. I., c. 29).
The Attorney-General v. Simpson Trade Name-Passing off goods ; deception ;
person trading in his own name ; form of in
junction. J. & J. Cash v. Cash Trade Union
Action against in registered name ; not
maintainable. Taff Vale Railway v. Amalgamated Society of Railway Servants and
others Tea clearing-house ; expulsion of member ;
benefit ; injunction ; right to sue ; jurisdiction ; Trade Union Act, 1871 (34 & 35 Vict., c. 31), s. 4, sub-s. (1); Trade Union Act Amendment Act, 1876 (39 & 40 Vict., c. 22), s. 16. Chamberlain's Wharf v. Smith
before justices ; time ; Vaccination Act, 1867
510 Vendor and Purchaser
Assurance prepared at purchaser's expense ;
costs of concurrence of mortgagee ; con-
15 Conditions ; power to rescind; rescission
after litigation; costs. In re Spindler
202 Conveyance; implied covenants for title ;
covenant for right to convey ; undisclosed
457 Deposit ; lien. Whitbread & Co. v. Watt 224 Mortgage ; payment off ; reconveyance ; con
struction ; premises • to” mortgagor ;
re Ethell & Mitchells' and Butlers' Contract 429 Sale by court ; defect of title ; mutual mis
Accumulation; keeping on foot policy as
security against depreciation in value of
415 Administration ; insufficient personalty for
payment of debts ; specific bequest; mem-
re Maddock. Llewelyn v. Washington 489 Bequest for repair of tomb ; " longest period
allowed by law"; twenty-one years from
perpetuity. In re Moore. Prior v. Moore 203 Charitable bequest ; object partly illegal ;
trust to repair tomb out of income of fund;
416 Construction; condition; charity ; Mort
main and Charitable Uses Act, 1888 (51 &
Fladgate v. The Vintners' Company 158
or only son for the time being entitled to
213 Construction ; gift to a class ; gift to “ A. and
the children of B.” equally. Kingsbury v.
416 Construction ; specific devise ; failure ; resi
duary devise ; restriction as to tenure ;
488 Gift to corps of commissionaires ; charity ;
perpetuity. In re Clarke. Clarke v. Clarke 357 Residue ; contingent gift ; intermediate
income. In re Taylor; Smart v. Taylor 373 Specific legacy ; ademption. In re Smith
Marriott. Smith-Marriott Stoughton 448
sonalty ; subject to be invested in the
his life time ; validity ; Fines and Re.
500 “ Testamentary expenses. ; estate duty ; real
estate ; Finance Act, 1894 (57 & 58 Vict.,
Printed and Published by the Proprietor, John FALCONER, 53 Upper Sackville-street, Dublin.
AND SOLICITORS' JOURNAL.
THE RECTIFICATION OF VOLUNTAR
THE circumstances under which the Cou LEADER
1 The Rectification of Voluntary Settlements
Chancery will rectify a voluntary settlement. Echoes of the Courts
the principles which guide the Courts in Laws Coming into Force on 1st January
rectification, have been the subject of recent Practical Points on Local Government Law Moral Compromise in the Law
sideration, both in England and Ireland. Disqualification of Councillors Advisory Opinions of the Judges of England
JIMeehan v. Warburton (1896), 1 Ir. R. 435, a
10 The Recent Irish Convention and the Law
10 Rifle Ranges
was instituted against the administrator of
settlor, for the rectification of a voluntary deed Irish Failures, Judgments, and Bills of Sale
13 Payment of Premiums by Trustees
including therein certain premises which, by
13 Charging Orders for Costs
14 take and inadvertence on the part of the solicito Notes of English Cases REVIEWS
the settlor, had been omitted from the opera
10 The Tithe Rent-charge (Ireland) Act, 1900, &".
16 The Companies Act, 1900, &C....
part of the settlement, and which omissions
17 Books Received
contrary to the express instructions of the set
17 Appointments and Promotions
and without her knowledge at the time of execu COURT PAPERSLand Judges
or afterwards. It was urged on behalf of Parliamentary Elections and the Corrupt avd Illegal Practices Prevention Act, 1883
17 defendant that, as the Court would not enfc Trap Accident to a Solicitor's Son
specific performance in favour of a volunteer, neit The Costs of the Concurrence of Mortgagees in a Con
should it rectify the deed in question at the insta BIRTHS, MARRIAGES, AND DEATHS
of a volunteer, and in dealing with this content
the learned Vice-Chancellor says---" It was DIGEST OF CASES REPORTED THIS WEEK.
tended by the defendant, Warburton, that, as t
was a voluntary deed, this Court cannot interfere IN THE IRISU LAW TIMES AND SOLICITORS' JOURNAL.
rectify it in favour of volunteers. The eleinenta BUILDING SOCIETY- Withdrawal of members-Con
principle of this Court, that it will not interfere struction of rules-- Winding-up--Priorities--Executor of
enforce specific performance of an incomplete volo deceased member_" Set-off." In re The Counties
tary agreement, or to rectify an erroneous volunta Conservative Permanent Benefit Building Society.
disposition of property in favour of a volunteer, Davis v. Norton
subject to this exception, that after the death of t COSTS-Solicitor mortgagee–Foreclosure judgment in
donor it will interfere to rectify a dispositi 1893 – Profit-costs Taxatioa in 1898-Mortgagees'
which is clearly proved to have, through m Legal Costs Act, 1895 (58 & 59 Vict., c. 25), 8. 3.
take, failed to carry out the proved intentio Day . Kelland
The principle is, I think, more correctly stated by co
fining it to this, that the Court will not recti PATENT-Account of projits—Disclosure of names of a voluntary disposition against the donor. That
purchasers of goods. The Saccharin Corporation ". will do so in favour of a donor is shown by the cas The Chemicals and Drugs Company
of Lackersteen v. Lackersteen, 30 L. J. Ch. (N. S.) PRACTICE — Evidence - Affidarit Information and
where a voluntary settlement was rectified b belief-Statement as to source thereof-Liability to costs
Wood, V.-Ch., at the instance of the settlor. Th for omitting such statement-Rules of Supreme Court,
explains the view taken by Romilly, M.R., i 1883, Order XXXVIII., rule 3.
Lister v. Hodgson, L. R. 4 Eq. 34, where he state In re The J. L.
the exception I have mentioned, fn case of Young Manufacturing Compacy (Lim.). Young 1. deceased donor, that upon clear proof of the in The J. L. Young Manufacturing Company (Lim.) tention of the donor, which, by mistake, wa
not carried out by the instrument of gift according REVENUE--Settlement estate duty-Incidence-Continyent to such intention, this Court will interfere to correc legacies and annuities--Finance Act, 1894(57 & 58 l'ict.,
the mistake, and thus act in favour of the intention r. 30), s. 5. In re The Duke of St. Albans (deceased).
If the donor were living, it would have, of course Loder v. The Duke of St. Albans
been competent for him to consent to such rectifiVENDOR AND PURCHASER-Assurance prepared at
cation, or to dissent from it. If the latter, it could pnrchaser's expense--Costs of concurrence of mort
not be reformed against his will, for a volunteer
must take the gift as he finds it; but after his death, gagee-Conditions of sale. In re Sanders and Walford's and in absence of proof of any change of intention, Contract
it cannot be assumed that he would have dissented,
and it might even be presumed that he would not dissent." That decision was subsequently affirmed in the Court of Appea.l.
Now in England the most recent case on the subject is Weir v. Van Tromp, 16 Times L. R. 531; there Byrne, J., thus states the law" Although a voluntary settlement may be reformed at the instance of the settlor in a proper case, the Court will not interfere to reform a voluntary settlement as against the settlor, but it was laid down by Lord Romilly, in Lister v. Hodgson, that there is this distinction to be taken. If a man executes a voluntary deed in his lifetime declaring certain trusts, and happens to die, and it is afterwards proved from the instructions or otherwise that, beyond all doubt, the deed was not prepared in the exact manner which he intended, the deed may be reformed, or those particular provisions necessary to carry his intentions into effect may be introduced ; and in Thompson v. Whitmore, 1 J. & H. 268, Vice-Chancellor Sir Page Wood, at p. 273, clearly recognised the right of a volunteer to have the error rectified.”
erection of chapels on burial grounds, and the fees of incumbents, wbile it transfers various powers under seven preceding Burial Acts from the principal Secretary of State to the Local Government Board. The Acts which apply exclusively to Ireland, and are inoperative until the later months of the New Year-excepting, of course, the Census Act, which comes into operation in March next-are ten in pumber-namely, Public Health, County Surveyors, Charitable Loan Societies, Beer Retailers and Spirit Grocers Retail Licences, Local Government (No. 2), Intermediate Education, Poor Relief, Tithe Rent-charge, Tramways, and Local Government. The Isle of Man has passed a Customs Act and a superannuation enactment for the school teachers of the island. The Merchant Shipping (Liability of Owners and others), Oil in Tobacco, the Money Lenders, the Naval Reserve, the Military Laws, Colonial Stock, Public Works Loans, and the Housing of the Working Classes Acts are among the more important enactments for effecting much-needed reforms that await enforcement in the course of the ensuing year.
PRACTICAL POINTS ON LOCAL GOVERNMENT
Nore.--Before relying on these English questions and answers, great cantion must be exercised, as sometimes the various statutes cited and relied on do not apply to Ireland where no similar provision exists.-H. M. F., ED.
ECHOES OF THE COURTS. Lord Roberts has accepted an invitation to dine at the Middle Temple on Grand Day, January 29th.
His Honor Judge O'Connor Morris has an article in the current Fortnightly Review on Lord Rosebery's “ Napoleon.”
The only Irish legal name among the recipients of New Year's Honours is that of Mr. R. O'Brien Furlong, Solicitor to the Inland Revenue, and member of the Irish Bar; he is made a C.B., on which deserved honour we congratulate him.
The fee book of Daniel O'Connell has been secured by the Trustees of the National Library in Dublin. From it we learn that in 1779, bis first year at the Irish Bar, he received in fees £55 148, 9d., and the fees increased in amount rapidly, till in 1814 they amounted to nearly £4,000.
Poor Law--- Guardian-Disqualified-fering himself for
re-election. A guardian of this union, having supplied goods to the workhouse, has been disqualified from further serving as such, in accordance with the provisions of the Local Government Act, 1894, s. 46, and such guardian has accordingly ceased to act.
A casual vacancy has thus been created, for which the said guardiano intends to offer himself for reelection. This said guardian was elected in April last for a term of three years. (In this union one-third only of the guardians retiring annually.)
Will you kiudly say whether, in your opinion, (1) this guardian may be validly nominated and re-elected; or (2) whether the period of disqualification is for the remainder of the term of office for which he was originally elected- viz., up to April, 1903; or (3) for what period the disqualification Jasts; or (4) does the simple act of retiring upon being disqualified purge the offence ?
Answer. If bis interest in the contra or bargain under which he supplied the goods has ceased, he is qualified to be re-elected. Section 46 of the Local Government Act, 1894—- which is the governing section-deals with persons disqualified at the time of election, or becom. ing disqualified after election, and while still member, The interest in the contract continues only so long as the contract itself exists; so that if the guardian's interest has ceased his disqualification has ceased. He may, therefore, be validly nominated and re-elected to fill the casual vacancy caused by bis owa retirement. If he acted when disqualified, he is liable for the penalty prescribed by section 46 (8).
[Note up on p. 23 of FitzGibbon and Johnston's Law of Local Government in Ireland.]
LAWS COMING INTO FORCE ON 1st JANUARY.
Although no less than sixty-three public Acts were passed in the last regular session of Parliament (63 & 64 Victoria), only seven of these came into operation on Tuesday last, the 1st January. The Acts are, taking them in the order of their importance, the Companies, the Agricultural Holdings, the Colonial Solicitors, the Burial, Veterinary Surgeons' Amendment, the Ecclesiastical Assessments (Scotland), and the Town Councils (Scotland) enactments. The Companies Act, which applies to Ireland and Scotland as well as to England and Wales, is intended to protect the investing public from fraud on the part of unscrupulous and reckless promoters of limited liability compavies. The Agri. cultural Holdings Act has been passed in order to simplify the procedure for the assessment of compen. sation in England by providing for a reference to a single arbitrator. The Colonial Solicitors Act is a great concession to solicitors in any British colony to which the Act may be applied by an Order in Council. Colonial solicitors may be admitted to practice in Ireland—that is to say, if, in the words of the Act, the regulations as to the qualifications of the solicitor in the colony are calculated to secure professional competency, and Irish solicitors are admitted to practice in the same colony. The Burial Act (English) sanctions changes in regard to the consecration of burial grounds, the
Poor Law - Cluk to guardians and solicilor - Conducting
proceedings. Can a clerk to guardians, who is not a solicitor, claim the right to conduct the proceedings in a county court on behalf of his board in a claim for arrears of contributions due from a relative of a pauper towards his maintenance (see 7 & 8 Vict., c. 181, s. 68, also 23 & 21
Vict., c. 137, s. 33), or is his right confined only to pro ceedings before justices at petty or special sessions or out of sessions ?
Answer, A clerk who is not a solicitor has no right of audience to appear on behalf of his guardians to conduct pro. ceedings in a county court. His right of audience is confined to justices other than sitting in quarter sessions.
[Note up on p. 119 of FitzGibbon and Johnston's Law of Local Government in Ireland.]
MARKET AND FAIR-Feast-Urban council altering dute of
holding. A feast which is old-established, but apparently not established by any statutory provision, is held for three days in a small urban district. l'here is no fair, the feast being merely observed as a holiday, and the usual shows, roundabouts, &c., in attendance. The feast is marked in the year-books and calendars. The date of the commencement is governed by a Saints' Day. The days of the feast being Monday and Tuesday and Wednesday after the Saiuts' Day, which causes the days of feast to fluctuate. It has been suguested that it would be well to have the days of the feast fixed by the day of the month. Have the council power to make the alteration ? If so, in what manuer should the alteration be made ?
Ansicer. The district council have no statutory rights to alter the date under the general law. If the alteration can be done by arrangement, the council may negotiate; but if it has to be done compulsorily they have no power.
(Note upon p. 50 of FitzGibbon and Johnston's Law of Local Government in Ireland. ]
NECESSITY OF THE PROFESSION OF ADVOCATE. Few members of the Legal Profession will quarrel with the accura_y and fairness of the following state
“In the interests of the proper administration of justice it is uf the utmozt importance that every cause however defective and every criminal howerer bad should be fully defended, and it is therefore indispensable that there should be class of intrusted with this duty. It is the business of the judge and jury to decide on the merits of the case, but, in order that they should discharge this fumurion, it is necessary that the arguments of both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honour and etiquette is fornied for the purpose of regulating the action of the advocate. Visstatements of fact or of law, mis. quotations of documents, strong expressions of personal opinion, some other devices by which verdicts may be won
are condemned; there are cases which an honourable lawyer will not adopt, and there are rare cases in which in the course of a trial he will find it his duty to throw up his brief” (p. 101). " THE INEVITABLE TEMPTATIONS OF THE PROFESSION."
Mr. Lecky's description of the temptations to which he thinks an advocate must inevitably succumb cannot fail to be regarded as overtrawn and inaccurate by persons with practical experience at the Bars of these countries.
"It is idle," writes Mr. Lecky, “to suppose that à master of the art of advocacy will merely confine himself to
a calm, dispassionate statement of the facts and arguments of his side. He will inevitably use all his powers of rhetoric and persuasion to make the cause for which he holds a brief appear to be true, although he knows it to be false; he will affect a warmth which he does not feel and a conviction which he does not hold; he will skilfully avail himself of any mistake or omission of his opponent, of any technical rule which will exclude damaging evidence, of all the resources that legal subtlety and severe cross-examination can furnish to conture dangerous issues or obscure or minimise inconvenient facts to discredit hostile witnesses, He will appeal to every prejudice that can help his cause; he will for the time so completely identify himself with it that he will make its success his supreme and all-absorbing object, and he will hardly fail to feel some thrill of triumph if by the force of ingenious and eloquent pleading he has saved the guilty from his punishment or snatched a verdict in defiance of evidence” (p. 102).
The popular prejudices against the Profession of the Bar could scarcely be more forcibly or picturesquely stated. The severity of dir. Lecky's tone might, however, be much softened and qualified by the reflections of anothier eminent moralist and metaphysician
learned in the law" on the weakness to which great advocates are subject. Mr. Arthur Balfour, referring in debate in the House of Commons, so recently as the 19th Oct., to Sir Edward Clarke, said that he was told that eminent lawyer had “a peculiarity which greatly increases his efficiency as a counsel. » " My hon. and learned friend,” continued Mir. Balfour, “ whom I gladly recognise usually resists the temptations which beset the great Profession of which he is an ornament, does, I am informed, always passionately believe in the case which for the moment he happens to have taken up, and nothing will convince him, not even the verdict of the judge and jury, that he has been mistaken in the views he has entertained": (Times, the 20th Oct., 1899).
If the criticisins of Mr. Lecky are to be acceptai subject to Mr. Balfour's theory that eminent advocates "believe passionately” in the cases in which they are retained, the charges advanced against the profession of the dvocate are deprived of much of their moral
MORAL COMPROMISE IN THE LAW.* Mr. Lecky's new work is one of the most brilliant productions of his highly-gifted and richly-stored mind. The author of the History of European Morals and of Rationalism has embodied the result of his researches in the domain of ethies in a book which, in the narrow compass of 488 pages, takes a survey of the thoughts, motives and actions of civilised mankind.
One corner of the comprehensive area over which Mr. Lecky has travelled must have a peculiar interest to the members of the Legal Profession. Under the heading “Moral (ompromise in the Law" Mr. Lecky, within the limits of a dozen pages, discusses, among other topics, what advocates may and may not do, how far a lawyer may support a bad cause, the distinction between the etiquette of prosecution and defence, the licence of cross-examination, the defeat of justice by technicalities, and the advantages of trial by jury.
Mr. Leky, although he repeats, takes care dissociate himself from the wholesale condemnation of the profession of an advocate by Swift, Arnold, Macaulay, and Bentham (p. 102). While he admits that “the phrase "moral compromise' has an evil sound, that it opens out questions of practical ethics which are very difficult and very dangerous (p. 83), and that the element of moral compromise must enter into the profession of an advocate” (p. 101), he does not condemn that profession, but unreservedly acknowledges that its “existence and the prescribed methods of its action are in the long run indispensable to the honest administration of justice.”
* The Map of Life Conduct and Character. By William Edward Hartpole Lecky. Longmans, Green & Co, London, New York, and Bombay. 1999.
obliquity. But are these charges true? No one with Mr. Lecky, while giving his approval to this position, any experience at the Bar can, we maintain, with any does not pause to relate the grounds for its support. regard to his word say that the description given These grounds have been admirably stated by Mr. by Mr. Lecky of the moral position of an advocate Basil Montague in a little work entitled The Barrister, is accurate.
and by Mr. (Lord) Erskine in his defence of Thomas Many veirs ago the duties of coursel as - ministers
Paine. “ In general, writes Mr. Montague, "the of justice acting in aid of the judge before whom they barrister does not exercise any discretion as to the practise” were thus beautifully enunciated by Lord suitor for whom he is to plead. If a barrister were Langdale as Master of the Rolls:
permitted to exercise any discretion as to the client for
whom he will plead, the course of justice would be "With respect to the task which I may be considered
interrupted by prejudice to the suitor and the exclusion to have imposed upon counsel, I wish to observe that
of integrity from the Profession. The suitor would be it arises from the confidence which long experience induces me to repose in them, and from a sense which
prejudiced in proportion to the respectability of the
advocate who had shrunk from his defence, and the I entertain of the truly honourable and important
weight of the character of the counsel would be services which they constantly perform as ministers of
evidence in the cause. Integrity would be excluded justice acting in aid of the judge before whom they
from the Profession, as the counsel would necessarily practise. No counsel supposes himself to be the mere
be associated with the cause of his client. advocate or agent of his client to gain a victory if he can on il particular occasion. The zeal and the · From the moment," said Erskine, “that any idroarguments of every counsel knowing what is due to cate can be permitted to say that he will or will not himself and his honourable profession are qualified by
stand between the Crown and the subject arra igned considerations affecting the general interests of jus
in the court where he daily sits to practise, from thar tice”: (Hutchinson v. Stephens, 1 Keen's Reports,
moment the liberties of England are at an end. 669).
the advocate refuses to defend from what he may think A generation later Sir Fitzjames Stephen, “no
of the charge or of the defence he assumes the character doubt," to use his own words, “prejudiced in favour of
of the judge, maybe assumes it before the hour of a system in the administration of which a great part judgment, and in proportion to his worth and repuof my life has been passed,” thus demolishes by tation puts the heavy influence of perhaps a mistaken anticipation Mr. Lecky's strictures : “ The action of opinion into the scale against the accused in whose a judge who warns counsel that he is going beyond the favour the benevolent principle of the English law limits assigned to him, either by trying to intimidate
makes all presumptions, and which commands the very a jury or by attempting to induce them to break judge to be lis commsel. Our advocate, therefore, does the law from motives of prejudice, or by making
not exercise any discretion; to him it is a matter of suggestions which the evidence does not warrant, is
indifference whether he appears for the most unfortunate never, in my experience, unpopular among those with or the most prosperous member of the community, whom the judge wishes to be on good terms, namely,
for the poorest bankrupt or the noblest peer of the the members of his own profession. The barrister's realm, for a traitor or for the king. province is singularly well defined. It is to say for DISTINCTION BETWEEN THE ETIQUETTE OF PROSECUTION his client whatever, upon the evidence, it is by law
ANT) OF DEFENCE. open to him to say, and which lie thinks likely to be advantageous. The judge's province is equally
Mr. Lecky, founding his observations on an exposition well defined.
of the subject in Sir Fitzjames Stephen's General View It is to prevent misstatements of fact
of the Criminal Law of England, which was published and attempts to intimidate or mislead the jury": (History of the Criminal Law of England, vol. 1, pp. 452-453).
" In criminal prosecutions a remarkable, though very Nowhere, indeed, have the duties of the advocate explicable, distinction is drawn between the prosecutor been more clearly defined than by the late Lord Chief and the defender. It is the etiquette of the Profession Justice, Sir Alexander Cockburn, in his charge to that the former is bound to aim only at truth, neither the jury in the Tichborne (ase : “ The arms, said straining any point against the prisoner nor keeping the Lord Chief Justice, which an advocate wields le back any fact which is favourable to him, nor using should use as a warrior, not as an assassin.
any argument which he does not himself believe to be to uphold the interests of his client per fas, but not just. The defender, however, is not bound according per nefax He ought to know how to reconcile the to professional etiquette by any such rules. He may interests of lis client with the eternal interests of use arguments which he knows to be bad, conceal or truth and justice.
shut out by technical objections facts that will tell
against his client, ind, subject to some wide and vague How FAR A LAWYER MAY SUPPORT A BAD CASE. restrictions, he must make the acquittal of his client
the first object" (p. 106). Mr. Lecky seems to approve of the practice which precludes a barrister from declining to appear in a case
We have previously shown that the restrictions to
which advocates at the English Bar are subject in unless he be satisfied that the merits are with his
the conduct of cases are neither "wide nor vague, client.
but well known and for all practical purposes precisely • There have been, writes Mr. Lecky. “and per defined. Mr. Lecky's account of the practice of haps still are, instances of lawyers endeavouring to limit counsel for the Crown and prosecuting counsel in their practice to cases which they believed to be just. general is accurate so far as it applies to England. In Sir Matthew Hale is a conspicuous example, but he Ireland the belief is widespread in the public mind acknowledged that he considerably relaxed this rule on that prosecuting counsel strain every nerve to secure the subject, having found in two instances that the a conviction. To the prevalence of this belief must cases which at the first blushi seemed very worthless be ascribed the non-extension to Ireland of the recent were in truth well founded. As a general rule, reform in criminal jurisprudence by which the accused English lawyers make no discrimination on this ground in it criminal case and the wife or husband of the accused in accepting briefs unless the injustice is very flagrant, have been rendered competent witnesses. The distincnor will they, except in very extreme cases, do their tion in this respect between the practice in England and client the great injury of throwing up a brief which in Ireland in conducting prosecutions was the subject they have once accepted. They contend that by of notice in the House of Commons. acting in this way the administration of justice in On the second reading of the Criminal Evidence the long run at least is best secured, and in this Bill, on the 22nd Mirchi. 1888, the present Lord Chief fact they find its justification" (PP. 105-106).
Justice of England and Land James of Hereford felt
in 1863, says: