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have the fee or merely a life-estate, and when the period for making the conveyance was deferred to the same period, their judgment as to the kind of conveyance was then to be made. Lord Deas expresses an opinion that the trustees might have exercised the power at the date of the heir's marriage. But, with great respect, I think this view cannot be correct. It was evidently the testator's intention that the trustees should exercise their judgment upon a review of the conduct of the heir at the time when the estate was to be conveyed to him. Before that period it is clear that they could not have deprived themselves of the exercise of a future judgment by giving him the fee, and there seems to be no reason why they should have been able to anticipate the time of passing judgment upon the conduct of the heir by restricting him to a life-estate at an earlier period than the age of twenty-five. The heir might have redeemed himself in their estimation by subsequent good conduct. There was apparently no intention that the heir should either have the fee conveyed to him, or that he should be deprived of it by any judgment of the trustees before the period when they were bound to make the conveyance. But the more important questions are, whether it was competent for the trustees to undertake that their power should not be exercised so as to prejudice the rights and interests created by the marriage-settlement to the heir, and if this was within their competency, whether they have or not, in fact, so undertaken. It appears to me that the trustees could not either abandon or fetter the exercise of the power entrusted to them. It was a power coupled with a duty of the most important character. It was evidently intended that it should be retained and freely exercised down to the time when they were called upon to convey the estate. But even assuming that the trustees might have bound themselves not to interfere with the rights and interests created by the marriage-settlement, by giving their consent to it, in point of fact no such consent was ever given. That they consented to the marriage is clearly proved, and this would, of course, prevent their afterwards making it the ground of objection to the conveyance of the fee to the heir. But it is not correct to say that the consent to the marriage carried with it a consent to the marriage-settlement. The trustees' names were designedly omitted as consenting parties to the settlement. But if they had consented to the settlement, it would, in my judgment, have made no difference. All parties knew, or ought to have known, that the provisions of the settlement would only be contingent and conditional, depending upon the conduct of the heir till his age of twenty-five years, and the settlement itself refers to a conveyance of the estate from the trustees, and binds the heir, upon obtaining this conveyance, to complete his feudal title, and to grant the necessary deeds and conveyance for vesting the estate in the trustees under the settlement. On these short grounds I think that the orders are right, and that they ought to be affirmed.

Equity Courts.

[V.C. W.

V. C. WOOD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs.. Barristers-at-Law.

June 20, 21, and 22.

MARTIN v. MARTIN.

Will-Construction—An absolute bequest followed by qualifying words-Intention.

A testator, after directing what, after payment of debts, legacies, &c., should constitute the residue, gave it to trustees, 1. Upon trust that the same should be equally divided, share and share alike, between his nephews and nieces. 2. That the property which he had left to his nephews and nieces should, on their decease severally, be divided equally, share and share alike, between such of their children as might survive them. 3. "And if any or either of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, their share shall be divided equally between their children, and, in default of children, equally between my surviving nephews and nieces:"

Held, that those nephews and nieces who survived the testator took absolute interests:

Held also, that the limitation over before actually receiv ing what was to go to the children, was inoperative in law:

Held, further, that such limitation, although inoperative,
might be used to guide the court to what was the testa-
tator's intention.

of the court as to what interests certain persons,
This was a petition presented to obtain the opinion
nephews and nieces of the testator, after mentioned,
and their children, took in his residuary estate, and
answered by the court as a special case.
it was arranged that it should be considered and

The clauses in the will and codicil of Josiah Martin, dated respectively the 5th July 1842 and 4th Dec. 1845, were the following:

perty of every description, whether real or personal, after It is further my intention and will that all my other proprovision shall have been made in the manner herein before above described for the payment of all my just debts, testamentary and funeral expenses, as well as the legacies, annuities, and payments herein before directed, shall be equally divided, share and share alike, between my nephews and nieces, the children of my late brothers Sir Henry and Sir brother Sir Henry, who has now come into possession of the Byam, except my nephew Sir Henry, the son of my late Greencastle and Rigby estates, in the island of Antigua, which I apprehend will place him in better circumstances than any this exception is, that I may act fairly and impartially to all of my other nephews and nieces. My sole motive in making my nephews and nieces.

And it is my further will that the property, of whatever description, whether real or personal, which by this will I severally, be divided equally, share and share alike, between leave to my nephews and nieces, shall, on their decease such of their children as may survive them, and if either or any of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, that in every such case or cases their share shall be divided equally, share and share alike, between their

Lord KINGSDOWN.-I entirely concur with my children, and in default of children, equally between my surtwo noble and learned friends.

Order affirmed with costs.
Apps.' agents, Domville, Lawrence, and Graham.
Resps.' agents, Dodds and Hendry.

viving nephews and nieces, and the several sums of 20,0001, 2000, and 500% hereby directed to be reserved in the Government securities for the purpose of paying the annuities directed to be paid to my sister Lydia Eliza D'Esteere and Mrs. Leeks shall, on their decease severally, follow the same destination as the property bequeathed to my nephews and nieces prior to the decease of the aforesaid annuitants, viz., shall go to my nephews and nieces in equal shares, and in the same manner as before directed, to such of their children as may survive them.

The clause in the codicil was the following:

I hereby declare that, in consequence of my nephew Sir Henry having relinquished possession of the Greencastle and Rigby property, it is my will that he shall stand in the same situation with respect to my property as all my other nephews as well as nieces do under the preceding will, viz., that not

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withstanding any exception made in the body of the preceding will, he shall be entitled, with regard to my property of every description, to share equally with my other nephews.

The facts were these:-Robert Fanshaw Martin, one of the testator's nephews, died in testator's lifetime without issue.

Testator died on the 5th Dec. 1849. The nephews and nieces who survived the testator were, Sir Henry W. Martin, who died without having had issue on 14th Dec. 1863; Catherine Elizabeth, the widow of the Rev. George May, who had two children, Henry W. May, who attained the age of twenty-one, and Anne May, an infant; Sir W. F. Martin, who had eight children, all infants; Sir Henry Byam Martin, who died in Feb. 1865, not having been married; Lady Catherine Martin, widow of Sir Henry W. Martin; Wilhelmina Martin, spinster; and Elizabeth A. Martin, married to Francis Davies, and died on the 2nd March 1863, leaving four children, three of age and one an infant.

The petition was presented by the nephew, Sir W. F. Martin; the other nephews and nieces, and their respective children, being the resps.

Pemberton, for the petitioner, stated the facts of

the case.

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Re Arrowsmith's Trusts, 2 De G. F. & Jo. 474; 2
L. T. Rep. N. S. 453;

Hitchin v. Mannington, 1 Ves. 366;
Stapleton v. Palmer, 4 Bro. C. C. 490;
Holmes v. Godson, 8 De G. M. & G. 152;
Re Williams, 12 Beav. 317;

Jeffreys v. Reynolds, 6 Bro. P. C. 398;
McLacklan v. Tait, 2 De G. F. & Jo. 449;
Hayward v. James, 28 Beav. 523;
Randfield v. Randfield, 8 H. of L. Cas. 225.

[V.C. W.

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was to go over equally between his surviving nephews and nieces," not "between them and their children." The direction also in the codicil, although not conclusive, was still a continuation of the attempt to express the same absolute form of bequest

as

that which was previously contained in the will. It was that the excluded nephew should stand in the same situation with respect to all his property as all his other nephews and nieces, viz., that he should share equally with his other nephews, No doubt the words "in the same situation" seem ambiguous, but their meaning was sufficiently explained by the words which follow, "to share equally with my other nephews." The first primary gift was clearly to the nephews and nieces. The words which create the whole difficulty were, "I direct that all my property, whether real or personal, which by this my will I leave to my nephews and nieces, shall, on their decease severally, be divided equally, share and share alike, between such of their children as may survive them." This clause standing alone would unquestionably cut down that which before was absolute to an interest in the nephew for life, with remainder to his or her children who might survive him or her. But farther on is this sentence: "And if either or any of my nephews and nieces shonld die before me, or before they shall have actually received what is to go to them under this will, that in any and every such case and cases their shares shall be divided equally, share and share alike, between their children; and in default of children, equally between my nephews and nieces." Now these words, "actually received," do irresistibly declare the intention of the testator. When he said "never receive that share," it presented itself to his mind in two ways: "they may die before me, or, though they may survive me, they may die before the shares are paid over to them." He had no doubt such was in the testator's mind; and, if the law would effect it, operation ought to be given to the clause; but, although the

The arguments are sufficiently referred to in the law will not allow those words to operate, they may V. C.'s judgment.

The VICE-CHANCELLOR (after stating the clauses in the will and codicil, and the facts of the case) said, that in one respect he had felt considerable doubt as to the application of the well-known rule of construction, that where you find a gift in clear and express terms, you are not to allow subsequent and less distinct words to throw a doubt upon the construction of the prior ones. In this case he could not come to the conclusion that the clear express gift to the nephews and nieces was displaced by the subsequent limitation. He must hold that there was a clear gift to the nephews and nieces, and that if there were any substitution at all, it was only to the children of those nephews and nieces who died in the testator's lifetime leaving children. He considered this view was confirmed by the decisions in Harrison v. Forman, 5 Ves. 207; and Campbell v. Brownrigg, 1 Phill. 301. The only question was, how far the subsequent clause had cut down the previous gift with respect to those nephews and nieces who had survived the testator

and had had children? It was not sound reason

ing to say that the limitation which followed after the gift to the nephews and nieces, that "in every and any such case or cases their share shall be divided equally, share and share alike, between their children was to be taken by the court to cut down the absolute gift to the nephews and nieces, because the first and clear gift was that which directed all his personal property to be divided, share and share

yet be used to explain the intention of the testator.
That intention seems to have been, that in the
event, and only in the event, of his nephews and
nieces being out of the way, so as not to be able to
receive absolutely, then it was to go over to their
children; and if none, then over to the surviving
nephews and nieces.
[The V. C. here commented
upon the case of Hutchin v. Mannington, and Lord
Thurlow's dictum therein, and continued:] He
could not adopt Mr. Rolt's construction, that the
words "before they shall have actually received what
is to go to them" signify before they shall have
actually become entitled to what is given to them,
viz., a life-interest in a share which on their death
is to go over to their children. The plain and
manifest intention was that they were to receive the
absolute interest. Then comes what may be called
the settling clause. That clause must be taken as
one entire clause, and the question is, what does it
mean? Did it mean to cut down the absolute
interest given so that the nephews and nieces during
their whole lives, if they had children, were not to
enjoy it absolutely? or were those which follow-
"on their decease, between such of their children
as may survive them; and if either of them shall
die in my lifetime, or before they shall have actually
received what is to go to them, their share shall be
equally divided between their children, and in
default of children then to my surviving nephews
and nieces"-are these words explanatory of that
limitation "on their decease to such of their children
as may survive them?" Is that first expression,

IRELAND.]

Re M'CAY (Solicitor).

[IRELAND.

"on their death to their children," to be taken abso- | which William Hayes or one Obadiah Willans, his lutely, or to be qualified by what follows? One cannot help observing that the clause, "if any or either should die before they shall have actually received what is to go to them," is surplusage in one point of view. For, after the testator had said it was to go over to their children in every event, it was needless for him to have put in that clause about their dying before they shall have actually received, because he thought the words "dying before they shall have actually received" contemplated something different from their dying before the testator; and if that were so-if he was to interpret the former gift as a limitation to them for life, and then to their children, those latter words were complete surplusage. The argument was raised that the language was not applicable to real estate, but was appropriate to a mixed fund of realty and personalty; no doubt attention should be given to that argument, and that the legatees have been receiving rents and profits. Still, if they have been receiving rents, they have been receiving them in such a way as that they could sell the estates the next hour, and receive the purchase-money, and he could not understand those words "before they have actually received what is to go over to them" as meaning anything else than this, that the testator did contemplate that the nephews and nieces would, under the former clause, receive and have in their hands, in some shape or other, the whole fund in such a way as that they might absolutely dispose of it. He could not say that the case was not one of considerable difficulty, but he must consider the scope of the testator's will and intention to be this: "I give it to them absolutely, but there may be events in which it will never reach them: of two events, on which the limitation over depends, death in my life-foot time, and death before they have received the fund, the law says only one can be effective; if they die before me, then it goes over, but in every other case the actual gift prevails." The order, therefore, will be as to

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Costs

May and July 3.

Re M'CAY (Solicitor). (a)

Taxation Solicitors Act Special
circumstances.

A petition for taxation (presented more than twelve
months after the bill of costs was furnished) by one of
two trustees behind the back of his co-trustee :
Refused, although the solicitor had commenced an action
at law against the petitioner alone.

This was a petition under the Solicitors Act, 12 & 18 Viet. c. 53, that it might be referred to one of the taxing masters to tax the bill of costs furnished by William M'Cay, solicitor to William Hayes, the petitioner, and to take an account of credits to

(a) From the Irish Jurist, by permission.

co-trustee, might be entitled, and strike a balance; and that William Hayes and Obadiah Willans might be ordered to pay the amount, if any, which should be found due on such ascertainment, after all credits, within one fortnight after taxation, and to tax the costs of the reference, &c., and that on payment by William Hayes and Obadiah Willans of any balance due by them, William M'Cay might be ordered to hand over to them all deeds and documents in his custody or power belonging to them; and that he might be restrained from proceeding, pending such reference, with an action at law hereafter mentioned brought by him in relation to the said bill of costs. The affidavit of Mr. Hayes stated that he had on behalf of himself and Capt. Willans, as his co-trustee, placed certain deeds, constituting an equitable mortgage, in the hands of Mr. M'Cay, with instructions to look after their interests; and that Mr. M'Cay subsequently instituted proceedings in the Landed Estates Court, and on the 25th Sept. 1864 furnished deponent with a bill of costs on foot of the proceedings, debiting him and his co-trustee with 1407. 3s. 3d.; and on the 21st Jan. 1865 furnished him with two other bills of costs, the one on foot of proceedings in the Landed Estates Court debiting them with 41. 2s. 3d., and the other on foot of proceedings in a bankrupt matter debiting them with 81. 3s. 6d. That deponent applied to Mr. M'Cay not to press for payment until certain funds in the Landed Estates Court should be distributed; and the latter induced him to believe that this would have been acceded to, but that he was afterwards (25th Jan. 1866) furnished with a writ of summons and plaint for recovery of the first bill of costs, without, however, any claim being made on of the others. That Capt. Willans resided at Aldershot, and was the brother-in-law of Mr. M'Cay; and that he had been made no party to the proceedings for recovery of the costs, nor even, as deponent believed, furnished with the bill. Mr. M Cay also filed an affidavit stating that the sum part of which was invested on the security of the equitable mortgage, had been raised under the powers of a marriage-settlement and received by Mr. Hayes alone, Capt. Willans having merely joined in receipt for the sake of conformity. That after receipt of this sum Capt. Willans never in any manner interfered with or controlled the disposal of it, which was altogether managed by Mr. Hayes without the privity or sanction in any way of Capt. Willans; and that the account rendered to the cetteux que trustent was in the handwriting of Mr. Hayes. That Capt. Willans never gave deponent authority to act professionally for him in the matter, but, on the contrary, stated to deponent that Mr. Hayes having lent the money of the equitable mortgage on his own responsibility and without his (Capt. Willans') knowledge or sanction he would not interfere in the matter, but leave it altogether to Mr. Hayes to recover that portion of the trust-fund as he might think proper. That deponent had only been the brother-in-law of Capt. Willans from March 1864; that nearly three and a half years elapsed after the termination of the

proceedings in the Landed Estates Court before the bill was furnished; that application had been made for payment to Mr. Hayes, but without effect; and that proceedings in the action at law had been stayed from time to time at his request on the

understanding that he was about to come to a settle ment. Mr. Hayes filed a further affidavit stating that Captain Willans co-operated in the disposal of the sum lent on mortgage; and that Mr. M'Cay was the solicitor of Capt. Willans, and was aware of the nature of the investments, and had examined the accounts and received the interest on one of the loans. A letter from Mr. M'Cay to Mr. Hayes

IRELAND.] REG. at the prosecution of M'CARTHY v. THE JUSTICEs of the COUNTY CORK. [Ireland.

was put in, in which he admitted having received
an account admitted by the cetteux que trustent.
F. W. Walsh, Q. C., for Mr. Hayes, cited
Morgan on Costs, 320;

Re Strother, 3 K. & J. 518;

Re Nicholson, 3 De G. F. & J. 93, 102;
Lockart v. Hardy, 4 Beav. 224.

Berkeley, Q. C. and Vereker, for Mr. M'Cay, objected that the proceedings were being taken behind the back of Capt. Willans, whom, nevertheless, it was proposed to charge with costs, and cited Morgan's Chancery Orders, 11 med. On the question of special circumstances required (sect. 2) by the Act, he cited

Morgan's Chancery Orders, 19.

complaint of one James Hartnett, which complaint stated the prosecutor, "On the 10th Nov. 1865, at Rahan in said county, did have and keep a certain dog called and being a setting dog, the same not being a whelp under the age of twelve months kept at nurse for persons qualified within the statute in such case made for the having the same, he, the prosecutor, not then having an estate of freehold in his own or his wife's right of the yearly value of 100%, the former currency of Ireland, equal to 921. 6s. 13d. sterling, present currency, or a personal estate of the value of 10007. of said former currency of Ireland, equal to 9237. 1s. 64d. sterling, present currency, nor being a person allowed or licensed thereunto by the justices of the peace of the county of Cork at any general quarter sessions of the peace held for the county where he then lived, nor being in any other manner whatsoever qualified, empowered, licensed, or authorised by law, to have or keep the same for himself or any other person, contrary to the statutes in that case made and provided, whereby he had forfeited the sum of 4l. 128. 34d sterling, present currency." The affidavit then further stated that the complaint came on after a postponement to be heard at Mallow on the 28th Nov.; that the complainant, James Hartnett, swore that on livered, sent, or left with the client, except under the day named in the summons he saw the prosespecial circumstances, to be proved to the satis-cutor, M'Carthy, with a dog and gun on the lands faction of the court or judge to whom the application for such reference shall be made; and no such special circumstance having, in the opinion of the court, been shown according to the cases decided in England, and, amongst others, to the case of Re Strother, 3 K. & J. 518. And it is further ordered that the petitioner do pay to the resp., William Macartney M'Cay, the costs of this motion and

The MASTER of the ROLLS commented strongly upon the injustice of refusing the prayer of the petition, but reserved the question in order to consider the authorities; and on July 3 made the following order:-" It is ordered that no rule be made on the said petition, the bill of costs having been delivered more than twelve months; and having regard to the provision in the statute that no reference to tax shall be made after the expiration of twelve months after the bill of costs shall be de

order."

COURT OF QUEEN'S BENCH. Reported by WILLIAM WOODLOCK, Esq., Barrister-at-Law.

Saturday, May 26.

REG. at the prosecution of JOHN M'CARTHY v.
THE JUSTICES OF THE PEACE IN AND FOR THE
COUNTY OF CORK. (a)

Game laws-Summary jurisdiction of magistrates
“Setting dog"-Statutes 10 Will. 3, c. 8; 27 Geo.
3, c. 35 (Ir.)

Magistrates have no jurisdiction under statutes 10
Will. 3, c. 8; 27 Geo. 3, c. 35 (Ir.), to convict sum-
marily for keeping a “setting dog."

This was a motion to make absolute a conditional order that a writ of certiorari should issue directed to the justices of the peace in and for the county of Cork, to remove into this court, for the purpose of being quashed, all and singular records of conviction of whatsoever trespasses and contempts whereof John McCarthy was, at petty sessions held for the Mallow Petty Sessions district of said county on the 28th Nov. and 12th Dec. 1865, convicted on the complaint of one James Hartnett, for having and keeping a certain dog, on the grounds that the said conviction was made without and in excess of jurisdiction, and that the said conviction was insufficient, and disclosed no offence the subject of summary jurisdiction, or for which justices of the peace at petty sessions had jurisdiction to impose a pecuniary penalty, or the penalty mentioned in the said conviction, and that there was no evidence to

warrant the said conviction.

From the affidavit of the prosecutor it appeared

that he was, on the 17th Nov. 1865, summoned to appear before the justices at petty sessions on the

(a) From the Irish Jurist, by permission.

of Fiddane, and not of Rahan, as stated in the sum-
mons, and that he had seen the dog set. On cross-
examination, however, he admitted that he was
thirty years of age, that he never was the owner of
a pointer, hound, beagle, greyhound, land spaniel,
between any or either of them. The only other
or setting dog, and could not tell the difference
witness examined for the complainant was Capt.
William Harris, who proved that he had on a former
occasion shot over the dog in question, and that he
saw said dog set partridge, but on cross-examina-
tion the said William Harris admitted that he knew
a terrier dog to set partridge, and the said William
Harris would not swear what breed the said dog
was, but admitted that he would not call a terrier a
setting dog. The affidavit of the prosecutor then
stated that the said dog was not a pointer, hound,
beagle, greyhound, or land spaniel, but was a dog
which set game, and was of a species and breed
totally different from either a pointer, hound,
beagle, greyhound, or land spaniel, and he said
that it was not and could not be proved that
the said dog was either a pointer, hound, beagle,
greyhound, or land spaniel. He went on in his
affidavit to say that no evidence was offered by the
complainant that the prosecutor (deft. below) was
not a properly qualified person to have said dog.
The solicitor for the prosecutor submitted that the
justices had no jurisdiction to convict summarily.
The magistrates submitted a case to the law adviser
upon the variance as to place between the summons
and the evidence, but refused, though asked, to
submit the whole case to his opinion; and the law
adviser having given his opinion that the variance
was not material, the magistrates, on the 12th Dec.,
convicted the prosecutor of the offence mentioned in
the summons, and ordered him to pay a fine of
41. 12s. 34d. sterling, to be applied and distributed
according to law, that was to say, 10s. thereof to be
paid to said James Hartnett the informer, and the
remainder thereof to the Crown, the said fine to be
paid within one month from the date of conviction,
and in default of payment of said sum, to be levied
by distress and sale of the deft.'s (below) goods if
need were. The prosecutor then went on to say
that before and at the time of the alleged offence he
was duly licensed by the excise to kill game, and
that at the time of the said alleged offence he was
merely walking over his own lands with said dog
and gun at Fiddane aforesaid.

IRELAND.]

THE IDA V. THE WASA OF NICOLAISTadt.

William Johnson for the prosecutor.-The conviction for keeping a setting dog is not good, as the magistrates have no summary jurisdiction in that case. The question turns on the statutes 10 Will. 3, c. 8, and the 27 Geo. 3, c. 35. The second section of the first-mentioned Act provides that "no person or persons whatsoever, not having an estate of freehold in his own or his wife's right of the yearly value of 40%. at the least, or a personal estate of the value of 10007. at least over and above all debts by him owing either for himself or as a servant to any other, unless he be such servant, as hath no other way of livelihood for his wages from such person, have or keep any hound, beagle, greyhound, or land spaniel within this kingdom, other than and except whelps under the age of twelve months, which shall be kept at nurse for persons qualified within this Act for the having the same, on pain that such hound, beagle, greyhound, or spaniel so kept contrary hereunto, shall or may be seized or taken away by any justice of the peace of the respective counties where the same shall be so kept, or by any person or persons authorised thereunto by warrant under the hand and seal of such justice of the peace, or by any person having a freehold of the yearly value of 301. or upwards within such county, which justice of the peace and freeholder respectively seizing such hound, beagle, greyhound, or spaniel, may detain the same to his and their own uses, or otherwise dispose of the same as they shall think fit; and all and every person or persons so keeping such hound, beagle, greyhound, or spaniel contrary hereunto, and being thereof convict before some justice of the peace of the county where such offence shall be committed, on the oath of one or more credible witness or witnesses, which oath such justice of the peace is hereby authorised to administer, shall for every such offence forfeit and lose the sum of 5, to be levied by warrant of such justice of the peace before whom such offender shall be convict, by distress and sale of the goods of such offender, returning the overplus (if any be) to the party distrained on-the one moiety thereof to the informer who shall prosecute for the same, the other moiety to be issued for the use of the poor of the parish where such offence shall be committed." That section specifies certain dogs, among which "setting dogs" are not included. Then sect. 10 of the same Act enacts "that no person or persons not having an estate of freehold of the yearly value of 100%. or upwards, or a personal estate of the value of 10007., shall have or keep any setting dog or bitch, other than such person or persons as shall be allowed and licensed thereunto by the justices of the peace of the county where he shall live, at the general quarter sessions of the peace to be held for such county next after Christmas in every year in order to the making and training up setting dogs or bitches, and that under such regulations only, and not otherwise, as shall be allowed and specified in such licence." The 20th section keeps up the distinction between different classes of dogs. It provides that nothing herein contained shall restrain any person within any manor from keeping hounds, beagles, greyhounds, spaniels, or setting dogs within the same to hunt, course, set with, or otherwise use in such manor," &c. Under this statute the justices have no power to convict summarily. If the matter violated be of private right, the party injured may bring his action; if of public right, the party is guilty of a misdemeanor, and may be indicted: (2 Inst. pp. 131, 165.) "Whensoever anything is prohibited by a statute, the party grieved shall have his action upon the statute, and the offender shall be for his contempt fined and imprisoned." Then stat. 27 Geo. 3, c. 35, s. 8, recites that by the 10th

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[IRELAND.

section of the 10 Will. 3, c. 8, "it is enacted that no person or persons shall have or keep any setting dog or bitch under the qualifications and regulations therein particularly mentioned;" and it enacts "that no person or persons shall have or keep any pointer, hound, beagle, greyhound, or land spaniel, other than and except such person or persons as by the said Act may have or keep any setting dog or bitch, and under and subject to the same qualifications, regulations, and penalties." But there is no penalty named in the Act of Will. 3 for keeping a "setting dog or bitch." The conviction here merely states that the party did keep a setting dog. and, that being so, the only jurisdiction which the magistrates had was to take informations and send them forward.

Heron, Q. C. for the prosecutor below, contra, to support the conviction-Some effect must be given to the concluding words of sect. 8 of stat. 27 Geo. 3, c. 35, and the best way to do it is by extending the penalty given in sect. 2 of stat. 10, Will. 3, cap. 8, to the case of a setting dog mentioned in sect. 10. [FITZGERALD, J.-Surely the section of the Act of Geo. 3 does not alter the law as to setting dogs, whatever it may do as to others.] Mr. Longfield, in his book on the Game Laws, p. 31, puts the construction which I contend for on these Acts. [O'BRIEN, J.-Mr. Levinge, in his book on the Game Laws, expresses an opinion the other way.] The effect of the 8th section of 27 Geo. 3, is to put the animals mentioned in the 10th section of the 10 Will. 3 under the same sanction as those mentioned in sect. 8 of 27 Geo. 3. All are put together under the same qualifications and penalties. [O'BRIEN, J.-All are put under the same qualifications and penalties, but those are the qualifications and penalties given in the case of setting dogs.] Then, the effect will be that the penalties given in sect. 2 of 10 Will. 3, vanish altogether. [FITZGERALD, J.-I do not see the difficulty of holding that the Act of 27 Geo. 3 intended to place the dogs mentioned in it under the same qualifications

as those mentioned in sect. 10 of the 10 Will. 3. The stat. 27 Geo. 3, s. 10, does not alter the law as to setting dogs, but it says as to the other dogs mentioned in it that no one shall keep them except those qualified to keep setting dogs.] I say that as the qualifications are the same for both classes of dogs, so the penalties should be the same.

The COURT held that the certiorari should go; the order was made by consent to bring up the conviction and quash it without further argument, and the prosecutor was declared entitled to his costs.

ADMIRALTY COURT, IRELAND.

Dublin, Saturday, March 3.

(Before KELLY, J.)

THE IDA V. THE WASA OF NICOLAISTADT.

Rules of the road-Construction of Admiralty
regulations.

It is a general rule in the navigation of the seas that there is nothing in the Admiralty rules of the road, as laid down, which will exonerate any ship or her officers or crew from the consequences of any neglect or want of precaution required by the ordinary practice of seamen, or by the special circumstances of the case, and the Court of Admiralty will hold any ship to blame which, insisting on her right under any Admiralty rule of not giving way, makes no effort to prevent a collision, where she could have done so had she given way.

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