MACFARLANE v MURNIN. From the Sydney Empire January 9.

Daily Southern Cross, Volume XVII, Issue 1295, 10 February 1860, Page 2

MACFARLANE v MURNIN. From the Sydney Empire January 9.

Among the extraordinary instances of popular delusion which prevail in the present day, there is not a more unfounded one than the hallucination of the people of New youth Wales when they imagine themselves in possession of the benefit of trial by Jury. Trial by jury in civil action — startling as the assertion in ay seem to those who have paid little attention to the matter — has no practical existence in this city. "It still retains its place in theory ; but, except indeed as a mere legal and almost useless ceremony, it has fallen into comparative desuetude ; and a jury promises soon to occupy much the same position for any piactical purpose as was lately fulled by the venerable names of John Doe and Richard Eoe. The functions of jurora have been usurped by the judge. Their \erdicts, instead of being enfoiced, are piactically ignored on all occasions. It is true that as a, matter of form the bolemu farce is still gone through of swearing m a dozen good men and true, on trials in the Supreme Court, "to give true verdicts according to the evidence." It is trile, that, during the year which has just closed, 1144 special jurors were summoned to attend at the temple of justice, at the top of King-street. It is true that those who weic impannelled sat patiently day after day, listening to the arguments and evidence in the causes before them — bifting and weighing the matters deposed to on either side, with as much attention and anxiety as if the issue of the case really depended on their decision — and giving their verdicts accordingly. This, no doubt, accounts to some extent for |the delusion which we have above referred to. But it is not true that, as a general mle, these verdicts have any effect whatever on the ultimate decision of the case. A few instances could, no doubt, be produced by an industrious ly inclined advocate of the present system, where, after the delivery of a verdict, no further legal steps had been, taken by the losing party. But such cases are exceptional, and are, probably, mostly the result of want of means to fee attorneys and councel to carry the matter further. Where the means and the will exist — which they seem to do in a vast majority of cases, — most assuredly there will be no obstacle thrown in the way by the Court. Rather the reverse. Every inducement is held out to parties to a suit to continue, so long as their means will allow, the interesting process of ruining each other. When this very satisfactory consummation has been achieved, on one side or both, the case of course ends. The legal combatants are compelled to give in from sheer exhaustion All this must be very satisfactory to the gentlemen in horse-hair wigs. They cannot be expected to complain of the matter. They are very much in the position of the boys in* the fable — it may be death to the frogs but it is good fun to them. We have no wish whatever to cast blame on them. They simply do as others would do if placed in a like position. They cannot be expected to go out of their way to injure their own interests. They are not answerable for the state of thing which exists ; but they cannot be blind to the fact, that that state of things is disgraceful alike to the intelligence and the character of the community of which they form aby no means unimportant section. But, bad as the system is in most respects, it has one merit, and that merit, in legal eyes, hides a multitude of sins. It is profitable to the profession. Who then, it will be asked, is to blame for the deplorable^ state of thing 3 at which it appears we have arrived? Who is to blame for the positive denial of justice which it involves ' Who is to blame for the poverty and distress it has brought and is still bringing on scores of suitors and their families ? Who is to blame for the diegiace it is bringing on this community in the eyes of the neighbouring colonies and of England? Who is to blame for most of the misery resulting from wasted energies and hope deferred, which the involuntary victims of the legal Juggernaut are suffering ? We have no hesitation in stating that, in our opinion, the parties most to blame are]jthe Judges ; and that of the Judges, the Chief Justice is beyond all comparison the most culpable. The case of Macfarlane v. Murnin is probably familiar, in name at least, to most 6f our readers. It has been before the Supreme Court foi years, and has frequently been referred to of late by fcorrespondents whose letters have appeared in our columns. For_this reason, and not because it differs in any essential particular from a dozen others which might be named, we notice it, u illustrating the usurpation of the proper province and functions of the juryman by the judge. This unwarranted setting aside of the verdicts of juries on frivolous grounds, or no grounds at all, is at the bottom of most of themisi chief. The action of Macfarlane v. Murnin was first tried in the Supreme Court about four years since. -It was heard before a special jury of twelve, and occupied the Court for six days. The Jury was probably win- j telligent and respectable a one as was ever impanelled | in the colony. There was no question of perjury or undue bias on the part of the witnesses. The unanimous verdict of the jury was for the plaintiff. There was no ground whatever, that we have been able to ascertain, for setting aside this verdict, — mpst certainly no ground that in any other Court would have been listened to for a moment. , The verdict was in accordance with the conclusions of every person we have heard express an opinion on the cose. But, as a matter of course, the defendant was not satisfied. A new trial was, applied for in this as in almost every other casejwhich is tried in the Supreme Court. ,The application was of course granted. Who ever heard of a refusal in |a suit, where the party applying was stdfeciently wealthy to afford the luxury of litigation ? A refusal of a new trial would be injurous to the" interests of thfc profession, and would 'probably render iHe Bench very unpopular -indeed with the Bar., What did it matter ihat twelve gentlemen, on their solemn oaths, after a patient hearing of six days, had given a unanimous verdict for the plaintiff T Not a >bit. It is only in England and such benighted countries that verdicts of ' juries' are accounted of ajiy .value. Here they are altogether ignored ; a new-trial is granted, on the most frivolous grounds, and the solemn farce is played over *g«n and again. The reason — divested of all its verbiage— assigned by the Chief Justice *for gr*n-

"ting a new -"ferial in Macfftriiuie v. Murnin was, that to maintain the verdict would be injurious' to the defendant's chwaoter [ And therefore, although he hodntt legal right to aik to have the verdict let wide the Conrt had chosen in its'diidretion to "do go, In other wordi, a new trial was granted 'as a matter of favour to the defendant, because his character was considered to be in some degree At stake 1 One would have thought that Sir Alfred Stephen had already seen enough of the evil effeots of mischievously intermeddling with-casea of character, when nothing of the kind was before hum In the case of Devine r. Wilson a new triel was granted by the Privy Council entirely on the ground of Sir Alfred Stephen having misdirected the jury in a similar manner. That misdirection cost the defendants probably five or six thousand pounds at least, to say nothing of years of trouble and anxiety. What had the Court in Macfarlane v. Murnin to do with defendant's character ? The case had been fully heard, before a tribunal legally competent to deal with it, and it had been decided against the defendant. It would be quite as reasonable— quite as much in accordance with all principles of justice, for a judge in a criminal court to refuse, in the case of a man being tried for robbery or any other crime, to receive the verdict of a jury, because the finding of him guilty would be a stain upon his character ! What are jurors for ? What ia the use of retaining > the empty form of a trial before twelve riien, if their deliberate decision is to be set aside at the mere caprice of a judge * We wish to be understood as not casting any reflection on the character of the defendant in Macfarlane v. Murnin. The case was one of disputed accounts l>etween two mercantile men, and perhaps each believed himself right. They appealed to a jury. Their case was fully heard ; and the decision of the jury should have been respected. The Court, in the exercise of its caprice, thought otherwise. Years have elapsed. The case, like scores of others, drags its slow length along. Term after after term goes by. The new trial list increases. The termination of the cose is apparently as far off as ever. The defendant, wose residence was in New Zealand, has had to incur an enormous outlay, in repeated voyages, for himself and witnesses. His expenses have far exceeded the amount of the verdict — between three and four thousand pounds. In order to carry on the suit he has had to reside in Sydney a great part of the time, to the neglect of his affairs at Auckland, and the ruin of his peace of mind. In fact, he is pretty well ruined altogether. It is Jarndyce and Jarndyce over again, with the old result. We have taken this case as an illustration, but there are plenty of others just as bad. Tn laying the blame at the door of the Chief Justice, we emphatically state that no individual in the community entertains a higher degree of respect for his Honor's personal character than we do. To his unblemished private reputation we gladly bear testimony ; but this does not blind us, and ought to blind the public, to his peculiar idioiyncracies — the attention which he bestows upon legal hair-split-ting and unimportant trifles, arising, it may be, from an exaggerated dread, almost amounting to a disease, of doing an unjustice. Another reason, we fear, which induces him to listen to almost endless arguments for new trials is, his extreme desire to stand well with the profession — an undue anxiety for popularity with the Bar. Amiable weaknesses of this nature, however pardonable or even estimable they may render their possessor in private" life, most \mdoubtedly unfit a man for the high position of a judge. We firmly believe that a mind of Sir Alfred Stephen's calibre unfits its possessor for the judical office. We say it with all becoming deference and respect. Since he has occupied the position of Chief Justice things haye v gone on from bad to worse. The state of the Supreme Court at present amounts to a positive denial of justice, and the Press will neglect its duty to society if it fails to speak out boldly in the matter.

Gallant Career of one Risen from the Ranks. — Intelligence wiis received by the last mail from India of the death of Captain Lawson of the 42nd Highlanders, lesulting from a wound on tho knee received during the suppression of the mutiny. The career of this gallant soldier is worthy of note. Captain Lawson, who was a native of Lanark, entered the army in 1837, having before that time been employed as a ploughboy. He served as a non-commissioned officer for nearly sixteen years, during which period he gained for him■elf the confidence and respect of his superiors, and the affection and esteem of his fellow-soldiers. In 1854 he embarked with the regiment for the Crimea, was present at the Alma, and passed unscathed through all the hardships and perils of that memorable coinpaign. After Inkermann, along with a lot of deserving non commissioned officers serving in other regiments, he received his commission, as ensign. In March, 1855, he was promoted to the rank of lieutenant, and for tome time previous to the conclusion of the war acted as captain in. th« late Land Transport Corps. tin his ' return to England, in 1856, he rejoined the 42nd, and shortly after received the appointment of instructor of musketry to the regiment. At thii time, also, the magistrates and council of Lanark (his native town), in consideration of his distinguished conduct, agreed to present him with the freedom of that ancient burgh ; this honour, however, the gallant gentleman never had an opportunity of personally receiving. The outbreak of the Indian mutiny called hnn again to the field, and in August, 1857, he left England with the head quarters of the regiment for Calcutta. In 1858 he obtained hii commission as captain, and shortly after received the wound which, on the 18th of August last, ended hit honourable career. Captain Lawson commanded the picquet of the 42nd, thirty-seven in number, which was engaged in the terrible fight on the banks of the Suarda, on the morning of the 15tb of January, with upwards of 2000 rebels. The little band of Highlanders defended themselves with extraordinary courage from sunrise to sunset, until relief arrived from General Walpole. Captain Lawson was honourably mentioned in the general's despatches for the manner in which he acquitted himself on that day. — Scotsman.

A Hurricane viewed from the Royal Charter. — Were I a painter, there i« no icene which, since my abandonment of arctic adventure, has come under my personal observation, that I should more earnestly attempt to place upon canvas than the poop deck of the Royal Charter, with the immediate elements for a picture without, during the height of the hurricane. First, in the afterpnrt of the ship, looking upward, we should have the mizen mast of the ship denuded of •11 sail, with the cordage swelling out forward under the force of the wind — then the ship her»elf cast into an oblique heel toward* the port side, the stem raised high by a mountain-like wave— then the living picture at the helm — the attending officer and the directing captain standing sideways, in the foreground of all ; then externally the asiailing mountain-like wave, following close on the starboard quarter, and giving the direction and angle to the ship'i inclined position, yet threatening, as many such wave* do, to overwhelm the •hip in mightiness of waters ; then the atmospheric part of the picture, the mistiness of the storm drift — < the sun throwing a lurid glare through an aperture in the dense mast of cloud flying above — eliciting in the sea-spray of some immediate breaking crest % striking and brilliant segment of a prismatic arch ; and, finally, beyond this, astern, or on the left hand of the picture above, an approaching squall shower, thrown by the contrast of the penetrating sunbeam* into the aspect of consummate threatening and blackness ! — Scoreby't Journal of a Voyage to Australia.

A Maiwellou» Story.— The following ttrango story appears in the Union dv Var. We may remark that the name of Sir Edward Egerton mentioned in it is not to be found in any baronetcy : — Sir Edward Egerton, nephew of Sir Robert Peel,' hat' just left Nice for' Graste. This'young man haa been occupied for yean in procuring the information necessary to discover a will made by one of his uncles, learing him a 'fortune estimated at thirty-Wp millions— part of the fortune consisting of thirty houses at London, and an entire street at Edinburgh. This will, after the death of the testator, could not be found, and all the attempts tb discover it were fruitless. In August last the Rev. Mr. Hiratnel, & Catholic priest at Dublin, received in confessions declaration to the following effect:— The opulent testator some time ago sailed for Italy in the Yilli de Gra&se, a steamer which was sunk neat the He* d'Hyeres. All his effects and papers were lost, but' he himself was saved; he was however, afflicted with' rheumatism, and having had to stop at Nice, died thtre. Just before his death he" made his secretary write to his-nephew' to beg him to come in all haste; but the secretary supposing that he would make »J» J new will in favour of the;la«er,- andhaving a spitt against him, did not sendthe letter. When ha made this confession the exuecretary was onhis deathbed, and he prayed the priest to do what he could to re«> pair his wrong. "Sir B. Egerton it now about to endeavour to obtain at Grasse or Cannes information as to the precise spot in which the' vessel in quei tion went down. He hopes that the trunks of his deceaied uncle may still be intact, and, that in ont of (them he o'an find tj»e will., A cqmpany is being Cognised at London to assist him in' getting, up the rveifti:" lie has consented to adrance £20,000 in English money towards the expenses, and to gitt £5000 out of his inheritance if the lost will be found at the bottom of the ocean. In the lost vessel were large sums of money, and other articles of Value belonging to other persons : and the question has 'arisen, whether the English company may riot retain 'all the wtalth ii may fiih'upj— , Europaah Timu.