And with respect to things to be done by the commissioners by special order only, and with respect to clocks, and with respect to entry by the commissioners or their officers in execution of this Act, and with respect to ensuring the execution of the works by this Act required to be done by the owners or occupiers of houses or lands, be it enacted as follows: LV. So much of "The Towns Improvement Clauses Act, 1847," as relates to things to be done by the commissioners by special order only, and so much thereof as relates to clocks, and so much thereof as relates to entry by the commissioners or their officers in execution of the Act, and so much thereof as relates to ensuring the execution of works required to be done by the owners or occupiers of houses or lands, shall be incorporated with and form part of this Act. And with respect to the sale of gunpowder, be it enacted as follows: LIV. Whosoever shall wilfully or carelessly break, of the examination shall be paid and borne by the injure, or open any lock, cock, waste-pipe, or water-person to whom such works belong, or under whose works belonging to or under the management or management or control they may be, and be recocontrol of the commissioners, or shall unlawfully verable from him in the same manner as any debt divert or take water from any waterworks belonging may be recovered by the law of Ireland; but if it to or under the control of the commissioners, or appear that the water has not been so fouled, then from any waters by which such waterworks are sup- such expenses, and all damages occasioned by the plied, or shall wilfully or negligently waste any examination, shall be paid by the commissioners out water with which he is supplied by the commissioners, of the general assessments levied under this Act, shall for every such offence forfeit a sum not exceed and be recoverable from them upon summary proing two pounds, and a further penalty not exceed ceeding by civil bill or otherwise, as any debt may ing ten shillings for each day whilst the offence is be recovered by the law of Ireland. continued after written notice in that behalf, which penalties shall be paid to the commissioners; and whosoever shall bathe in any stream, reservoir, or other waterworks, belonging to or under the control of the commissioners, or shall wash, throw, or cause to enter therein, any animal, rubbish, or thing of any kind, or shall cause or permit or suffer to run or be brought therein the water of any sink, sewer, drain, engine, or boiler, or other filthy, unwholesome, or improper water, or shall do anything whatsoever whereby any water belonging to the commissioners, or under their management or control, shall be fouled, shall for every such offence forfeit a sum not exceeding two pounds, and a further sum not exceeding twenty shillings for each day whilst the of fence is continued, after written notice in that behalf, which penalties shall be paid to the comimissioners; and whosoever, being proprietor of any gasworks, or engaged or employed in the manufacture or supply of gas, causes or suffers to be brought or to flow into any stream, reservoir, or waterworks belonging to or under the management or control of the commissioners, or into any drain or pipe communicating therewith, any washing or other substance produced in the manufacture or supply of gas, or shall wilfully do any act connected with the manufacture or supply of gas, whereby the water in any such streamn reservoir, or waterworks is fouled, shall forfeit to the commissioners for every such offence a sum not exceeding one hundred pounds, and, after the expira tion of twenty-four hours notice in writing from them in this behalf, a further sum not exceeding ten pounds for every day during which the offence is continued; and if any water belonging to or under the management or control of the commissioners be fouled in any manner by the gas of any such proprietor or person, he shall forfeit to the commissioners for every such offence a sum not exceeding ten pounds, and a further sum not exceeding five pounds for every day whilst the offence is continued after the expiration of twenty-four hours notice in writing from the commissioners in this behalf; and for the purpose of ascertaining whether such water is fouled by the gas of any such proprietor or person, the commissioners may lay open and examine any pipes, conduits, and works from which the gas is supposed to escape; provided that before beginning so to do twenty-four hours notice in writing be given to the persons to whom such pipes, conduits, or works belong, or under whose management or control they may be, of the time at which the examination is intended to be made; and if upon such examination it appear that the water has been fouled by the gas proceeding from the works examined, the expenses LVI. No gunpowder shall be sold within the town by candle or other artificial light, under a penalty not exceeding one pound for each offence; and no person shall keep at any time more than ten pounds weight of gunpowder, except by special permission of the commissioners, signed by the chairman and two of the said commissioners, and under such regulations for its safe custody as they may approve and determine, under a penalty for the first offence of any sum not exceeding one pound, for the second offence not exceeding three pounds, and for the third or any subsequent offence not exceeding five pounds, besides forfeiture of all the gunpowder which shall be found exceeding the aforesaid weight; and the aforesaid quantity of gunpowder allowed to be kept as aforesaid shall be deposited in a place separate from all other goods and commodities, and shall be secured by lock and key, under a penalty not exceeding one pound to be paid for each offence by the occupier of the premises in which such quantity not so kept and secured as aforesaid shall be found: provided always, that nothing herein-contained shall apply to any quantity of gunpowder provided for military or constabulary purposes. And with respect to the byelaws to be made by virtue of this Act, be it enacted as follows: LVII. So much of "The Towns Improvement Clauses Act, 1847," and of "The Commissioners Clauses Act, 1847," as relates to the byelaws to be made by virtue of said Acts, shall, save as next herein provided, be incorporated with and form part of this Act: provided that no byelaw made by the commissioners under the authority of this Act shall come into operation until the same be confirmed by the Lord Lieutenant, who is hereby empowered to inquire into any byclaws tendered for that purpose, and to allow or disallow of the same as he may think meet; provided also, that no such byelaws be confirmed unless notice of the intention to apply for a confirmation of the same have been given in one or more newspapers circulating within the town (if any,) or otherwise in some newspaper circulating in the county in which the town is situated, one month at least before the making of such application; and any person desiring to object to any such byelaw, on giving to the commissioners notice of the nature of his objection ten days before the making the application for the allowance thereof, may transmit to the Lord Lieutenant a memorial containing the grounds of such objection: and if such byelaws should be thereuponc onfirmed, in the whole or in part, the order for such confirmation, in the whole or in part, shall be signed under the hand of the chief or under secretary of the Lord Lieutenant, of which order a copy shall be published in one or more such newspapers as aforesaid, and such publication shall be deemed evidence of such byelaws. And with respect to the contracts to be entered into, and the deeds to be executed by the commissioners, be it enacted as follows: LVIII. So much of "The Commissioners Clauses Act, 1847," as relates to the contracts to be entered into, and the deeds to be executed by the commissioners, shall be incorporated with and form part of this Act. And with respect to the appointment and accountability of the officers of the commissioners, other than those herein-before provided for, be it enacted as follows: LIX. So much of "The Commissioners Clauses Act, 1847," as relates to the appointment and accountability of the officers of the commissioners, save as herein next provided, shall be incorporated with and form part of this Act: provided that the commissioners shall in all cases appoint some bank or banking company to act as their treasurer, and that it shall not be necessary to require from such bank or banking company any security for the due execution of such office as required by said Act; provided also, that the drafts to be drawn on said bank on account of said commissioners shall be drawn at a meeting of the commissioners, and there signed by the chairman of the meeting and by two other commissioners, and no drafts ou the said account shall be drawn for any private purpose on any pretence whatever, nor for any other purpose than the payments which shall from time to time be authorized by the commissioners for the purposes of this Act, as the same shall be certified to the said treasurer by the clerk to the commissioners, who shall countersign all such drafts. And with respect to general assessments under this Act, be it enacted as follows: poses of this Act, other than by way of private or district assessments, and shall fix a day, not being less than one month from the date of laying ou such assessments, on which the same shall be payable; and the rate of assessment, and day so fixed by the commissioners, shall be published by handbills posted in the town, and by advertisement in any newspaper or newspapers published therein (if any), or otherwise in some newspaper or newspapers published nearest to such city or town: provided that such assessment, other than private and district assessments, shall not in any year exceed the rate of one shilling and sixpence in the pound where the enactments of this Act with respect to water have been adopted, or the rate of one shilling in the pound where such enactments with respect to water have not been adopted; provided, that all unoccupied houses, tenements, or premises, being at the time of such assessment unproductive to the lessors or landlords thereof, shall be exempt from taxation under this Act during the period that such premises are so unoccupied and unproductive, and no longer. LXI. The clerk of the union shall, on the requisition of the commissioners, produce the rate book of the union, and the said commissioners shall annually cause to be made up a book of assessment, to be signed by the chairman and two others of the commissioners, showing the net annual value of the whole premises in the town under the poor law valuation liable to be assessed under this Act, and according to which the assessments under this Act are intended to be levied; and such book of assessment shall be open to inspection by all ratepayers, in the hands of the clerk; and the commissioners shall have power to rectify any mistake or error, upon the ground of any variance from the last assessment for poor rates, or on the ground of any change of occupation of premises since such last assessment for poor rates, and in each year a copy of the said book of assessment, as finally adjusted by the commissioners, signed by the chairman and two commissioners, and countersigned by the clerk, shall be delivered over to the collector, as the rule for levying and collecting the annual assessment under this Act, and shall be deemed to be evidence of each and every separate assessment for the purposes of this Act. LXII. For the purposes of any rate to be made or levied under the provisions of this Act or of any Act incorporated herewith, all lands used as arable, meadow, or pasture ground only, or as woodlands, or market gardens, or nursery grounds, and all lands covered with water, and used as a canal, and any towing-path to the same, and all lands used as a railway constructed under the powers of any Act of Parliament for public conveyance, shall be assessed and liable in the proportion of one fourth part only of the nett annual value of such lands respectively. LXIII. If any person so rated and assessed as LX. Once in each year the commissioners shall aforesaid, shall refuse or neglect to pay the assessassess all occupiers of premises within the town and ment charged upon him for the space of ten days the boundaries thereof, as before determined on and next after the same shall be due and demanded by declared and settled, rated in respect of such pre- the collector, it shall be lawful for the collector to mises under the Acts for the relief of the destitute levy the same by distress and sale of any goods and poor in the sums necessary to be levied for the pur-chattels of such person which may be found either assessment under this Act shall prejudice the reco- Now ready, in 2 vols, post 8vo. 21s., bound, JR. SHEIL'S LEGAL AND POLITICAL This day is published, price ls. 6d. A Statement of Facts, by THOMAS TERTIUS PAGET, Esq. on the premises chargeable, or on any premises committed in any proceedings for recovery of any within the town rented or possessed by the person so assessed, rendering to the owner of such goods and chattels the overplus (if any,) after deducting the expenses of distraining, not exceeding twelvepence in the pound on the sum for which such distress may have been made; or in case the collector shall not think it expedient to proceed by distress, then it shall be lawful for him to leave at the dwelling house of the party chargeable for or in respect of such premises a notice, bearing date the day and year of serving the same, subscribed with the name and abode of such collector, requiring payment of the sum applotted withiu ten days from the date of such notice, and expressing that within ten days the money demanded may be paid to the collector at his house or office; and if such money be not so paid to the collector at his house or office; and if such money be not so paid within such time, then it shall be lawful for such collector to prefer a complaint to any justice of the peace having jurisdiction in such town, and such justice shall summon the party so complained against to appear before him, or any other justice of the peace sitting in petty sessions, and answer the said complaint, and shall, at the time specified in such summons, examine into the matter of such complaint on oath, and shall direct the payment to such collector of such money as he shall find due and payable under such assessment by the party complained against, together with a sum certain for such reasonable costs and charges as to such justice shall seem meet; and in default TALBOT of the appearance of such party, or upon his or her refusal or neglect forthwith to pay the sum or sums so by such justice directed to be paid, it shall and may be lawful for such justice, or for any justice of the peace having jurisdiction in such town, to issue his warrant authorising and empowering the said collector to levy the money thereby ordered to be paid, by distress and sale of any goods or chattels of the party so complained against, which may be found within the town, rendering the overplus (if any) to him or her, the necessary charges and expenses of distraining being thereout first deducted, as directed by such justice; and the collector shall be bound to preserve the warrants of such seizures or sales, and enter in a book to be kept for that purpose the names of the parties proceeded against, the assessment due, the expense of the proceedings, the chest. Price is. and the true proceeds of each sale, which book shall be open to the inspection (without any fee) of all parties interested for three months after the date of each sale respectively; and at any time within that period it shall be competent to any party consider. ing himself aggrieved to complain to any such justice of anything done unjustly or oppressively in regard of such seizure or sale, such complaints being made in the form of petitions subscribed by the complainer, and the decision of such justice shall be final; or otherwise the collector shall be and he is hereby authorised and empowered to sue for and recover all or any part of such assessment in arrear by personal action or by suit before the civil bill court of the assistant barrister having jurisdiction in that behalf as to such town, or otherwise according to law; aud no misnomer, mistake, or informality Lately published, price 4s. ECCLESIASTICAL COURTS.-A Report of the Judgment delivered by Dr. Radcliffe, in the Case of Talbot v. with Observations on the Practice of the Ecclesiastical Courts, by JOHN London: THOMAS BLENKARN, Law Bookseller, 29, Bell Yard, PECTORAL AND COUGH MEDICINES OLDHAM'S COMPOUND SYRUP OF SMILAX. This grateful Syrup combines with the balsamic and restorative pro. perties of Smilax Aspera, the soothing virtues of the Garden Lettuce, and the efficacious principles of the Ipecacuanha and other expectorants. It is found most useful in affections of the chest, allaying the troublesome irritation which provokes coughing, and removing phlegm, difficulty of breathing, and hoarseness. It is also a nice medicine for children. OLDHAM'S COUGH DROPS. Recommended for Coughs, Colds, Asthmatic Complaints, Hooping A teaspoonful taken occasionally allays cough, promotes expectoration, removes huskiness of the throat, and relieves soreness and oppression of OLDHAM'S ANODYNE COUGH LOZENGES. The acknowledged excellence of the inedicinal ingredients, and the de served reputation which they have acquired, induce the proprietor to re commend them as a most efficacious and agreeable preparation for the rebef of recent Coughs, Colds, Asthmas, Hooping Cough, &c. Price Is. per box. OLDHAM'S SMILAX AND HIPPO LOZENGES. Cough, relieving the Chest, and removing Hoarseness. Price is. per box. GEO. OLDHAM and CO., Of whom may be also had Oldham's Lettuce Lozenges, Is. per box; TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 17s. Quarterly, 9s. Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45 COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the THE IRISH JURIST. No. 320.-VOL. VII. FEBRUARY 17, 1855. PRICE, per Annum, £1 10s. DUBLIN, FEBRUARY 17, 1855. 157 UNTIL the recent alterations in the Law of Civil Procedure here and in the sister country it appears to have been well settled, that in the action of ejectment a previous judgment between the same parties was no estoppel. That principle was recognized in Doe dem. Strood v. Seaton, (2 Cr. M. & R. 732,) where Lord Abinger, C. B., is reported to have said, "A judgment in ejectment is not conclusive evidence, because a party may have a title to possession and to grant a lease at one time, and not at another; but it is clearly admissible in evidence. Baron Parke added with reference to the reason of this rule, "A judgment is in no case conclusive, unless pleaded by way of estoppel. It cannot be pleaded in ejectment, because the defendant is bound by the terms of the consent to plead not guilty; but, if the parties are the same, it is evidence to go to the jury. In this case the former judgment shows that the lesssor of the plaintiff had no title to demise the premises in question on the particular day of the demise." Such, we presume, would have continued to be the acknowledged state of the law, had not the recent measures intervened. On the other hand, it was equally clear that the rule was different, for an obvious reason, in the case of an action for mesne profits; there the previous recovery in ejectment which was the ground of the COURT OF COMMON PLEAS (Continued): DARCY U. WYNNE. Practice-Substitution of service-Taking summons and plaint off the file. FIGGIS V. HICKEY. Practice Ejectment-Immaterial defence.. COURT OF EXCHEQUER: RIDDICK V. KAVANAGH. tering up of judgment.. Practice-Award-En 160 action might have been replied in estoppel to a plea alleging adverse title in the defendant. Doe v. Wright, (10 A. & E. 763.) The first alteration in our practice in ejectment was effected by the 13th Vic. c. 18. That Act, by section 15, provided that the action of ejectment should henceforward be commenced by a writ of summons; and by section 16 required the judges, by general order, "to order and direct what shall be the form and substance of any declaration in ejectment, and to dispense with and discontinue the use of the declaration now used in such actions, and to dispense with and discontinue the use of feigned names and other fictions in the declaration, and to make such other regulations, &c., as to them shall seem meet." The New Rules of 1850 contain no special provision with regard to what shall henceforward be deemed to be the legal effect of the judgment in ejectment, but the Schedule IV. annexed to those Rules contains forms of declaration and general defences in that action. The former was thenceforward to contain no legal fiction, either in the names of parties or the allegation of a pretended demise and ouster, but, in lieu thereof, it was to allege that upon a certain day, "the plaintiffs, or some or one of them, became, and were, and still are legally entitled to the quiet and peaceable possession of all that and those lands called Blackacre in the County of and, being so entitled the said G H wrongfully assumed the possession thereof, and from thence hitherto withholds and refuses to deliver up such possession to the said plaintiffs." Now, if the question of the conclusiveness of a judgment in an action of ejectment thus remodelled had been mooted in a similar suit between the same parties, whilst this Act was in force, it would appear to us to have been a necessary inference from the words of the Act, that no further change was contemplated, save in the forms of law, and that the legal effect of the judgment remained unaltered. The mere substitution of real for nominal parties could have worked no essential difference, for such does not appear to have been the ground of the proceedings having previously been inconclusive. However, whatever might have been the construction of this section of the Process and Practice Act, that is now merely a speculative question, as these enactments have been repealed by the Common Law Procedure Act." The form of summons and plaint in ejectment now in use, pursuant to section 195 of that Act, is very similar in form to that which we have just quoted. The defence to an ejectment on the title has been prescribed by the 198th section, and is simply to allege that the plaintiffs are not entitled to the possession, and that the said possession belongs to the defendant as of right. one form of plea was allowable in actions of ejectment on the title under the Procedure Act, the estoppel might be relied on without being pleaded. We feel very diffident in venturing to call in question the propriety of that decision, but the vast importance of the question, and the certainty that the law must be more thoroughly sifted, induce us to offer a few comments upon the grounds of the judgment in question. An authority was cited in the course of the argument, the effect of which really strikes us as having been greatly over estimated by the learned judges, namely, Wilkinson v. Kirby, (2 E. C. L. R. 1395.) It seems to have been taken for granted that that was an authority expressly in point, and that it established the proposition that the character of a judgment in ejectment had, by analogous legislation, been essentially changed. We submit, however, that that case, when carefully examined, proves directly the reverse, although it is true that an extrajudicial observation of one of the judges, (Mr. Justice Crowder) would seem to lead to that inference. What that case decided was this, that in an action of trespass for mesne profits, a plea denying the title of the plaintiff might be met by a replication by way of estoppel, relying upon a recovery in ejectment, under the new practice, coupled with an allegation of the entry of the plaintiff under his judgment. question at issue was not, whether such a replica The of Doe v. Wright had established that, but whether the absence of the alleged entry under the fictitious demise could be supplied by an act in pais. The 225th section contains this important provision, that "The effect of a judgment in ejectment under this Act shall be the same as that of a judg.tion would previously have been good, for the case meat in an action of ejectment heretofore used." These words are precisely the same as those in section 207 of the corresponding English Act. The writ of ejectment which has in England, since the Looking at the judgment delivered by the Court passing of the 15th & 16th Vic. cap. 76, taken the of Exchequer, it would really seem as if the learned place of the ancient form, is very similar to our judges supposed that the decision in the case cited summons and plaint in that action. In that country turned upon the substitution of real for imaginary there was no intermediate stage, corresponding to parties; and also that the question of the conclusiveour Process and Practice Act, and the words "here-ness of the judgment had arisen in a second action tofore used" can, therefore, in that particular Act, of ejectment-neither of which surmises are at all have no other reference than to the ancient practice warranted by the facts of the case. Again, some in ejectment. A priori, we should have said, that stress appears to have been laid upon the fact that a similar rule would apply to Ireland. However, the code in ejectment established under the Prothe contrary has been decided by the Court of Ex-cess and Practice Act intervened between the anchequer in the recent case of O'Donnell v. Ryan, (7 Ir. Jur. 127.) The court there held that, inasmuch as the action of ejectment had, by the Procedure Act, been assimilated to other personal acjudgment therein was equally conclusive between the parties, to estop them from questioning the propriety thereof in a subsequent ejectment suit, as in any other action. They also held that as only cient practice and that founded by the recent statute, section 225 of which renders the effect of the judgment in ejectment similar to that "heretofore used." It seems to be inferred that these words in our Act refer to the judgment under the Process and Practice Act; and hence arises the two-fold assumption-first, that the Process and Practice Act did actually alter the nature of this particular |