person or persons, being plaintiff or plaintiffs, shall | reference to any hardship, real or supposed, in this have an interlocutory judgment or judgments, the particular case. The time of entering up the judgdeath of such plaintiff or plaintiffs shall not abatement appears to me to be the day on which judgment the suit, if the action be such as might originally have been prosecuted by or against the executors, but the judgment may be revived by scire facias. But for these enactments, it is clear that until after final judgment the party entitled would at common law, have no means of recovering his costs, as judgment was not considered final until the costs were inserted, which could not be done till after taxation, except the costs were waived by the party entitled to them. In Blackburne v. Rymer, (1 Marsh, 278,) and Butler v. Bulkeley, (I Bing. 224), it was held that at law a judgment was not final, till completed by the insertion of the amount of the taxed costs. Pell, Sergeant, arguendo, says, "The only question is, whether judgment is final, on the officer of the Court marking the postea, or on his taxing the costs. The mark on the record seems to be the appropriate and distinguishing indication of the fiat of the Court; but in Blackburne v. Rymer it appears to have been thought that judgment is not final till the Prothonotary's allocatur is completed by the insertion of the amount of the costs." The Court were of this opinion, and made the rule absolute to amend the postea, on payment of costs. In Pierce v. Derry, (4 Q. B. 635,) where the plaintiff obtained a verdict in July, 1841, entered judgment on the postea on the 13th of December, dating the entry as of that day, and the costs were not taxed till the expiration of two terms after verdict, when the plaintiff entered final judgment, as of the 13th of December, 1841, between which date and the entry of the last judgment the defendant died. Error was brought by the executors. The Court changed the date of the judgment from the 13th of December, 1841, to the 1st of February, 1842, the day of the taxation. Lord C. J. Denman, in his judgment, says " I should not be disposed, in a case like this, to exercise a discretion which might produce results unjust to one of the parties. But looking to the circumstances and the authorities cited, I think we have no discretion to exercise. We cannot say this was a judgment signed on the 13th of December, 1841, or permit it to stand as such a judgment, and Patteson, J., Butler v. Bulkeley, and other authorities which have been cited, shew that signing judgments is a thing contemporaneous with taxation of costs. If this were not so, what is judgment signed for, unless, indeed, the party signing dispenses with costs." In Fisher v. Dudding, (3 Man. & Gr. 238, S. C. 9 Dowl. 872,) a question arose as to the time from which the interest on a judgment was to be computed under the provisions of the 1 & 2 Vic. c. 1 10, s. 17; 3 & 4 Vic. c. 105, s. 26, Ir. In that case, final judgment was signed for debt and costs on the 8th of January, 1841; a summons to review the taxation was subsequently had, whereby £12 10s. was added to the original costs, and the question arose as to the effect of the delay on the period from which the interest was to be computed. Tindal, C.J., said this application must be governed by the true construction of the term, "entering up judgment," which occurs in the statute, without is signed and the incipitur entered in the books kept by the officer of the Court for that purpose. The Court decided, the words "entering up" were to be construed as "signing," and that the original date of the signing was unaltered by the review of taxation. These authorities and many others referred to in the argument of those cases fix the date at which a judgment at common law became incapable of abate. ment, to be that of the taxation of costs. That being so our next inquriry should be the time at which a decree is incapable of abatement. The rule at law and in Equity is, when examined, extremely similar. Lord Hardwicke, C. in White v. Hayward, (2 Ves. by Belt, 461,) states the rule to be, "That as to costs the established distinction is that whether given to plaintiff or defendant, by the death of the party before they are taxed, so that they are uncertain and unliquidated, they fall to the ground; because it is a personal demand in the nature of a tort, and dies with the person; but if taxed, they become a certain duty to the representative, who is entitled to some remedy or process of revivor for these costs. This has been determined by Sir Joseph Jekyl and by me in Basset v. Prideaux, March, 1742, where the bill was for costs only, which had been taxed; defendant pleaded that the plaintiff, as administrator, could not revive for costs only, I was of opinion the plaintiff might, and that is the difference." The practice in Equity and at common law, except so far as the latter has been changed by the statutes we have referred to, being that, in either case, until taxation, the costs may be lost by abatement, by death. have now to consider the effect of the statute (1 & 2 Vic. c. 110, s. 18; 3 & 4 Vic. c. 105, s. 27, I.) upon the decree. The 27th section places decrees in no higher position than judgments, and the authorities clearly show that, if it were not for the statutes, before taxation the right to costs would be lost by the death of either plaintiff or defendant, and that the 1 & 2 Vic. c. 110 makes no difference in this respect. Fisher v. Dudding, (3 M. & G. 238.) Unless there be some practice or enactment making an alteration in the law respecting decrees similar to that effected in the law of judgments by the statutes referred to, we do not understand how the 1 & 2 Vic. can have such an effect, unless it could be held to extend those statutes to decrees-a proposition which we think could scarcely be contended for. The 27th section enacts that no decree is to affect real estate till registered. In Bowyer v. Beamish, (1 Jon. & Lat. 228,) the question was raised before Sir E. Sugden, C., who, after deciding that the general rule there can be no revivor for untaxed costs, whether the abatement is caused by the death of the party to pay or the party to receive the costs is immaterial, at p. 242 says, "The law does not alter the case. If the plaintiffs have any right under that statute let them proceed under it. The existence of such a right would be rather an argument against them now. If it does exist it cannot alter the rule of this court." We As the statute cannot change the rule of equity; as at common law, before taxation, the person entitled would lose his costs by the death of either of the parties, and as the statute has no effect in this respect upon judgments. The evident conclusion appears to be, that the rule of equity as to revivor for untaxed costs is unaffected. THE 25 Geo. 2, c. 13, prescribes the manner in which a distress for rent is to be disposed of. Section 5 enacts "that all distresses lawfully taken for any such rent, shall, unless redeemed "within eight days" after the same shall be distrained for, be sold, &c, the person distraining, his agent, or bailiff, first causing one or more notice or notices in writing, of the place and time intended for such sale, to be posted six days previous to the time of such sale, &c." The mode in which the time is computed is thus stated in Mr. Longfield's Treatise on Distress, p. 93-"The eight days allowed for redemption are counted inclusive of the day of distress, and the eighth day the notice of sale is posted, and on the fifteenth day the sale takes place. This method of computation has long prevailed, (Dwyer v. Peacock, 2 F. & S. 34), and can only be sanctioned by long custom, as it seems at variance with all legal rules established for the computation of times from acts done. Harper v. Taswell, (6 C. & P. 166.) If therefore, the distress be made on Monday, the notice of sale must be posted that day week, and that day fortnight is the day for the sale." The doubt expressed by the learned author as to the propriety of this mode of computation, has been fully justified by the decision of the Court of Queen's Bench in England, in the case Robinson v. Waddington, (13 Jur. 537.) The action was Case for an illegal and excessive distress. The question arose on the statute 2 W. & M. sess. 2, c. 5, s. 2, which enacts that when any goods or chattels shall be distrained for any rent, &c., "and the tenant or owner of the goods so distrained shall not within four days next after such distress taken, and notice thereof," &c., replevy the same, the person distraining may cause the goods, &c., to be appraised and sold, &c. At the trial it appeared that the seizure was made at eight o'clock on Saturday morning, the 25th of September, for a year's rent, and the goods were sold on the afternoon of Thursday the 30th; and it was contended for the plaintiff that the sale was too soon, the tenant having, under the statute, five clear days for replevying his goods and paying the rent, exclusive of the day of seizure and the day of sale. The jury, by the direction of the learned judge, having found for the defendant, a motion for a new trial was made absolute, Lord Denman, C.J. saying "that the court was reluctantly obliged to yield to the later authorities, which produce a revolution in the law upon this point." The rule laid down in this case is, that where a certain space of time is given to a party to do some act, which space of time is included between two other acts to be done by another person, both the days of doing these acts ought to be excluded, in order to insure to him the whole of that space of time. Applying this rule to the practice in this country, the sale on the fifteenth day is not legal, the words "within eight days" must be construed as the words "within five days" in the English | statute, which would bring the sale to the sixteenth day; and if this rule be applicable to the six-day notice, the sale should be upon the seventeenth day; but whether it be so is not, perhaps, without some doubt, as the statute requires the notice to be posted "six days previous to the time of sale," but does not give any act to be done by the tenant within the six days, so that there may be room to contend that the six-day notice should follow the other rule of computation, that where the days are not expressed to be clear, that they shall be held to be exclusive of the first day, and exclusive of the last; and if this be the true construction, a sale upon the sixteenth day would be regular. The Lords' committee upon the Poor Law, havė at length made their final report. The substance of their resolutions is as follows: 1. That up to 1846, the law of 1838 was efficient, and that even under the altered state of circumstances, many unions have dispensed with the outdoor relief, given by the 10 & 11 Vic. c. 31. 2. That no permanent system for the relief of the poor can be safely carried out in Ireland, without a return to the original law of in-door relief. 3. The building of additional workhouses, and the formation of new unions. 4. That for the erection of new workhouses in distressed districts, money should be advanced, and the Poor-law Commissioners invested with the same power to obtain eligible cites, as the legislature has given for the erection of county gaols, &c. 5. A re-arrangement of electoral divisions, on the principle proposed by the boundary commission. 6. That the earliest period there should be a fair and uniform valuation throughout Ireland, as a basis for rating. That such valuation should not be subject to alteration, without an order from the Poor-law Commissioners. 7. That no greater proportion than one-half of the poor-rates actually paid should, in any case be deducted from the person receiving rent. 8. That to check sub-letting, any person so doing should not have the power of deducting any part of the poor-rate from his rent, but should be solely liable. 9. That in holdings valued at £30 per annum, there should be a power of arrangement between landlord and tenant, that the latter should be liable to the whole rate. 10. That to facilitate the discharge, and prevent the accumulation of arrears of rate, that the guardians do certify half-yearly, to the landlord, the rates three months in arrear, from his tenant. And that if the landlord, within two months after notice, shall pay the whole, or a part of the arrear, that he shall be allowed 10 per cent for collection, and be empowered to recover the tenant's proportion by distress, and by ejectment where the rates of one year are out-standing. 11. That the practice of holding landlords personally responsible for rates owing by out-going and defaulting tenants is unjust, and that the responsibility should be limited to the person originally liable, and to the land on which arrears have accrued. 12. That to encourage the investment of capital, and the employment of labour, farms should not be subject to increased rating, on account of the erection of farm buildings, or of any drainage, or any other permanent agricultural improvement, until seven years after their completion. 13. That to facilitate appeals, the rate-book should be open for inspection during fourteen days before the striking of the rate; that the names of occupiers of £4 value and under, shall be in the book; that in no case the name of the immediate lessor, if discoverable, should be omitted; that the agent should have the like power of appeal as his principal; that the mode of proceeding should be either before the justices of the peace at petty sessions, or before the assistant-barrister, with appeal to the judge of assize. 14. That the names of all recipients of relief should be stated under the names of the townlands in which they are last said to have resided. more than the well-being of Ireland is involved. It is inevitable that the continued depression and ultimate ruin of Ireland cannot take place without the most fatal consequences to Great Britain; the loss of a great home market for manufactures; the danger to the social state of Great Britain, from the permanent misery and degradation of the people of Ireland is so great and so imminent, that the committee is confident it will meet the attention it deserves from the public and the Imperial Le gislature. NEW LAW BOOKS, EDWARD J. MILLIKEN, 15, COLLEGE GREEN, The new Act for the abolition of arrest for sums under tel, AND and for the recovery of the possession of small tenements before Justices of the Peace, with a full Commentary, Index, Notes and Forms, adapted for the professional and trading classes. By WILLIAM GERNON, Esq., Barrister-at-law, "The concise and lucid style in which the subject of this work is treated 15. Enumerates the evils of the quarter acre system, and recommends a clause to enable the landlord to take possession of the land of a person cannot fail to render it c'ear and intelligible to the most limited capacity, holding more than a quarter of an acre, and receiv-*** We can confidently recommend it to the patronage of the profession ing relief. 16. That the present duties of the auditors are inefficiently performed, and that the poor law commissioners should particularly direct their attention to this subject. and the public at large."- Freeman's Journal. "The value of this Treatise is much enhanced by the forms appended, and the whole is a very good available summary which will be found like useful to the Lawyer, the Magistrate, the Proprietor of landed property, and the Trader."-Dublin Evening Mail. THE 12mo, Second Edition, Price 2s. 6d.--by post, 34. Act to facilitate the Sale of Incumbered Estates in the provisions of the Act,) for the Sale of Lands subject to Incumbrances. Ireland, with a Copious Index and Directions for proceeding (under By W. M. M'CAY, Esq., Solicitor. 17. That in the distressed districts, particularly where it is proposed to establish new unions and new workhouses, that after the functions of the paid guardians have ceased, the poor law commissioners, at the request of the guardians, may appoint fessional, as well as instructive to the professional reader."-Freeman's a paid resident guardian to assist. 18. That having had proof of the expense incurred by the town of Belfast, &c., in the maintenance of paupers transmitted there, the committee bring forward this fact for consideration, as to the means of obviating it. 19 and 20. Recommend emigration. "This book should be in the hands of every one interested in Irish estates, or the securities affecting them."-Dublin Evening Mail, "It possesses the valuable quality of being intelligible to the non-pro. 12mo. price 2s. 6d.-by Post, 38. A TREATISE ON THE LAW OF INTERLEADER, containing all the Reported Cases in this Country and in England; with an Appendix, containing the Act 9 & 10 Vic. c. 64, with Forms of Affidavits, Rules, Orders, and the Record on a Feigned issue. By Jony BLACKHAM, Esq., Barrister-at-Law. 8vo. price 16s.-free by Post, A PRACTICAL TREATISE ON PLEADING BY the General Orders. By ALFRED M'FARLAND, Esq., Barrister.at.Law, Rinus OF PRACTICE AND NISI PRIUS CASES, BILL in the COURTS OF EQUITY in IRELAND; adapted to (including Registry and Civil Bill Appeals,) DECIDED in the SUPE RIOR COURTS, and at the AFTER SITTINGS; with Index and Table of Cases. By J. BLACKHAM W. J. DUNDAS, and R. W. OSBORNE, 21. That the committee have heard with great interest evidence detailing the proceedings of the British Association and of the Society of Friends, for the improvement of the condition of the people, by promoting agricultural instruction, a development of the fisheries, and an improvement of the industrial resources of Ireland, thus striking at the root of pauperism. To this the measures recommended by the Government, and adopted by the Legislature, will, it is hoped, largely contribute, CONCISE FORMS OF WILLS, with Practical Notes, extending the means of effecting land improvements, the completion of arterial drainage, and the encouraging of fishery stations and small piers and harbours. The assistance wisely granted to railroads in Ireland has a tendency to promote the natural resources of that country, to give a better reward to industry, and thus to create a more effective demand for labour. The progress of education, the connexion of agricultural instruction, not only with the workhouses, but with certain of the national schools in Ireland, have already met the approval of Parliament. These measures will have a salutary effect in raising the moral and social condition of the people: but much remains to be done to solve that difficult problem, the present state of Ireland. In the solution of that problem, much QUE UESTIONS FOR LAW STUDENTS on the Second Edition of Mr. Serjeant Stephen's New Commentaries on the law of England. By JAMES STEPHEN, Esq of the Middle Temple, Bat. rister-at-Law. 1 vol. 8vo. cloth boards, price 10s. 6d. By W. HAYES and T. JARMAN. 4th Edition, cloth bds. 15. All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the Communications-nor will the Editor be accountable for the return of columns of the paper cannot be occupied with answers to Anonymous Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL in Dublin, or its being forwarded to the Country, by Post, on the day of LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 178. Quarterly, 98. Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, FLEET STREET, in the Parish of St. Andrew, and published at 15, Erish Jurist No. 38.-VOL. I. JULY 21, 1849. PRICE Per Annum, £1 10s. Single Number, 9d The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows: SINCE the new rules of 1832, the question has frequently arisen, whether the money counts, for the purposes of pleading, are to be considered as one or separate. In support of the former view it has been argued that the intention of the new rules was to reduce what was before separate into one, and in support of this opinion Barnes v. Keily (Cr. & Dix, notes, 358), has been cited; whilst the case of Jourdain v. Johnson (2 Cr. M. & R. 564), is relied on as an express authority the other way. It would appear to us, (although we admit that some observations in the judgment of the court in Barnes v. Keily, have a tendency to the conclusion contended for), that the Irish cases are merely decisions on the effect of the words "last mentioned monies respectively;" and that the money counts, as settled by the rules of 1832, are to be considered as separate and distinct for the purposes of pleading. There is no principle better established than this, that every count must contain a consideration, a promise, and a breach; but there may, in the same count, be different considerations for the same promise, Webber v. Tivill, (2 Saund. 121, n.e.), provided, however, the sum be not repeated. Morsev. James, (11 M. & W. 831;) McGregor v. Graves, (18 Law Jour. Ex. 109;) but when the sum is repeated, as in the forms settled by the judges in 1832, Jourdain v. Johnson, (2 Cr. M. & Ros. 564,) clearly establishes that the counts are to be distinct and separate; Lord Abinger, page 566, says, "The court think that the last ground of special demurrer must prevail, and that the several demands on the bill of exchange for money paid, lent, and advanced, and interest, and account stated in the declaration in this form are to be considered as different counts. This declaration Court of Exchequer .............. -- JOHN BLACKHAM, Esq., and A. HICKEY, Esq., Barristers-at- Queen's Bench, includ- (FLORENCE M'CARTHY, Esq., and ........ SAMUEL V. PEET, Esq., cluding Manor Court and Registry Appeals. Common Pleas .... Admiralty Court...... Barristers-at-Law. CHAS. H. HEMPHILL, Esq., and WILLIAM HICKSON, Esq., Bar risters-at-Law. ROBERT GRIFFIN, Esq. and W. G. S ROBERT GRIFFIN, Esq. and W.G. CHAMNEY, Esq. Barristers-at-law. is framed in compliance with the rules of court, (R. T. W. 4,) in which the demands in indebitatus assumpsit in the form there prescribed are not treated as one but as several counts; they are called money counts, are not one sum as the amount of all the demands, but several sums, and not one consideration and promise, but several are stated, for there is an averment of a promise to pay each sum respectively in consideration of the defendants being indebted in that sum." The case of Barnes v. Keily, (Cr. & Dix. 358, notes,) is the Irish case which has been relied on as establishing the contrary to the case just cited. The declaration stated that the defendant was indebted to the plaintiff in the sum of £50 for the price of goods bargained, sold and delivered, and in £50 for the price of work and materials, and also the money counts in the usual form. The defendant pleaded non assumpsit to the money counts and demurred to the counts for goods bargained, sold and delivered on the ground that the words "the said last-mentioned several monies respectively" at the end of the declaration did not extend to the count for goods bargained and sold. The court overruled the demurrer, and decided not that the money counts were one count, but that the words "last-mentioned" did not confine the promise, but were to be extended to the several causes of action contained in the declaration. Joy, C. B., in his judgment points out the distinction between the case before him and that of Harding v. Hibel, (Twyr. 315,) cited in support of "In the latter case the declaration the demurrer: was divided into two distinct counts by the words "and whereas also the defendant was indebted to the plaintiff,' which is not the case here, there are not two counts but one count." It must be recollected, however, that this doctrine of Chief Baron Joy, though worthy of great consideration, was not necessary for the decision of the case, and is opposed, as has before been shown, to the case of Jourdain v.Johnson. Harding v. Hibel, followed in this country by Wilson v, Mitchell, (Long & Townsend, 275,) establishes that when the words "and whereas also the defendant was indebted" are used between two different counts, the effect of the words "last-mentioned" will be to confine the promise to the last count, thereby rendering the previous counts open to demurrer. From the above observations we draw the following conclusions: 1st. Where the sum is not repeated in the naming of the different considerations for the promise, the pleading is but one entire count. Morse v. James; M'Gregor v. Graves. 2nd. Where the pleader uses the expression, "and whereas also" in the naming of the different considerations, the words "last-mentioned promises" at the end of the declaration do not refer to the first counts, and, therefore render them liable to demurrer. Harding v. Hibel; Wilson v. Mitchell. 3rd. Where there is a repetition of the sums of money (as in the forms used in this country,) the counts are separate and distinct for the purposes of pleading, Jourdain v. Johnson. The observations of Chief Baron Joy in Barnes v. Keily have caused that case to be cited in support of the negative of the first proposition; but we think the judgment of Mr. Baron Lefroy in Morrissey v. Walsh, (9 Ir. L.. Rep. 296,) is not only conclusive in pointing out what Barnes v. Keily did actually decide, but explains with great clearness the object and effect of the new general rules. The learned Baron, in speaking of the general rules says, (p. 296,) "Their object was not to alter the rules of pleading but to save expense, and in consequence they allow a plaintiff to include separate causes of action, which before would have been matter for several counts in one count; but the words 'promised respectively' distribute the causes of action, and those words are and mean a promise to each of the several causes of action included and contained in that one common count; it is but one count containing several causes of action, and several promises to each, and as to each cause of action a defendant must defend himself by a single defence, he cannot plead and demur to one count containing only one cause of action, whereas if the argument be valid founded on the case of Barnes v. Keily, a defendant might defend himself in two different ways, he might plead and demur to the same count, for that is supposed to have been decided there, because there the declaration was held to contain but one count; but Barnes v. Keily decided no such thing, but decided the contrary to that for which it was cited in that case. The defendant pleaded as to some and demurred as to others of the common counts, and the question was, whether the word 'last-mentioned' tied up the promise to the last count, and the court held that the word 'last-mentioned' did not control and tie up the effects of the word 'promise,' which, by the intention of the general rules, applied to the several causes of action, and the demurrer was overruled because the promise was extended to several of the former as well as the latter, and the due interpretation given to the words promised respectively.'' The rules meant that several causes of action should be put and included in one count, but that the plaintiff should have all the benefit, as if his causes of action were set out in separate counts, and that the promises to all the causes of action might be expressed by the words "promised respectively." THE report of the Receiver Committee, which we give elsewhere, is drawn up with much ability, and written temperately and distinctly. It has already effected one important good, that it has stayed the Solicitor-general for England from proceeding with his judgment bill in the shape he originally introduced it. He has adopted the suggestions of the Committee, which were principally derived from the evidence of Sir Edward Sugden. As it origi nally stood the power of appointing a receiver pros pectively was abolished, it is now proposed to be given in cases where the debt exceeds £150. The whole character of the bill is altered. We judge from the readiness to change his own views on this and other occasions exhibited by the English Soli citor General that he is of a very plastic disposition. He has not much knowledge of the subject or of the peculiarities of Irish law and practice, and takes up too readily any statements that may have been made to him. Take, for example, the following sentences: "Judgments sometimes stood over for fifty or sixty years, and they were frequently regarded as if they constituted the estate itself. The result was that a man wanting to sell an estate had to make out a title to all the incumbrances, and it therefore became necessary to induce all parties concerned to concur in the conveyance of the land; hence not one deed, but frequently five or six deeds became necessary, and sometimes five or six sets of deeds were required, and the expenses thus occasioned were much increased by the operation of particular acts of Parliament. There were even cases in which judgment creditors had bad judgments against themselves, and so there was judgment upon judgment, each a charge upon the land, and therefore it was almost impossible to make out a good title." The reporters of the London papers-(we have quoted from the Times)-are wonderfully quick, as a general rule, in catching the Speaker's meaning; but it is possible, not being familiar with legal questions, they may have mistaken that of the Solicitor General; we incline, however, to think not. If our memory be accurate, he had been correctedduring the progress through the House of the Incumbered Estates Bill of last session-by Mr. Sadlier in some of the mistakes he has again fallen into. If the money be forthcoming, and it be desired to extinguish the judgment, the process is very simple, by entering satisfaction on the Roll, and no deed is required. We also take leave to inform the Solicitor General, that a judgment is not a charge upon a judgment, and that there are no words of any act of parliament that make it so; and that the contrary has been decided in this country. We have great respect for the abilities, for the learning, for the distinguished name of the Solicitor General; but we deprecate again, as we have done |