COURT OF CHANCERY. [Reported by C. H. Foor, Esq., Barrister-at-Law.]

O'NEILL . INNES.-April 16. Practice—Amendment of the notes of a Decree. The 98th General Order (1843), limiting the time for application to amend a decree to 6 days after the decree has been pronounced, will be construed strictly, and the only remedy is by petition to rehear.

THIS suit had been instituted to take an account of monies and profits received by the respondent while in possession of a weir, the property of the petitioner, under a certain agreement whereby the respondent was to work the weir, and to pay one half the profits to the petitioner, and to retain the other half himself, until such time as he should be repaid the sum of £120, which he had advanced to the petitioner. The decree in this suit was pronounced on the 3rd of February last. The petitioners' solicitors served the draft notes of the decree on the respondent's solicitor, upon the 10th of February, but no notice was taken of them. On the 2nd of March, by the directions of the Registrar, a formal letter was written to the respondent's solicitor. No answer being returned, the Registrar settled the draft decretal order on the 6th of March, but delayed signing it for some days. On the 8th of March the draft notes were returned by the respondent's solicitor, altered by him. On the 9th of March the Registrar partially altered the decretal order, but did not sign it, no communication having been made on the part of the respondent on the 27th of March, the decretal order was taken out, and a summons issued thereon, whereupon notice of this motion was served-leave to do so having been obtained as far back as the 13th of March.

works of the weir, that the decree as it stood deprived the respondent of his rights. His books showed a large expenditure. The case was analogous to that of a mansion house blown down by a storm, and rebuilt by the mortgagee in possession. That the respondent was entitled to credit for interest on monies expended in wages, &c., &c., on the analogy of dealings between partners.]

J. E. Walsh, Q. C., contra.- This motion is opposed to the settled practice of this court. By the 98th General Order (1843) an application to amend the notes of a decree shall not be made later than the 6th day after the same shall have been pronounced by the court. The only case bearing upon the point is that of Boyd v. Belton (8 Ir. Eq., 126), where a party applied to vary the notes of a decree as to an omission of costs. It was permitted under the peculiar circumstances of that case, the Lord Chancellor observing that the next motion of this sort would be dismissed, as it was hearing the cause over again on motion. This is a stronger case than that.

THE LORD CHANCELLOR-I must refuse this motion, with costs. If the parties wish to vary this decree, they must present a petition for a rehearing.

DUNNE v. DOYLE—April 17.

Statute of Limitations—Decree in Equity—

Revivor.

Where a final decree has been made, directing the payment of a sum of money, the Statute of Limitations runs from the day on which the decree was pronounced; and a petition of revivor, filed after the lapse af 20 years from the above date is barred; notwithstanding that permission to file the petition had been obtained in the Rolls prior to the expi ration of the 20 years.

Semble, Where a husband proves a will in right of his wife, and the wife survives him, she is liable to a devastavit for the assets which came to her husband's hands.

À. Brewster, Q. C., now moved on behalf of the respondent, that the draft notes of the decree should be varied, "by directing an account to be taken of all sum or sums of money advanced by the respondent to the petitioner over and above the said sum of £120, with interest upon the advances from the period of THIS was a petition of revivor, filed by James Dunne same being advanced respectively, and that in taking and John Dunne, administrators of William Dunne; such accounts as directed, the Master might be direct-deceased, against Anne Doyle. The petitioners filed ed to allow interest on foot of all money advanced by the respondent for and on account of the said weir, as well from as subsequent to the time John Sheehan (the servant of the respondent) took possession of same, of all monies laid out and expended in the purchase of goods, matters, and things supplied for the making of the said weir and fishery, and in payment of workmen's wages, from the period of such respective advances and payments. And, further, that said notes be also varied by directing the Master to take the accounts of John Sheehan, if he shall be absent from the country, as prima facie proof, without any qualification, subject only to the rights of the petitioner to surcharge same." [Counsel contended, that unless interest was allowed on the monies expended by the respondent on the

their petition on the 27th of Sept., 1859, and charged that William Dunne (deceased), on the 24th of Jau., 1835, filed his bill in the Equity Exchequer against Thomas Doyle and Anue Doyle, his wife, praying an account of the personal estate of Mary Doran; deceased. On the 29th April, 1839, a final decree was pronounced by said court, but was not signed until the 30th June, whereby the respondents were ordered to bring into court £144 before the 31st July. Thomas Doyle died in the year 1852. William Dunne died on the 11th of Oct., 1856, intestate, and letters of administration were granted to the present petitioners, on the 23rd of December, 1858. The amount mentioned in the original decree with the costs of same suit had never been paid by either Thomas or Anne Doyle. The petition pray

recting the minor to execute the disentailing deed, in asmuch as the statute in question did not apply to Ireland.

J. C. Lowry appeared for the intended wife of the minor.

On the following day—THE LORD CHANCELLOR-1 am very doubtful whether the 18 & 19 Vic., cap. 43, extends to Ireland. That Act gives a minor, with the sanction of the Court of Chancery, power to make a valid settlement. The current of decisions upon Acts of Parliament goes to show that the words "Court of Chancery" mean the Court of Chancery in England, and that "The Lord Chancellor" means the Lord Chancellor of England. It has been lately held in the Court of Queen's Bench, that the Common Lodging House Acts do not apply to Ireland, although there is no special exclusion of it from their operation. Reg. v. The Guardians of the Mallow Union (5 Ir. Jur. N.S. 164). Having, therefore, this doubt, I can not make the order sought for by the petition.

The following are the material portions of the order made: Declare that the said report of the Master's do stand confirmed, save so far as it declares that the minor can make a valid and binding settlement under the powers conferred by the 18 & 19 Vic., cap. 43— the court not being satisfied that the said Act gives power to the Court of Chancery in Ireland, in such cases. Declare the said marriage to be a fit and proper one, and that the minor be at liberty to execute a deed of settlement and of disentailer on his attaining 21 years of age, and that the minor be at liberty to exccute articles of agreement by way of contract for the execution of such deeds of settlement and disentailer, on his attaining 21; and such articles may contain a clause declaring that, in performance thereof by any deed to be executed, the said minor may vary the same, so as to introduce provisions in favour of his mother, if he then desires; and upon execution of such articles, the said minor and the said may be at liberty to marry.

COURT OF QUEEN'S BENCH. [Keported by JOHN Hezlet and William Barlow, Esqrs., Barristers-at-Law.]

The Queen, at the PROSECUTION OF ROBERT HUNTER, v. THE MAYOR OF THE BOROUGH OF SLIGO. April 19.

Burgess Premises-Description of. The premises out of which A. claimed to be qualified to be enrolled as a burgess on the burgess roll of the Borough of S. were described in the rating books of the poor law union of S. as "a store, and coal yard: Held-That this was a sufficient description within the 30th section of the Municipal Corporation Act, 3 & 4 Vic., c. 108.

tional order "that a mandamus should issue directed to John M'Carthy, the Mayor of the Borough of Sligo, commanding him as such mayor to insert the name of Robert Hunter, as a burgess, on the burgess roll of the western ward of the borough of Sligo, on the ground that he, the said Robert Hunter, is duly qualified to be a burgess of the said western ward; and that, possessing the qualification, and having complied with the requirements of the statute in that behalf, by reason whereof his name had been inserted in the town clerk's list of the burgesses of the said western ward; he should have been retained and enrolled on the said burgess roll, at the revision court held on the 7th and 8th days of November, inst.," unless cause shown.

It appeared that the name of Robert Hunter had been inserted on the burgess roll of the western ward of the Borough of Sligo in the year 1858, and that in the notice of claim made by him in that year the premises out of which he claimed to be qualified were described as "a store and yard in Wine-street;" that on the first of September, 1859, he claimed to be enrolled as a burgess for the said ward, in respect of the same premises; but that inasmuch as the premises were, by a recent description in the rating book of the poor law union of Sligo, described as "a store and coal yard," the said John McCarthy, acting as mayor. in conjunction with his assessors, expunged the naine of the said Robert Hunter from the burgess list on the ground that the said premises were not described as comprising a house, warehouse, counting-house, or shop, occupied either separately or jointly with land, as required by the 30th section of the Municipal Corporation Act (3 & 4 Vic., c. 108).

Sir Colman O'Loghlen (with him John Harkin,) showed cause. This motion comes before the court under the 49th sec. of the Municipal Corporation Act. The words of the 30th section are, that every man of full age, who shall occupy within a borough "any house, warehouse, counting-house, or shop, which, either separately or jointly with any land within such borough," occupied therewith by him as such tenant, shall be of the yearly value of not less than £10, such person shall be entitled to be enrolled as a burgess of such borough, and to vote, &e. The words "house, warehouse, counting-house, or shop," are identical with the words used in the English Act, 5 & 6 Wm. 4, cap. 76, s. 9; and the construction put upon the section in England is, that the description must include some of those words. [Hayes, J.-May not store mean warehouse?] No doubt it may; but what we submit to the court is, that the description must follow the words of the Act. Again, there is here a supplementary qualification, namely, a coal yard; and the Act is express, that the supplementary qualification must be "land." [Fitzgerald, J.-Was there any evidence as to the nature of the premises?] No; it is not to the nature of the premises we object, but to the desscription.

Macdonagh, Q.C., (with him Hemphill, Q.C.)The objection here is to the description of the premises, and not to their nature; and what we contend for is, that the premises out of which the prosecutor Nov. 21, 1859.-Hemphill, Q.C., obtained a condi- claims to qualify,, are of such a nature as the Act

contemplates. The word store is a manifest synonyme
for shop. In America, store means a shop. In Todd's
Johnson's Dictionary, the meaning given to the word
store is "a storehouse or magazine;" and in France,
magazine is the word used to express a shop. The
real question here is, whether the prosecutor is in oc-
cupation of premises contemplated by the Act. It is
hard that he should suffer on account of the misdescrip-
tion of the premises by the poor law valuator. With
regard to the supplementary qualification, counsel cited
Robert Sweetman's Case (Alcock's Registry Cases, 27).
[O'Brien, J.-It is clear that Crampton, J., in that
case was of opinion that the supplementary qualifica-
tion need not be described as land; that it was suffi-
cieat if it was in the nature of land. He says, "When
the Legislature has used, in the same sentence, the
words house, counting-house, &c., as contra-distin-
guished from land held therewith, they must be under-October, 1857, in which year he was duly enrolled a
stood to have meant such land, &c., so used as land is
generally used when held conjointly with a house in a
town or city—namely, as a garden, field, curtilage,
yard, or other appurtenance to the principal with which
it is conjoined.]

Harkan, J., in reply.

Cause shown disallowed.

[BEFORE THE FULL COURT.]

THE QUEEN, AT THE PROSECUTION OF R. J. ROBB, V.
J. M'CARTHY, MAYOR OF SLIGO.-April 19.
Revision of Burgess Roll-Qualification of Bur
gess-Occupation-3 & 4 Vic., c. 108, ss. 30, 49

-Mandamus.

At a revision of the burgess roll of the borough of
S., the revising officer expunged the name of R.
J. R., on the ground that A. O'N. had an interest
in the occupation of the house out of which R. J.
R. claimed his franchise. R. J. R. applied for
a mandamus directing the Mayor to insert hus
name on the roll.

Held-That "occupation," in 3 & 4 Vic., c. 108, s.
30, means “exclusive occupation.”
Upon an affidavit made by R. J. R., that he was
the exclusive occupier of the house, the court
granted the mandamus.

In this case the prosecutor obtained in Michaelmas Term, 1859, a conditional order for a mandamus to compel the Mayor of the Borough of Sligo to insert the prosecutor's name in the burgess roll of that borough. The case was partly argued in last Hilary Term, when the court ordered that it should stand over till this Term, to allow both parties an opportunity of filing additional affidavits. From the prosecutor's affidavits it appeared that in the year 1855 he married the daughter of Mrs. Anne O'Neill, a widow, who was a licensed publican, and carried on the busi

ness of her late husband in the house known as
O'Neill's, 27 High-street, in the borough of Sligo,
which was duly constituted a borough under the Mu-
nicipal Corporation Act (Ireland), 3 & 4 Vic., cap.
108; that on the 23rd May, 1856, Mrs. O'Neill gave
up to Robb the said house and premises: that he has
resided ever since, and still resides there; that the
said house and premises and every part thereof are in
his sole occupation; that Mrs. O'Neill has had no right,
title, or interet thereto since the 23rd May, 1956;
that since that date she has not exercised or attempted
to exercise any control over the said premises, or over
the business carried on therein; and that during all
that period Mrs. O'Neill has never occupied the said
house or any part thereof, except occasionally as a vi-
sitor; that Robb has been a resident householder in
the borough of Sligo since a date prior to the 31st of
burgess for the western ward of Sligo; that at the
revision of burgesses held in November, 1858, he was
duly enrolled a burgess for said western ward, in
respect of the house and premises No. 27 High-street,
in the said borough, which are described on the borough
poor-rate book for 1857, as No. 246-High-street,
house, offices, and yard; value, £15. Richard John
Robb, rated occupier." That in the rate-book for
1858 the same premises are described as "No. 757—
High-street, offices and yard; value, £16. Richard
John Robb, occupier." That on the 10th November,
1858, the town clerk published a revised list of the
burgesses of the western ward, and that his same was
inserted therein as "Richard John Robb, High-street;”
that his name is inserted in precisely the same manner
in the list of burgesses published by the town clerk on
the 20th September, 1859; that the premises out of
which he is thus rated are identical with those in respect
of which he had been enrolled as a burgess; that his
name was inserted in said list and books as rated occu-

pier and tenant of said premises, which are rated to
the value of £10; that at the revision in November,
1859, the mayor and one of the assessors refused to
enrol him as a burgess, on the ground that "his dwell-
public house, was licensed as such public house, by the
ing house portion of said premises, being an inn and
magistrates, in the name of Mrs. Anne O'Neill," not-
withstanding that he proved before them that A. O’N.
had not, since 31st August, 1857, any interest what-
ever in, nor was she in any manner whatever liable in
respect of the said premises, or of the business car-
ried on therein; and that the license was taken out in

her name merely for the privilege of continuing the
name of O'Neill over the door; that he had paid for
the licence with his own money. The facts, which ap-
peared in the affidavit filed as cause, were these:-
The mayor deposed that when Robb applied to have
his name inserted in the burgess roll in November,
1859, it was objected, and not contradicted, that Mrs.
O'Neill had taken out a publican's license for the pre-
mises 27 High-st., in 1859; that it appeared in evi-
dence that at the time of Robb's application she still
was entitled to carry on the trade of a licensed publican
in those very premises out of which Robb claimed to be
enfranchised; that it was proved that Mrs. O'Neill, in
compliance with the excise laws, had made and signed
in that year a declaration of ownership of these pre-

That

mises, and obtained a certificate thereof signed by the Every licensed publican who seeks to have his license requisite number of householders, previous to the re-renewed, must obtain a certificate of good character newal of her license for 1859; that her name appears and good conduct in his business during the past year. over the door, as a licensed retailer of spirits; that Formerly that certificate was signed by six householders consignments made to the establishment are directed of the parish-3 & 4 Wm. 4, c. 68, sec. 1. to O'Neill and Co., and that Robb's name does not ap- enactment has been altered. The 17 & 18 Vic., c. 89, pear in any way connected with the establishment; sec. 11, enacted that a similar certificate shall be signed that Robb admitted all these facts to be true, and that by two or more justices of the peace; and without therefore he (the mayor) refused to retain Robb's name that certificate the excise officers cannot renew the lion the burgess roll, as it seemed to him that Mrs. cense. In every one of those certificates since May, O'Neill had an interest in the occupation of said house 1856, Mrs. O'Neill must have falsely represented herso long as she retained said license. Patrick M⚫Niff, self as a householder, for those affidavits state that in classical teacher, deposed that he resides in High-st., that month she transferred all her interest in the house Sligo, and has known the premises in question for up- to Robb, and has never regained any interest in it. An wards of twenty years; that in October, 1858, he appeal from the decision of the magistrates is given by subscribed his name, as a householder in Sligo, to a 18 & 19 Vic., cap. 62, sec. 2. All the licenses have certificate of Mrs. A. O'Neill, purporting that she was been renewed in the name of Anne O'Neill; therefore the owner of said house, in order that her annual li- we contend that the case made by these affidavits is cense for the sale of spirits might be renewed; that untrue: that, as is proved by a long series of acts he had frequently seen her behind the shop counter spread over three years, Mrs. O'Neill still is, and has within the last three years; that since the death of her all along been, the owner and occupier of the house in husband Mrs. O'Neill has permanently resided in said question, and that this assertion that Robb has poshouse, and still resides there, and did not at any time sessed the whole interest in that house since May, since remove to any other residence; and that the ma-1856, is a mere trick to get a voter placed on the renufacture of blacking, as well as the sale of spirits, is still carried on as formerly in that house, under the name of O'Neill. Mr. Gethin, the defendant's attorney, deposed that on the 23rd of February, 1860, he made a search at the excise office in the town of Sligo, relative to Mrs. O'Neill's license; that the excise officers informed him that Mrs. O'Neill was a licensed publican for the retail of spirits for said house, for many years past, and that she obtained a further license for the sale of tea and coffee, in December, 1856, on which occasion she made and signed the following declaration:—“I, Anne O'Neill, of Sligo, in the parish of St. John, and County of Sligo, do hereby withdraw all former entries made by me, and do now make entry of one room situate at my dwelling-place, as above, and marked with the letter H, for the purpose of storing and keeping beer, spirits, tea, and coffee, for sale by retail." That he was informed by the excise officers that the last licenses granted to Anne O'Neill for said house, were granted respectively in July last for the sale of tea and coffee, and in November last for the sale of spirits; and was further informed by the excise officers that there is not now, nor has there been within the memory of said officers, any person of the name of R. J. Robb licensed for the sale of spirits, tea, or coffee, in the town of Sligo.

Sir C. M. O'Loghlen, Q.C. (with him J. Harkan), moved the court to make the conditional order absolute, notwithstanding the cause shown.-No person who is not a householder can obtain a license to sell spirits by retail: that is one of the provisions of the 3 & 4 Wm. 4, cap. 68. Section 11 of that Act enacts that "no distiller, &c., nor any person not being a householder, shall be capable of receiving or holding a license to sell beer, cider, or spirits by retail, to be drank or consumed on the premises." Therefore if, as these affidavits state, Mrs. O'Neill was not the occupier of the house 27 High-street, she has in each year got her license renewed by means of a fraudulent representation, that she was the owner or occupier of that house.

gister, as Mrs. O'Neill could not be registered. If Robb's case is true-if he paid with his own money for the license, and if the house belongs to him, why did not Mrs. O'Neill transfer her license to him, under the provisions of the 6 G. 4, cap. 81, sec. 21? Wẻ contend that this pretended transfer of the house is merely put forward to fabricate a vote. But supposing that the transfer of Mrs. O'Neill's interest in the house to Robb was a bona fide transaction, we maintain that Robb is estopped by his long acquiescence in the frau→ dulent representations of Mrs. O'Neill, from contradicting his own acts, from which he has derived a benefit, and the acts of Mrs. O'Neill in which he has acquiesced, in order to ground his title to the municipal franchise upon his own evasion of the excise laws. The policy of those laws is, to require the licensee to be the tenant, if not the owner of the house, so that if any misconduct calls for punishment the Government may at once be able to lay hold of the party responsible for the preservation of order. Robb's conduct defeats that policy. He should not now be permitted to obtain the franchise by setting up a case the very contrary of that in which he has so long expressly acquiesced, and in substance asserted. The question whether Robb was the exclusive occupier of 27 High-street, was entirely a jury question, for the mayor and his assessors. They decided that he was not; and this court has no jurisdiction to reverse that decision.

F. Macdonough, Q. C. (with him C. H. Hemphill, Q.C.) The question of sole occupation was not raised before the mayor at the revision of the burgess lists. That point was started during the argument last Term, and the case stood over that Robb might make an affidavit as to the fact that he was sole occupier. The question that the conduct of these parties amounts to an evasion of the excise laws, or to a fraud, is wholly dehors the Municipal Corporation Act. If Robb has brought himself within the provisions of that Act, if his qualifications are those enumerated in its 30th sec. he is absolutely entitled to the franchise. No evasion of the excise laws can deprive him of that right. Robb's