home to a party, the Court will not assist him | ficiency, will be refused with costs.

If this Court who has been inactive in prosecuting his own claim.- confirm the order of the Master of the Rolls, such a Here everything concurs to show that the Messrs. decision will infect the community with a looseness of Hallowes and Hamilton were aware of the proceed-practice; all that was done is to be undone, and we, ings; that they had notice through the notice-office is who at considerable expense have established our claim clear, and the presumption is, that when the notice for £14,000, will have to go all over the same ground has been transmitted through the office and left at the again. solicitor's office, it has reached the hands of the solicitor. Better abolish the noti e office at once, if a defence like this can be set up. [The Lord Chancellor.-Suppose it did reach the hands of one of the clerks in the office who burned it, would you in such a case presume that it reached the solicitor's hands. and would the client be bound by that service? The Lord Justice of Appeal-Is there any case, that decides that a notice through the notice office is binding?] What we say in answer to the Lord Chan cellor is, that a notice served through the office is binding, and further that that service in an attorney's office is service on the party himself; if the clerk of the notice office leave the notice it is prima facie evidence of the delivery of the notice. Observe, too, that the solicitors do not say they have not got the notice; all that is said is they don't remember having got it. Couple, then, the facts that one notice of the 4th day of June is left unanswered, and the other notice, it is alleged, never received; and the case appearing over and over, in the Legal Diary for more than a year, does not the strongest presumption arise of the knowledge by the solicitors that the case was being heard which they now pre:end they know nothing about? That notice of the 20th of June was quite as strong as if the claimants were mere parties to the cause petition. The Messrs. Moss were bound under the orders to come into the office within a given time to file a claim or charge, by the form of advertisement for creditors under the 8th of the Master's orders (Blackham, Ch. P. 607), and by that notice was quite as much a party as if he was made a party to the cause petition, and Moss was obliged to come in and prove his claim thereunder. The solicitors for Messrs. Moss, in their affidavits, a month after they had seen the case in the Diary, come in, and the Master declines to admit them. Why? Because he had evidence amounting to demonstration that Moss's solicitor had knowledge of the proceedings. A motion was made before Master Litton and he has made no rule on that motion; and no rule on a motion is precisely as strong as if the motion were refused. [Brewster, Q C.—I never heard that no rule on a motion is equal to a refusal. There is no case on the books to support such a construction.] It is a refusal. The practice of the Courts of Law and Equity are uniform on this subject, and a decision lately made in one of the Courts at the other side of the Hall, on this subject is in point-Hargrave v. Meade (9 I. C. L. Ap. xlv.). Chief Justice Monahan there says" If we held that a motion where no rule' had been pronounced might be again discussed, the raamber of motions upon oue question might be infinite." In De Montmorency v. Pope (2 Ir. Jur. 213) it was held that when the Court of Queen's Bench has pronounced "no rule on the motion" the party will not in general be per mitted to mend bis haud; and a subsequent application grounded upon an affidavit supplying the previous de

Brewster, Q.C. (with Norman, Q. C. and T. H. Synge) appeared to sustain the order of the Master of the Rolls.-Master Litton's order, if left undisturbed, would sbut out Moss and Company. Gillespie v. Alexander (3 Russell, 130) was a suit for the administration of a testator's assets; after the decree on further directions had sanctioned payments made by the executor in discharge of legacies, and had directed the fund in Court to be apportioned among the other legatee, a creditor obtained permission to prove his debt; the Master subsequently reported a debt to be due to him; but, in the meantime, the fund had been apportioned and part of it had been paid over, while the remainder had been carried to the account of particular legatees, and it was there held by Lord Eldon that the creditor who thus came in at the eleventh hour to claim his demand was entitled to receive out of the funds remaining in Court, not the whole debt but a part of it, bearing such a proportion to the whole, as the legacies given to those legatees bore to the whole amount of the legacies given by the will. Now, here is a case not nearly as strong as that decided by Lord Eldon,-we claim to be entitled to an enormous sum of money, and are we to be shut out from proving our claim before the Master? Cattell v. Simons (8 Beav. 243) was where a bond creditor proved his debt under a decree in a creditor's suit, and he also claimed to have an equitable mortgage for the amount: the matter stood over to amend his charge, &c., but he neglected to do so and was reported a bond creditor only: the estate was sold, and the money actually paid into Court, and an apportionment directed: some time after, his personal representative presented a petition for liberty to go in, and establish his mortgage, alleging that he had recently discovered that the charges had not been amended, but the party in that case was refused the liberty we now seek for. One might think that this case of Cattell v. Simons was against the Messrs. Moss and Co.; but no-why was that application Jefused? Because nine years had elapsed before he went in, and it was therefore dismissed with costs.

Warren, Q.C. (with whom was W. M. Johnson), replied on behalf of the petitioners.

The following is an outline of the judgment of the Master of the Rolls.—His Honour stated that it was alleged by Messrs. Hallowes and Hamilton that they never received the notice from the solicitor for the petitioners disallowing their claims; but it was regularly initialed by the notice-office clerk, and stamped with the notice office stamp; and from the regularity with which that office was conducted, he must assume that the notice was duly served; although of course he did not doubt, from the allegation of Messrs. Hallowes & Hamilton, that it was by some accident mislaid by one of their clerks, and did not come to their hands. It appeared,

liberty was given to Moss & Co. to go in before
the Chief Clerk and prove what was due against the
estate of Henry Davies, under the decree in the first
suit. Sir John Romilly thus had taken a different
view from the Master, and considered that Moss & Co.
had a prima facie case. Gilbert Winter Moss thought
it better to make the claim in the Irish suit, in which
the real estate of Henry Davies would be realised.
It was alleged by counsel that Gilbert Winter Moss was
a party to the suit; but this was not the case. There
had been very great neglect in this case; but as
the real estate was not sold and the funds were
not realised, the question was, whether, having
regard to the authorities, all inquiry as to the
claim of Moss & Co. should be shut out. The
decision of the House of Lords, in Montefiore
v. Browne (7 House of Lords Cases, 269) affir.n
ing Gurney v. Lord Oranmore (5 Ir. Chan Rep.,
477), appeared to his Honor to be at variance
with the Master's decision. Lord Cranworth, in giv-
ing judgment in Montefiore v. Browne, said:—“The
only remaining question is, on a matter of form, whe-
further directions it was consistent with principle and
practice to let in the creditor to insist on the claim
under the deed. I think that may be done. The
estate, or the money produced by its sale, is in the
nature of a fund in Court. The practice in such cases
has always been, at least in modern times, to let in
all claimants, whatever decree may have been made
for its distribution. This was done in Gillespie v.
Alexander (3 Russell, 130), which appears to me to
be a much stronger case than the present; for there
the fund was hardly, within the meaning of the rule,
a fund in Court. The decree had been made, appro-
priating the fund amongst the several legatees. Many
of those legatees, to a large amount (above, I think,
£10,000), were infants and married women; and, for
some reason connected with their character, their
shares of the fund were retained in Court, and carried
to their separate accounts. Now, it has always been
considered that, when a fund is carried to a separate
account, it is, in the strongest possible way, appro-
priated for the benefit of the party to whose account
it is so carried; and it is well known that, in order to
get that fund out of Court, the person to whose
account it has been carried presents an ex parte peti-
tion. It is entirely his own fund, and nobody else is
supposed to have any interest in t. But, in that case,
Lord Eldon (a judge very little inclined to deviate
from the strict rules of the Court) held that, according
to the practice of the Court, a prior claimant having
come forward, and having established his right, it was
competent to the Court to apply the fund in Court
rateably with that which had been got out by other
parties, in payment, pro tanto, of that creditor's debt;
leaving him, as to that portion which had been got
out of Court, to apply to the legatees to obtain pay-
ment from them. It appears to me that that is a
much stronger case than the present, and one upon
which your Lordships may very safely act. There
can be no doubt but that relief might be had by a
supplemental bill, or by a petition in the nature of a
bill of review; but there can be no reason why this
unnecessary delay and expense should be occasioned.

however, that between April, 1862, and June,
1863, the cause was twelve times in the Legal
Diary, and Messrs. Hallowes & Hamilton, on the 16th
of June, 1863, saw the name of the cause in Master
Litton's list in the Legal Diary; and having appeared
before the Master, they sought that he should post-
poue the signing of his final order; but he properly re-
fused to postpone signing it. But it appeared from Mr.
Nalty's affidavit that the Master stated that the Messrs.
Moss should, if so advised, serve a distinct notice of
motion for liberty to file a charge, and take a separate
order at their own expense.
His Honour could
not assume that the notice of 20th of June, 1862,
which appeared to have been served through the notice-
office, was not served; and, if served, the delay of
Messrs. Hallowes & Hamilton was inexcusable. But,
if they did not receive the notice of the 20th of
June, 1862, they admittedly received the notice of
the 4th of June, 1862; and they should have
made some inquiry between June, 1862, and June,
1863, as to whether the claim of their clients
was allowed. The affidavit of the petitioner, Rich-
ard Hastings Graves, stated that he did not dis-ther, after the Master's report and the decree on
pute the claim of the trustees of the marriage settle-
ment of William Davies, which he would otherwise
have done; and that, if the claim of the said Messrs.
Moss & Co. was admitted, the fund for payment of
the debts of Henry Davies would be wholly deficient.
Mr. Nalty stated, in his said affidavit, that Messrs. Moss
& Co. filed their bill in the English Court of Chancery,
on the 27th of November, 1860, against the minor
respondents and Thomas Davies, praying for an ac-
count of the sum due to them on foot of their said
claim, and an account of the assets, and a sale of
the estate of the said Henry Davies; that an answer
was filed to the said bill, alleging that, if the account
between Moss & Co. and the estate of Henry Davies
were taken, it would be found that no balance whatever
was due to the said Messrs. Moss & Co.; that
since the filing of the said answer no steps what-
ever had been taken by the said Messrs. Moss
& Co. to prosecute the said suit to a hearing,
or have the said account taken; and the affidavit sub-
mitted thas the claim of Messrs. Moss & Co., which
was of a very intricate character, could (the parties
acquainted with the facts being on the spot) have been
investigated with less expense and delay than in the
present suit, if that claim was well founded. The state-
ment in the affidavit, of the proceedings in the English
Court of Chancery, was not correct. It appeared
that a motion was made before the English Master of
the Rolls, on the 20th of June, 1861, in the causes
of Holt v. Davies and Moss v. Hamilton, for a stay
of the proceedings in the second suit (which were the
proceedings adverted to in Nalty's affidavit); and
counsel for the defeudant, Thomas Davies, and for
the petitioners, Thomas Edward Moss and Gilbert
Winter Moss, consenting that the motion should be
treated as a motion for a decree in the said suit of
Moss v. Hamilton, it was orderd by Sir John
Romilly that certain accounts should be taken;
said accounts being of the sum due to Moss &
Co. from the estate of Henry Davies, and an ac-
count of the securities held by Moss & Co. to
secure payment of what should be found due; and

I

Complete justice is done by making the respondent look over Messrs. Moss & Co. as parties to this pay all the additional costs which have been occasioned by the imperfect manner in which the claim was brought forward. It was argued that this is not the case of a person who had not come in under the decree, but afterwards sought to be let in on terms; for here the respondent, or those for whom he was a trustee, did come in under the decree, though he omitted to rest his claim on the deed of the 24th of June, 1823; but this makes no difference in principle; and, considering that the infirmary, by Denis Browne as its trustee, was an equitable incumbrancer, by virtue of the provisions of the settlements of June, 1823, and that the appellants must be considered as having had notice of that incumbrance, I think that the Court did right in admitting the respondent, as the representative of the trustee of the infirmary, to establish his priority. The result therefore is, that the appeal must be dismissed, with costs, and the cause remitted back to the Court of Chancery in Ireland, with a declaration that the respondent, as trustee for the infirmary, ought to be charged with all extra costs occasioned by the demand not having been, in the first instance, rested on the title under the deeds of June, 1823." His Honour thought the decision in that case at variance with the decision of the Master. The Master's order must therefore be set aside; and Moss & Co. must be at liberty to file a charge on foot of their demand. He would reserve the question of costs; because although, if their claim was not disputed they must pay the costs of obtaining a separate report, yet if their demand was litigiously opposed it was necessary that the Court should have control over the costs to be incurred; and the party who should file a discharge to the claim of Moss & Co. should understand that he would be fixed with any costs incurred beyond what was necessary for a fair investigation of the claim. It was surprising that the party having the carriage of the proceedings should have pressed the Master to make the order appealed from, where Moss & Co. would, from the amount of their demand, appeal to the House of Lords, if the Master's report should be affirmed; and where the House of Lords would of course follow their own decision in Montefiore v. Browne.]

suit. What is the notice of the 4th of June?— merely calling on Moss to furnish to the solicitor for the petitioner an account verified by affidavit setting forth the shares and securities which were deposited with the firm of Moss & Co. by Henry Davies, whose assets were about being administered or in the course of administration. Well, the Messrs. Moss never complied with the terms of that notice, but surely that was not a matter in Court; that was not filing a charge in the Master's Office. The notice as to the disallowance of the claimants' claims was not of any disallowance by anyone, save the executor; not a disallowance by any judicial body. Now, this large claim, is it to be disposed of in this way? is this large claim to be summarily disposed of without any hearing of the parties, and without being in any manner whatsoever adjudicated upon. That is a strong proposition, and, if final, a very severe measure. think, then, this claim ought not to be disallowed without adjudication. No doubt, some fatality occurred whereby the second notice did not reach them. I think the order of the Master of the Rolls has so far met the justice of the case. The only question now to be considered is, who is to pay the costs of the application to the Master of the Rolls. Vary the order of the Master of the Rolls, by expunging therefrom the direction "that the Master be at liberty, if he shall so think fit, to re-consider the claims, if any, of the parties who have proved, if their claims were unopposed by reason of the claims of Moss & Co. not having been sooner brought forward," and the order of the Master of the Rolls must also be varied in so much as it reserves the question of costs. Mr. Gilbert Moss must pay the petitioner in this matter the costs of the motion before Master Litton on the 19th January, 1864.

THE LORD CHANCELLOR.-The Court has frequently permitted claimants on the assets of a deceased party, when the money is in Court or an estate unsold, to come in and establish their claims. It has been urged at the bar that the Messrs. Moss & Co. are parties to the petition, and that they became parties by the filing of their charges, or, rather, making their claim to Mr. John Litton, the solicitor for the petitioner. By the 33rd General Order of 1851, every person who shall have filed a charge in the Master's office shall be deemed to be a party to such petition as fully and effectually as if he had been made a respondent thereto and served with the notice of the petition. It strikes me that this proceeding of making the claim cannot be regarded as a proceeding in Court at all; it is external to the proceedings in Court. The notice of the 4th of June was not in Court. Well, then, no charge whatever is filed in Court though made to the solicitor. I cannot, then,

THE LORD JUSTICE OF APPEAL entirely concurred in what had fallen from the Lord Chancellor. No one can for one moment pretend that there was any adjudication on the claims made by the parties concerned. Counsel for the petitioner, although pressed, have not cited any case to show that a service of notice through the notice office is conclusive evidence of the notice having reached the hands of those for whom it was intended. The view the Lord Chancellor takes perfectly meets the justice of the

case.

Court of Queen's Bench.

[Reported by William Woodlock, Esq., Barrister-at-law.]
[BEFORE O'BRIEN AND FITZGERALD, JJ.]

WAKEFIELD v. SMITH.-June 11, 24.

Ejectment for non payment of rent-Prior judgment in an action for the same rent-Maxim of factum transit in rem judicatam.

The recovery of a judgment and issuing of execution in a personal action for rent form no bar to a subsequent ejectment founded upon the non-payment of the same rent, where the judgment and execution have been unproductive; and the maxim of factum transit in rem judicatam does not apply in such a

case.

The nature of the action of ejectment as distinguished from a personal action for rent is not altered by the Common Law Procedure Act of 1853, and it still remains an action essentially for the recovery of the possession of the land.

DEMURRER.-The action was in ejectment for nonpayment of rent; and the summons and plaint complained that the defendants, John Smith and Emily Smith, held part of the lands of Rogerstown, in the barony of Balrothery East, and county of Dublin, as tenants to the plaintiff from year to year, at the rent of £478 163.; and that the sum of £478 16s. being for one year of such rent due and ending the 1st May, 1864, was due to the plaintiff. To this the defendant, John Smith, pleaded, first, a set-off; and secondly, "that at the time of the commencement of this action there was not one year's rent in arrear in respect of the lands in the summons and plaint in this action mentioned, because said defendant says, that after the 1st November, 1863, and after, the sum of £269 18s., being the first half-year's rent endorsed on the plaint accrued due; to wit, on the 3rd December, 1863, the plaintiff in this action issued his writ of summons and plaint forth of her Majesty's Court of Common Pleas in Ireland, in a certain action wherein he, the now plaintiff, was plaintiff, and the said now defendants, John Smith and Emily Smith, also a defendant in this action, were defendants; and by said writ of summons and plaint the said plaintiff complained that the said John Smith and Emily Smith were indebted to him, the said plaintiff, in the sum of £638 for money payable by said John Smith and Emily Smith to the said plaintiff for the said John and Emily's use and occupation by the plaintiff's permission of certain lands, messuages, and premises of the plaintiff, the particulars whereof were endorsed on said writ of summons and plaint. And the said defendant saith that the endorsement on said summons and plaint contained, amongst other items, an item in the words and figures following, that is to say, "Nov. 1, 1863. To half-year's rent due on this day, £239 8s." And defendant says that the lauds, messuages, and premises referred to in said last-mentioned writ of summons and plaint are identical with the part of the lands of Rogerstown, dwelling-house, and offices therein described in the summons

and plaint in this action, and are not, nor is any part thereof, other or different; and that the above mentioned sum of £239 8s. so contained as aforesaid in the endorsement on the summons and plaint in said action in said Court of Common Pleas is identical with the sum of £239 8s., being the first item in the endorsement on the plaint in this action contained. And the said defendant saith, that upon the 3rd day of February, 1864, he filed certain defences in said action so pending in said Court of Common Pleas; and that upon 17th February, 1864, the plaintiff in said last-mentioned action filed certain replications to some of said defences; and that certain issues having been settled for trial, and same having been afterwards duly tried, such proceedings took place in the said cause, that afterwards, to wit, on the 19th March, 1864, it was considered that the said Francis Wakefield should recover against the said John Smith and Emily Smith the sum of £434 18s., with 6d. for his expenses and costs as found by the jury therein aforesaid, together with £89 1s. 11d. for costs, making together the sum of £524 0s. 5d.

And the said de

fendant avers that the said last-mentioned sum so recovered as aforesaid included the sum of £239 85., being the first item endorsed on the summons and plaint in this action; and afterwards, on the 24th March, 1864, the plaintiff caused a writ of fieri facias to be issued upon foot of the last-mentioned judgment, whereby the sheriff of the county of Dublin was commanded that of the goods and chattels of John Smith and Emily Smith he should cause to be levied in his bailiwick the sum of £524 0s. 5d. sterling, lately adjudged to said Francis Wakefield for debt and costs by the judgment of said Court on the 19th March, 1864, as it appeared to said Court of record; and that he should have that money, together with interest on the sum of £524 Os. 5d. at the rate of £4 per cent. per annum from the 19th March aforesaid before said Court at the Queen's Courts on the 7th day of April then next coming, to render to the said Francis Wakefield for the debt and cost and interest aforesaid; and that he should do all such other acts as by an Act passed in the 16th and 17th years of her Majesty's reign he was in that behalf commanded to do, and that he should have then there this writ. And the said plaintiff afterwards seized and took thereunder the goods and chattels of the now defendant, John Smith, to the value of, to wit, £125 3s. 3d.; and afterwards, and before the commencement of this action, the said sheriff filed his return to said writ in the words and figures following:-" By virtue of this writ to me directed I have caused to be made off the goods and chattels of the within-named defendants, John and Emily Smith, to the value of £125 3s. 3d., part of which sum, £1 6s., I have paid to James Smith, poor-rate collector of the premises in which said goods and chattels were taken for balance of poor-rate due 9th September, 1863, on said premises, and the residue of said sum of £125 3s. 3d. I have ready before our said lady the Queen to render to Francis Wakefield in part satisfaction of his debt and damages within specified. I further certify to our said lady the Queen that the said John and Emily Smith had not, at the time of the delivery of the writ, any more goods or chattels in my bailiwick whereof