COURT OF CHANCERY. MAHONEY v. O'CONNELL.-June 9. Practice-Subpæna to hear judgment. Under the 94th rule, ten days must intervene between the day of the service of the subpæna to hear judgment, and the first day of the ensuing term. In this cause publication had passed on Thursday the 10th May, and the subpoenas to hear judgment were issued and served on the same day. Trinity Term commenced on Tuesday the 22nd May. The officer of the court refused to set down the cause to be heard in Trinity Term, alleging that the subpoenas were not issued in time. The plaintiff petitioned the Lord Chancellor that the cause might be ordered to be set down. Mr.R.Greene, Q.C. for the petitioner, contended that the subpoenas had been served in time. The 94th rule required the subpoena to hear judgment to be made returnable on the first day of the next ensuing term, and though the 2nd rule orders the computation of time to be exclusive of holidays, and of the first day, it orders it to be inclusive of the last, in which case the subpoenas were issued in time. Mr. J. D. Fitzgerald, Q. C. and Mr. Sergeant O'Brien. The plaintiff was not in time. At-gen. v. Ball, (9 I. E. R. 463), though upon a different rule-the 86th-decides the construction of this. The subpoena must be served ten days before the first day of term, and exclusive of the day of ser vice, and of the two intervening Sundays; these bwere served but nine days before. The same point was decided in Rex v. Hereford, (3 B. & Ald. 581.) Mr. Berkeley in reply.—Attorney-General v. Ball shows that there is a distinction between the 86th and the 94th order. In the 86th rule the words are "ten days at least," here the words "at least" are omitted. Ex parte Farquhar, (1 Mont. & M'A. 7). The word "before" cannot alter the construction-it only shows the direction in which the time is to be calculated. LORD CHANCELLOR.-There is some doubt about this case. The 86th rule specifies that the notice shall be served ten days at least, not before the examination, but before the day named for commencing the examination. The courts in England have taken a distinction between "days" and "days at least." In Reg. v Shropshire, (8 A & E. 173), Littledale, J., says, "We must abide by what has been decided, though it appears to me that a day is a day, whether at least be added or left out." Whoever discovered that distinction, had at least the merit of great ingenuity, However, I have made inquiry from the officers of the court, and find that the construction which has been put on this rule in the office, is that which has been put on it here. It is perhaps better to follow that practice than to disturb it. I believe that to be the true construction. No rule on the petition, without costs to either party. Chancery Petition, book 3, p. 117. ROLLS COURT. PHIBBS v. FARRELL.-April 28. Practice-Motion by Receiver to let lands in the possession of a defendant. Although in general a motion to let lands in the occupation of a defendant should not be made by a receiver, yet where a receiver having advanced a sum to pay head rent, and save the lands from eviction, obtained an order to set lands in possession of the defendant, the court refused to set the order aside, upon the ground of its having been obtained upon a motion of the receiver. In this case the bill was filed to raise part of a charge of £800, of which £200 was vested in the plaintiff. In July, 1848, P. Phibbs, the former receiver, passed his final account, and the sum of £95 14s.5d. appeared due by him. Shortly afterwards, H. Boyd was appointed receiver; and at the time of his appointment, considerable sums having been permitted to accrue due, on account of head rent, ejectments were brought, and the habere executed at the suit of Lord Aldborough, the head landlord. In order to save the lands from eviction before the time for redemption expired, the receiver advanced the sum of £117 10s. 3d. pursuant to a consent whereby said advance, with interest thereon, was to be a salvage demand upon said lands. Arrears of head rent still remaining due, on the 16th day of April, 1849, the receiver obtained an order that the part of the lands in the possession of the defendant, W. Farrell, should be let. This was an application on the part of the defendant, W. Farrell, that this order should be set aside. Mr. R.C. Walker, Q.C. and Mr. P. Blake for the defendant Farrell. This order which we seek to set aside was obtained upon the application of the receiver. In Wrixon v. Vize, (5 I. E. R. 276,) it is laid down that the receiver has no right to, bring forward a motion, which should be made by the plaintiff, and the application was refused with costs on that ground; also in Bruce v. Blennerhasset, (ibid note), a similar application made by the receiver was refused, although he was required to make it by the plaintiff who served him with notice that he would hold him responsible for any rent lost by his delay; besides, in the present case, the demand sought to be raised by this suit is small, and the profit rent over which the receiver is already appointed amounts to £320 per annum, and there is also a sum due by the former receiver. Mr. Hughes, Q.C. and Mr. W. Woodrooffe contra.-The objection that the motion was made by the receiver does not apply, as a sum was advanced by him to save the lands from eviction; he thus was placed in the position of a first incumbrancer. There is still an arrear of head rent due, and if this order is set aside, the receiver may have some difficulty in recovering his demand. MASTER OF THE ROLLS.-With respect to the objection that this order which is sought to be set aside, was obtained upon the motion of the receiver, I do not think the observations of the late Master of the Rolls, in the case which has been referred to, apply. I entirely concur in the view taken by him; and in the case of Ireland v. Eade (7 Beav. 55,) it is also laid down that a receiver ought not to originate any proceeding in a cause, and any necessary application should be made by the parties to the snit, and the general rule is, that the receiver is not to apply to set lands in the possession of a defendant; he has no interest in the matter, and should not, in his character as receiver, originate such a motion. I am prepared to follow the case of Wrixon v. Vize (5 I. E. Rep.), and will not make any order on such application by receivers; but I do not apprehend that because a person happens to be in the situation of receiver he is on that account to lose rights acquired by him in another capacity, and in the present case there is no imputation whatever on the conduct of the receiver, who, under a consent signed by the parties in the cause, advanced a sum of money to redeem the lands, and this advance is the first charge on them. The receiver is thus in the position of a first incumbrancer, and does not come to the court for the purpose of making costs; so far therefore, I consider the objection technical, and will not set aside the order on that ground. In general the court will not set lands in the possession of a defendant, unless the circumstances of the case are such as to require it; but the defendant must shew that it is not necessary to do so. In this case the total rent is £490, the head rent £230, and if £90 be recovered from the former receiver, 1 think I am justified in permitting the portion of the lands formerly in the occupation of the defendant, to remain in his possession, and by setting aside the order of the 16th April, I do not think I will endanger the security of the receiver. His Honor made the following order :"It appearing to the court that the gross rent payable out of the lands over which the receiver was appointed in this cause, is £495 10s. 74d. a-year, or thereabouts, and that the head rents payable are £230 19s. 3d., leaving a profit rent of £264 11s. 44d. a-year, and it appearing that a year's head rent is due to Lord Lorton, up to and including the 25th day of March last, amounting to £152 6s. 114d., and that there is a sum of £116 6s. 2d. due to Lord Aldborough for head rent, up to and for the 1st day of May, 1849, and making together the sum of £268 12s. 34d. and it appearing to the court, having regard to the proceedings by the sureties of the late receiver, that there will probably be a fund at the end of twelve months arising from said profit rent of £264 Ils. 4 d., and the sum to be received from said sureties, which will be sufficient to pay off said arrear of head rent of £268 12s. 3d., and that the profit rent from and after the said period of twelve months, will be properly aplicable to put in a course of payment the sum of £117 advanced by the present receiver to redeem the premises, let the order of the 16th April, 1849, be set aside without prejudice to the receiver renewing the present motion if he can shew that payment of said sum of £117 is likely to be delayed unreasonably, or endangered by the non-payment of the said profit rent, and let the receiver have his costs of said order of the 16th of April, 1849, and of this motion as costs in this cause, and let the defendant abide his own costs of this motion." Lib. 284, fo. 250. BELCHER v. BELCHER. PHILAN HENNESSEY . HENNESSEY-April 28. Practice Defendant appointed Receiver in a cause. Mr. Drury, on behalf of R. Mortimer, moved that he might be discharged as receiver, and that it should be referred to the Master to appoint one in his place. Mr. Wall, for the plaintiffs in the third cause, moved that a consent in that cause, that Thomas Izod, a defendant, might be appointed receiver. The consent was signed by several of the parties in the cause, and notice had been served on the other parties. Mr. Izod was entitled to a charge upon the estate, and, in a certain event, would be come entitled to part of the property in right of his wife. His Honor made the following order :"Let said R. Mortimer, the receiver in this cause, be discharged as such receiver, and in pur O'BRIEN v. BERNARD, April, 28th. Receiver-Distress-Replevin. The Court will not make an order to stay proceed ings by a tenant in a replevin suit unless there has been some irregularity therein, and the receiver is likely to be defeated on technical grounds. In this case, on the 14th of March, the receiver distrained for rents, and notice of distress was served, and in six days after replevins were issued by the tenants whose lands had been seised. It did not appear that any rent had been paid to the receiver, or tenancy admitted. Mr. Butt, Q. C, on behalf of the receiver, now moved that the tenants might be restrained from proceeding in the replevin suits. The proceedings by the receiver have been perfectly regular. MASTER OF THE ROLLS.-I cannot decide re plevin suits. In cases where the receiver is likely to be defeated on a technical ground, or there has been any mistake or error in his proceedings, I may make such an order as you now seek; but here everything has been perfectly regular, and if I was to make the order, it would be deciding the replevin suit. BELAS v. NORRIS.-June 4th. The case of In re Bracy, (14 L. I. Ch. 299,) where it was held that under a common order directing the reference of a solicitor's bill for taxation, the Tazing Master has jurisdiction to decide a question of retainer, will not be followed in this Court. This was an application to set aside an attachment issued against Mr. Henry, the plaintiff in one of the causes, for not furnishing an undertaking to tax costs, which by order of the 8th of May he was directed to do when required. Mr. Henry objected to give the requisition, on the ground that he was not liable for the costs as Mr. Wilson had not been retained as his solicitor. Mr. W. Smyth, for Mr. Wilson, contended that he might have furnished the requisition, preserving his right to dispute the retainer before the Master, and cited In re Bracy, (9 Jur. 417, and 14 L. I. Ch. 299,) according to which case the Taxing Master, under a common order of reference of a solicitor's bill for taxation, has jurisdiction to decide the question of retainer, except as to those items in respect of which the petitioner has in his petition admitted the retainer. The MASTER OF THE ROLLS said he would not act upon the authority of that case. Mr. Smyth then proceeded to give evidence of retainer. SCOTT v. HARMANN.-June, 14. Practice-Receiver-Security. Mr. William Henderson moved that the receiver appointed in this cause might be at liberty to give security by recognizance, himself in £7,500, and three securities in £15,000, in the aggregate ones in £10,000, and other two in £2,500 each. In the case of Pigott v. Batten in this Court in March, 1849, an order was made similar to that which we difficulty in procuring security, he might be at liberty to give security by means of the guarantee societies, as he understood the banks were in the habit of accepting their security. The MASTER OF THE ROLLS stated that he would not alter the established practice of the court. QUEEN'S BENCH.-TRINITY TERM. Process-Statute of Limitations—Amendments. A plaintiff having sued out writs of capias ad respondendum against an absent defendant, and having duly filed and continued them, pursuant to the 3 & 4 Vic. c. 105, s. 7, in order to defeat the bar of the statute of limitations, will be permitted, on payment of costs, to amend formal errors in the endorsements, return, and form of the said writs, even after plea of the statute of limitations pleaded by the defendant, provided he has substantially complied with the provisions of the former enactment.* This was an application by the plaintiffs to amend the several writs of cupias ad respondendum issued and filed in this cause, pursuant to the 3 & 4 Vic. c. 105, sec. 7, in the particulars hereinafter mentioned. The plaintiffs had commenced against the defendant an action of assumpsit, for the recovery of the amount of certain promissory notes, which fell due in the year 1842, and the latter had pleaded the statute of limitations. The plaintiffs had issued the first of the above series of writs within six years from the accruing of the cause of action, and ant, had sought to keep alive their remedy by conhaving been unable to effect service on the defendtinuing the proceedings pursuant to the statute. The following are the respective dates of the issuing, teste, return-day, and time of filing, of the several writs in question : now seek, and the amount of the security was less prevent the operation of any statute of limitation, in bar of than in the present case. MASTER OF THE ROLLS.-It is contrary to the practice of the Court to make such an order as this. In some cases, however, where the amount of the security required was very large such orders have been made. I think in this case I may make the order. CAMPBELL V. BROWN.-June 14th. Practice-Receiver-Security. The Court will not make an order giving liberty to a receiver to give security by a guarantee society. This was an application that the receiver might be directed to give additional security in the place of one of his sureties, who had left the country in embarrassed circumstances. Mr. O'Donnell, for the receiver, asked his Honour whether, in the event of there being any 3 & 4 Vic. c. 105, s. 7, enacts, that "in order to the cause of action of any plaintiff in cases in which such cause of action would be barred, unless a writ of process issued and was continued for that purpose. every writ or process may be continued by alias and pluries, as the case may require, if any defendant therein named may not have been arrested or held to bail thereunder or served therewith; provided always, that no first writ shall be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, unless the defendant shall be arrested or held to bail thereunder, or served therewith, or proceedings to or towards outlawry shall be had thereupon, or unless such writ, and every writ (if any) issued in continuation of a preceding writ shall be returned non est inventus, and entered of record within one calendar month after the expiration of the return of such writ or process, including the day of such expira tion; and unless every writ issued in continuation of a preceding writ shall be issued within one calendar month after the expiration of the preceding writ, and shall contain a cifying the day of the date of the first writ, such returnɔ memorandum endorsed thereou or subscribed thereto, spe non est inventus-in process not bailable, in case of nonservice thereof, to be made by the plaintiff or his attorney suing out the same, and signed by him." 4. Jan. 13,1849 Nov 25,1848 Jan. 20, 1849. Filed. Nov. 28, 1848 have acquired a vested right, which it is now June 27, 1848 sought to divest. The object of the legislature will be frustrated if this application be granted. Brennan v. Monahan, (7 I.L.R. 545, note); Camp bell v. Smith, (5 C. B. 196,) 1 Tidd's Practice, 9th Ed. 162, MSS. case, Benson v. King, cited ib.; Roberts v. Bate, (6 Ad. & Al. 778.) The writs had been all duly issued, and had been filed, (except the last, to which the defendant had appeared,) within the period prescribed by law. The plaintiff's had, however, omitted to endorse on the second, third, and fourth writs the teste and date of the return day of the first of the series. It was apprehended that for want of such endorsements a replication to the defendant's plea of the continuance of proceedings commenced anterior to the bar of the statute of limitations, might fail. An application was accordingly made to the Court, early in the present term, for leave to amend in this respect. Several English cases were cited. As, however, the power of the Court to allow such amend ments was more fully canvassed on the occasion of the second application, and the question was therein debated more at large, it will not be necessary to say more with respect to the first, than that it was allowed, the Court considering the authorities to be in the plaintiff's favour. At the hearing of the motion, the defendants insisted on the existence of other informalities in June 9.-Mr. Andrew Vance resumed the argument against the motion. This is more in the nature of an application to issue fresh writs, and would have the effect of repealing the act. The courts have laid down the principle that they will not amend, in cases where an amendment would not have been allowed before the act. The first amendment asked for, is to make a formal return of non est inventus. Harris qui tam v. Woolford, The second application is to con(6 T. R. 617). vert the subsequent writs into an alias and pluries. Kenworthy v. Peppiat, (4 B. & Ald. 288.) The merits of the application are beside the question. Mr. Fitzgibbon, Q.C. in reply.—It is quite plain that a return of non est inventus was intended. Bilton v. Clapperton, (9 M. & W. 473, S.C.; 1 Dowl. 386, N. S.); Rennie v. Bruce, (2 D. & L. 946-51-per Coleridge, J.) The court will amend at their discretion for the furtherance of justice. R. v. Mayor and Burgesses of Grampound, (7. T. R. 701.) The attorney of the plaintiff acted under the direction of the officer of the court. [Black sult the officer of the court upon the construction the proceedings, but the Court were of opinion that these objections were irrelevant to the question then before them. It appeared that the writs subsequent to the first were in the form of ori-burne, C.J.-I deny that he had any right to con ginals, instead of running in alias and pluries style respectively. The return of the writ of the 1st of June was, that "The within-named defendant does not reside in the county of Galway." To the writ tested June 16th, it was returned that "The with in-named defendant was not to be found in the county of Galway;" and to that of November 25th, that The defendant is not to be found in the county of Galway to answer." of an act of parliament. He ought to have consulted counsel.] Kirk v. Dolby. (6 M. & W. 636;) Eccles v. Cole, (8 M. & W. 537.) The courts in England have deliberately acceded to such applications. A line has been definitely drawn by courts of law, with respect to making amendments, and what we seek are within it. Neavin v. Hughes, (9 Ir. L. Rep. 504.) The courts in England did, it is true, make a resolution against amendments Mr. Fitzgibbon, Q. C., on the part of the plain tiffs, this day moved for liberty to amend the sub-in such matters, but they were forced to abandon sequent writs, by inserting in the second the words 66 as we before commanded you," and in the third and fourth, the words "as we often before commanded you; also to amend the return of the writ tested the 1st of June, by expunging the words "does not reside," and by inserting in their place the words "is not found;" and to add to said return, and to those of the writs of the 16th of June, and 25th of November, the words "within mentioned." We seek for the amendment of mere formal slips. Culverwell v. Nugee, (4 D. & L. 30 Alderson, B.); Horton v. Inhabitants of Stamford, (1 C. & M. 773); Williams v. Williams, (10 M. &W. 174); Frodsham v. Round, (4 Dowl. P. C. 569.) Mr. Joy, Q. C., (with him Mr. Andrew Vance), contra.- -The words of sec. 7 are mandatory, not directory. The Queen's Bench and Common Pleas in England have entirely disapproved of the decisions of the Exchequer on this head, and the latter court has latterly retracted. Higgs v. Mortimer, (1 Ex. R. 711.) The return to these writs has not been made by the sheriff, or any officer of the court, but by the attorney of the party. We have already pleaded the statute of limitations, and it. BLACKBURNE, C. J.-Were the present application a res nova, I should feel considerable hesita tion in departing from or interfering with the exThere is, however, press terms of the statute. England having, in cases similar in character to authority for granting this motion, the courts in the present, where the bar of the statute would otherwise have interfered, allowed the parties to correct their slips, just as in other matters of form they have exercised a jurisdiction for the further ance of justice. I feel bound by their authority, but I am not prepared to go further. The plain tiffs may therefore amend on payment of costs. CRAMPTON, J.-I concur with my Lord Chief Justice, and think that the amendment should be allowed on the terms. It is quite plain upon a this motion, as it has been discussed, that it was the intention of the party to comply with all the requisites which the statute makes necessary in order to prevent the operation of the statute of limitatious; it is plain that within the one calendar month all the necessary steps were substantially taken by the plaintiffs' attorney, and the necessity of this application arises not out of an omission by the plaintiffs to do what was required, but by the de- motion to change the venue, the court will presume that the pleadings are before it, even though the notice of motion omit to say they would be relied on.] Mr. Fitzgerald, read passages from the al leged libel and from the defendant's affidavit to show that the case would be more fairly tried in Dublin than elsewhere, where all the witnesses resided, and where all the Company's books were kept. Mr. Whiteside, Q. C. contra.-This motion ought to be refused with costs. In the first place issue is not joined. [Torrens, J.-If that be so the motion must be refused I apprehend, unless there be clear authority on the other side. There may be a demurrer filed yet.] Mr. Fitzgerald, Q. C.-Issue is joined on some of the counts, but not on others, although it might be more regular to have it so. Boyce v. Smith, before the Court of Exchequer, (2 I. L. R. 366,) decides that the venue may be changed before issue joined on all the counts. TORRENS, J.-There must be a perfect record; and if issue be not joined on all the pleas, it cannot be perfect. We are of opinion that the motion must be refused with costs.* COMMON PLEAS. MACNEILL v. DUNLOP.-June 9. Libel-Change of venue on special grounds. In an action for libel this court will not change the venue upon special grounds, if issue be not joined all the counts in the declaration. upon EXCHEQUER OF PLEAS. MANDEVILLE v. EYRE.-June 4th. Practice-Service of Capias on Solicitor of a Person out of the Jurisdiction. Where lands were by deed conveyed to a trustee resident in England, on certain trusts, and amongst others to receive the rents thereof, and out of the said rents to pay the headrents payable out of one of the denominations of lands comprised in that deed, called East Clonkilty, and by that deed power was given to the trustee to appoint a law and land agent in this country for the purposes of carrying out the trusts of the said deed, and of paying the said rents. The Court substituted service of the capias on the land and law agent. trustee under a Mr. J. D. Fitzgerald, Q. C., with Mr. Coffey, for defendant, moved to change the venue from the county Louth to the city of Dublin. The action was for a libel alleged to have been published in a pamphlet by defendant, reflecting upon the general management of the affairs of the Dundalk and Enniskillen Railway Company, and containing certain comments having particular reference to the plaintiff, Sir John Macneill, the engineer of the Com- This was an application to make absolute a conpany. The defendant's affidavit stated, that he ditional order that the service had been deemed The defendant was a could not have a fair trial in Dundalk, as Lord good. Roden-who was a director of the Company, and deed of trust vesting certain lands, the property whose conduct the defendant, in his capacity of of the Earl of Kingston, in Eyre, upon certain shareholder, had made the subject of comment and trusts. Eyre residing in England, the process was censure was the owner of that town, and possesserved on the Messrs. Sadlier, his solicitors in this sed considerable influence over the inhabitants, the country. The action was for the head-rent of a denomination of land contained in the trust deed, majority of whom were his tenants, and acted as jurors; and that several of the directors of the and was brought by the head landlord against Company, and the plaintiff himself, had residences, Eyre. It was admitted in the affidavit of Sadlier, and great influence amongst the class of persons the estates of the Earl of Kingston contained in that he acted as the solicitor of Eyre, in respect to who were generally summoned on the record panel of the county Louth. Counsel proposed to refer the deed, but it stated that this particular denoto the pleadings to shew that a fair trial could not mination had been always in the possession of be had in Dundalk. [Mr. Whiteside, Q. C., for Lord Kingston, and in answer to a statement in plaintiff, objected to a reference to the pleadings, the affidavit on which the application was made, as the notice of motion did not refer to them. stating that he, Sadlier, had on a former occasion [Torrens, J.-I think the pleadings may be referred paid the headrent of this very denomination, he to, to shew whether the case is a proper one to stated that he had paid it on account of Lord change the venue or not.] [Jackson, J.—In a Doherty, C. J. absent. |