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PROFESSIONAL ITEMS.
I
n
Jacobson
v.
Lee (1949 2. All E .R . j 17) the
English Court considered an application by one of
the parties on a motion under Order 55, Rule 71 of
the Rules o f the Supreme Court, for an order
directing that the Master’s certificate should be
discharged or varied after the prescribed time had
expired. Order 55, Rule 71, of the English Rules
of the Supreme Court, which is identical in terms
with Order 55, Rule 75, of the Rules o f the Supreme
Court, 1905, is as follows :—
“ The judge may, if the special circumstances
of the case require it, upon an application by
motion or summons for the purpose, direct
the certificate to be discharged or varied at
any time after the same has become binding
on the parties.”
The certificate of the Master was filed on is4
March, 1949. The plaintiff intended to apply to
have the certificate varied or discharged, but failed
to do so within the prescribed period o f 8 days.
On February 5th, the plaintiff had changed his
solicitors and notice o f change was filed on February
7th, but there was delay in forwarding the papers
to the new solicitors who were not in possession
of them until February 24th. On February 22nd,
a substantial bill of costs was sent by the original
solicitors to the new solicitors, which required
examination, and at that particular time the new
solicitors’ managing clerk, who dealt with the
matter, was away from the office owing to illness.
Consequently, the summons asking for an extension
of time to apply for the discharge and variation
of the certificate filed on March 1st, was not issued
until March 29th. It was heard on April 12th and
was dismissed by the Master on the ground that
there were no special circumstances warranting
an extension. o f time. The plaintiff then appealed
to the court under R.S.C. Order 55, Rule 71. In
his judgment dismissing the application, Harman J.
said that the sole question was whether there were
any special circumstances which would justify
him in varying the Master’s certificate. The special
circumstances relied upon namely, the change of
solicitors and the illness o f the managing clerk,
were not sufficient and accordingly, the application
was dismissed with costs.
I
n
Rippington
v
.
Hicks & Son (Oxford) Ltd.,
and Anor (1949 All E .R . 239), an information
preferred by the appellant against the respondent
was dismissed. The appellant applied to the justice
to state a case but, owing to delay on the appellant’s
side due to the illness o f a solicitor in the office
of the Treasury Solicitor who was acting for the
appellant, the case was not stated until almost
ten months had expired. A preliminary objection
was raised by the respondents on the ground that
the case was not stated within the period of three
calendar months prescribed by the relevant rules.
The draft case had not been sent by the Treasury
Solicitor to the respondent until May 1st, the delay
being due to' (he fact that the official in the office
o f the Treasury Solicitor who was in charge of
the matter, was ill.
Correspondence followed
between the solicitors and the draft case was under
consideration by counsel. By the time the case
had finally been settled, the three months period
had elapsed. Lord Goddard, C .J., dealing with
the preliminary objection, stated that if the appellant
required a case stated, he should abide by the rules
o f court. These rules were meant to be observed,
and if the time limit could not be observed for some
reason, then it was' the duty o f the appellant to
come before the court and ask for an extension
o f time. No such application had been made in
tins case and he was o f opinion that the objection
should be upheld and the appeal dismissed.
I
n
the. Irish Law TimesandSolicitors’ Journal
of 8th May,
1948, there is a note o f a reference by Mr. Justice
Shannon, President o f the Circuit Court, to a
misunderstanding which he stated exists in regard
to the acceptance o f rent after service o f a notice
to quit. “ People sometimes caused a great deal
o f inconvenience to themselves and to others,”
said Judge Shannon, “ by refusing to accept rent
after serving; a notice to quit.” Many people, said
the learned Judge, thought that the acceptance of
rent in such cases was equivalent to a waiving of
the notice. He was sure that solicitors would advise
their clients as to cases in which rent could
be accepted without prejudice, and he hoped that
this would be done in future. It was very unfair
to a man who was willing to pay his rent regularly
to have a year’s arrears accumulating against him.
In the recent case o f Clarke
v.
Grant and Anor,
reported in the Solicitors’ Journal (England),
April 1 6th, 1949, at page 252 the same question
arose. The defendants were yearly tenants of a
house belonging to the plaintiff. After the tenants
had received from the landlord a valid notice to
quit, the tenants paid to the landlord’s agent a
sum o f money equivalent to one month’s rent.
The agent received that sum in the mistaken belief
that it was for rent in arrear for the previous month.
The Deputy County Court Judge held that, as there
was no other evidence of any agreement between
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