The Gazette 1949-1952

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 29

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