but judgment and execution, and placed in the hands of the party himself; and it can only be reconciled with the latter enactment in reference to decrees for sums payable by instalments within twelve months. [Pen refather, B.-There is no such limit in the Act.] put it in force, were to make an entry of the date of the entry so made, as it might hereafter be held, if such a practice were adopted, that the "date" mentioned in the statute referred to the date of the issuing of the decree. payment was to be made according to the arrange. ment contemplated by the order. The application in the present case is consistent with that practice, that the parties need not be called upon to renew their decrees, as in that case the scire facias need not be issued until a year after default made. UnH. Hamilton, Q.C., was not called upon to reply. questionably, the statute says that the decree is to PIGOT, C. B.-The words of the 112th section be in force from one year from its "date;" but we are sufficiently large to support the present appli- are all aware how that expression has been construed cation, for it provides that " upon default made in in the case of instruments executed under powers, such cases, by non-payment of any of the instal- and that it is understood to mean the same thing as ments, upon affidavit made of that default before the act of execution of the particular instrument. the Clerk of the Peace, the decree is to issue for There are several authorities in support of this conthe whole, or such balance as shall appear to be struction. Osbourn v. Ryder, (Cro. Jac. 135); Hatdue at foot of it." It has been contended by the ter v. Ashe, (3 Serv. 438; s. c., 1 Lord Raym. 84.) other side, that section 139 requires the renewal of In the present case we must apply a similar rule, the decree after a year has expired from its date in and hold that the decree has been acted upon in all cases; and therefore that the execution in the sufficient time, and that the language of the Act present case is invalid. The words of the latter must be understood as referring to the issuing of section are as follows: "That every decree shall the decree, and not to the day upon which it was be in full force and effect for one year from the pronounced. There is one thing that I wish to date of the same, and that it may be renewed from observe, namely, that it would be more convenient time to time';" but we must consider both these if the Clerk of the Peace, when entering upon a sections together, and give them a reasonable in- decree of this nature the amount due, for the purterpretation, and such as will effectuate the provi-pose of enabling the person holding the decree to sions of the statute. In the present case, at the making of the decree, it was contemplated that payment of the entire sum should be postponed for twenty months; suppose that payment had been regularly made for thirteen months, and that then the defendant made default, how is the other party to proceed? More than one year has passed, and the plaintiff has not got the decree in his possession, it being in the hands of the Clerk of the Peace; how then is he to comply with the sections of the Act which relates to renewals, requiring the particulars of the decree to be stated, and that the decree itself should be produced in open court in order to ascertain when it was pronounced, as appears from the form of affidavit given in the schedule, showing that the decree itself must be in the possession of the party at the time of his making the necessary affidavit for renewal? In the present case the decree has never issued, and has never come to the hands of the plaintiff; and how can he produce it in court, or make an affidavit stating its contents, when he has never seen it? Such a practice would at the least lead to much inconvenience. If the position adopted by the defendant's counsel were tenable, a party in such a case might pay regularly for twelve months, and then he might make default, and hold the plaintiff at bay until the next sessions, which might not occur for three months afterwards. We could not give to the statute a construction that would lead to such inconvenience. This case has been argued upon the construction of the Statute of Westminster, an Act quite as stringent in its provisions as that now before us, and it has been held that in case of a writ of annuity or recognizance, when a scire fucias should regularly issue immediately, yet that if it has been ordered that the amount of the debt recovered or acknowledged should be payable by instalments, execution need not be taken out at once, but from the time that PENNEFATHER, B.-I fully concur in the judgment of the Chief Baron, and wish also to express my assent to his last observation. The addition of the date of the issuing of the decree would, besides the benefit alluded to by the Chief Baron, have this useful effect in many cases-that, where the payment of the last instalment was within a year of the date of the decree, it may so appear, and thus prevent such a controversy as has been raised in the present instance. GREENE, B. concurred. Rule absolute. BATTLEY V. DUNNE.-June 12. Practice-Changing the venue-Common affidavit. In an action that had been commenced before the passing of 16 & 17 Vic. c. 113, the court granted a conditional order to change the venue upon the common affidavit. Carson applied for leave to change the venue upon the common affidavit. This is an action for use and occupation, and the writ of summons issued before the passing of the Common Law Procedure Act. PENNEFATHER, B.-Take a conditional order. A cause petition under the 15th section of the Chancery Regulation Act was filed to raise the amount of a charge on lands; the order of reference was made, and a receiver appointed. No party but the petitioner proved a charge in the matter; the respondent paid off the petitioner's charge and costs, and now moved to have a consent to dismiss the petition and discharge the receiver made a rule of court. An order was made to stay the proceedings on the petition, and to make the consent a rule of court. A CAUSE PETITION had been filed in this case under the Chancery Regulation Act, to raise the amount of a charge on certain lands. A reference was made to the Master and a receiver appointed, and the respondent had subsequently paid off the entire of the petitioner's demand, together with the costs of the receiver's solicitor, and no other party proved any charge. A consent was entered into between the petitioner and respondent, that the receiver should pass his final account and be discharged, and his recognizance vacated; that the Master, on passing the account, should allow the receiver his costs of passing same and vacating the recognizance, and that the balance on foot of the account, if any, should be paid to the receiver or respondent, to whomsoever due, and that the petition should be dismissed, and it was agreed that the consent might be made a rule of court. John F. Walker now moved that the consent be made a rule of court, and that the petition be dismissed. The only difficulty that could arise was as to dismissing a petition after the reference had been made to the Master. Under the 26th General Order of 1851, the respondent, in an administration suit, may apply to stay the proceedings, provided no other creditor has filed a charge in the Master's office, and under the 22nd section of the Act, where the court has made an order, referring an administration petition to the Master, or where any decree or order has been made by the court, referring such matter of administration to the Master, no other creditor, while such order remains in force, can proceed with any action against the executor or administrator; but this only refers to administration suits. In Stokes v. Coltsman and others, (1 Ir. Ch. R. 44,) the court refused to dismiss a petition on payment of the petitioner's debt and costs, holding, that the order of reference to the Master was equivalent to a decree to account in a plenary suit, and that the other creditors had an interest in the proceedings; but that was also a suit for administration. No party, except the respondent, had appeared here, or proved any charge, under the decree. If there is any difficulty as to dismissing the petition, an order can be made to stay the proceed. ings, on the authority of Egg v. Devy. We have come to the Rolls, and not to the Master, because we seek also to have the receiver discharged-Egg v. Devy, (11 Beav. 221); Lashley v. Hogg, (11 Ves. 602); Mayhew v. Brittingham, (8 Law Jour., N. S., 89.) The following order was made, staying the proceedings: Whereas Mr. Walker, of counsel with the respondent, this day moved the court that the consent entered into in the matter, bearing date the 25th April, 1854, might be received and made a rule of this court, whereupon and on reading said consent, as also the Rolls' certifi ficate, and Mr. Richard A Walker, solicitor for the said respondent, stating to the court that no party, except the petitioner, has filed or proved a charge under the Lord Chancellor's order in this matter, it is ordered by the Right Hon. the Master of the Rolls that said consent be and the same is hereby received and made the rule of this court; and accordingly it is further ordered, inasmuch as the respondent has paid the demand of the petitioner for principal, interest and costs, and also the costs of the receiver's solicitor, that J. Andrews, the receiver in this matter, do, within one week after service on him of the order, lodge his final account in this matter, and proceed to pass same without delay; and it is further ordered that said J. Andrews be discharged as such receiver; and, upon production to the Clerk of the Recognizances of the court of the receipt for the balance (if any) by the said respondent, it is further ordered that the recognizance entered into in the matter by the said J. Andrews and his sureties, and enrolled on the 26th of July, 1853, be vacated, and a vacate entered on the enrollment thereof by said Clerk of Recognizances; and in case there shall be any sun due to the said receiver on foot of said account, having regard to the costs of said account and vacating said recognizance, it is further ordered that, upon said account being passed and filed, and the balance, if any, paid to said respondent or receiver, as the case may be, that the proceedings in the matter may be stayed; and it is further ordered that J. J. Murphy, Esq., the Master in the matter, on the passing of said account, do allow said receiver a sum sufficient for the costs of passing said account and of vacating said recognizance, and it is further ordered that said Master do direct the balance of said account, if any, to be paid to said respondent. set down for hearing. The respondent's affidavit stated that from the intricacy of the accounts which required investigation, he was unable to have his answering affidavit ready in time. T. Purcell opposed, on the grounds that no case had been made accounting for the delay, and the respondent's affidavit contained no statement that he was advised and believed that it was necessary to file the proposed affidavit; the question was a mere one of account, and any case which the respondent required to set up could be made in the office. The cause had been set down and was on the point of being heard, being in the list, and the Chancellor within about twelve of it, and if the affidavits were now permitted to be filed the consequence would be, that the petitioner could not have it heard this Term, which would be a hardship on him when he was in no default.-Guiness v. Guiness, (6 Ir. Jur. 85.) MASTER OF THE ROLLS.-I think it very incorrect for parties to come at the last moment for liberty to do that which it was their duty to have done at the proper period, and which there was no reason for their not having done; but I have no discretion in the matter, as the Lord Chancellor has decided that it is a matter of course for a party to obtain liberty to file affidavits at any time before the cause is heard. I disapprove of this practice, but sitting here I have no power to alter it. I do not act upon my own opinion; but when I understand it to be the opinion of the Lord Chancellor that affidavits should not be shut out, I am bound to adopt that course, and make the rule general, admitting affidavits to be filed whenever applied for. I think such a rule inconvenient, and would be glad to alter it, but cannot do so. [Purcel applied that the liberty should be given only on payment of costs.] I would give the costs of the motion against the party in default, and therefore having the occasion to apply for the liberty, if I could; but when a party has a right to apply as of course, there is no reason why they should pay the costs; let them be costs in the cause. COURT OF EXCHEQUER. that he should be struck off the roll of attorneys, the court directed their former order to be rescinded, there having been a suppression of facts connected with the proceedings, although it did not appear that these facts were withheld from an intention to deceive the court. AN application had been made upon the 25th of last November, for the admission of Mr. McNally, who was then a barrister, to the profession of atmade an order to that effect. [See 6 Ir. Jur. 65.] torney under peculiar circumstances, and the court Mr. M'Nally removed from the roll of attorneys, The present motion was for the purpose of having obtained through misrepresentations and suppresupon the ground that the former order had been sion of facts from the court. dence given by Mrs. M'Nally, (widow of the deIt appears from evifendant's brother) at the trial of an action brought Railway Company, to recover compensation for by her against the Great Southern and Western the loss of her husband, an attorney, and as suc cessor to whom the above order had been made for the admission of Mr. M.Nally as an attorney, that application made to the court in that behalf, a deed upon the 11th of November, and previous to the of assignment of her interest in the costs due to the deceased at the time of his death, and the good will of the business in which her late husband had been engaged as an attorney, had been executed by Mrs. McNally to the applicant for the sum of M'Nally that the deed was made with her full con£1175. It appeared by the affidavit of Mrs. ment should subsist; and the reason assigned by currence, and that she was anxious that the agree. the applicant for not having stated this fact upon the former application was, that it might not prejudice Mrs. M'Nally's case in the trial of the action. The present application was made on behalf of the Law Society. in support of the application. The order of NoThe Attorney-general, (with him Martley, Q. C.) vember 25, was obtained through misrepresentation and suppression of the truth. It was not alleged by affidavit upon that occasion that the order sought would be for the benefit of the widow of the deceased; but the applicant's counsel was in [Reported by BECher L. Fleming, Esq. Barrister-at-Law.structed to state that it was chiefly for the purpose EASTER TERM, 1854. IN RE M'NALLY.-April 25, May 3. Admission of Barrister to the profession of Attorney-Suppression of facts. A barrister, (whose brother, an attorney, had been killed by a railway accident,) had been admitted to the profession of attorney without serving the usual apprenticeship. At the time that the order for his admission was made, he expressed through his counsel, his intention to carry on the suits then pending in his brother's office for the benefit of the widow; but it subsequently appeared that he had previously to the above application, become a party to a deed whereby the widow of the deceased had, for a consideration, conveyed to him not only her interest in the suits then pending in the office of her deceased husband, but also the good will of the business. Upon an application of collecting the costs due to her as representative of her deceased husband, and bringing to an issue the existing suits, that Mr. M'Nally sought admission as an attorney, and the order made on that occasion shows that the court was under that im. pression. This was a misrepresentation, for at that time the widow had no interest in those assets. It is admitted that the contract may be a beneficial one for her; but it is submitted that such a consideration should not be allowed to prevail against law and general principles. In Symes's case, (7 Ir. Eq. Rep. 339,) the chief grounds upon which the court acted was the fact, that the applicant forfeited his former profession for the benefit of the family of the deceased, a principle that weighed with this court upon the former application, but which must now be regarded as no longer existing. [Pennefather, B.-In this case the undertaking of the applicant was to carry on the existing suits for the widow's benefit; is there any material distinction between his doing that, and paying her down a sum of money out of his own pocket for her interest in those suits? Nevertheless, even supposing it so, we cannot overlook the suppression of a material fact. Greene, B.-If this deed had been produced at the former motion the court would have had an opportunity of judging of the propriety of the arrangement.] [They cited Candler v. Candler, (Jacob. 225.)] Ball, Q. C., (with him Macdonagh, Q. C.,) contra. In Symes's case the chief consideration was the interest of the clients, and the competency of the applicant; and as regards the benefit of the widow, she has clearly gained an advantage in receiving a solid sum of money, instead of waiting for the recovery of these costs which might be uncertain. The order made on the former application recites the statement made on behalf of the applicant by his counsel in open court, that he intended to carry on the subsisting business for the benefit of the widow; and it is submitted that he has done so substantially. [Pigot, C. B.—It is not so much the interests of the widow that are to be considered in this case, as the duties not only of persons engaged in, but also of those entering upon the profession of attorney. Pennefather, B.-The order we were induced to make was of a very exceptional character, and for that reason we should have been fully informed of all the facts of the case.] If this application be granted it will be ruinous to Mr. M'Nally, for he has forfeited his former profession. This is one of those cases that come within the rule fieri quod non debet factum valet. of the persons who might be injured by our decision. In disposing of this matter, we must regard the peculiar circumstances of this individual case, and guard against the possibility that our present decision should be hereafter drawn into a precedent. Upon the former application made on behalf of Mr. M'Nally, for the purpose of having him admitted as an attorney without serving the regular period of apprenticeship, when pronouncing our decision in favour of that application, I recollect that every member of the court stated that this was to be regarded as a most exceptional case, and depending upon circumstances peculiar to itself. Certain rules have been laid down by the Legislature and the judges, and the practice followed in conformity to those rules has been most strict with regard to the admission of persons to the profession of attorneys. One of the objects of these rules is, that as a preliminary to the admission of any one to this profession, it must appear that due regard has been paid to his education, in order that the interests of his future clients may be properly protected. This is the chief object of those rules regulating the admission of attorneys; but another is, to sustain the station and respectability of that profession, in the character and competency of the members of which such a high trust is reposed, and upon which such large interests depend. In many instances where applications have been made to us for the purpose of dispensing with the strict requirements of some of these rules, we have, although it caused great inconvenience to the parties, refused to allow these rules to be relaxed until the proper preliminaries had been complied Martley, Q. C., in reply.—The public in general with; and this was in cases where the party himare highly interested in the strict observance of the self has been at no default, but where some provirules for the admission of gentlemen to the pro- sions of the Legislature have not been strictly fession of attorney; these rules are the safe- followed, or some of the rules as to stamp duty, guard of society, and they cannot be relaxed or matters of that nature, had been neglected. Notwithout the authority of the court: it therefore is withstanding these rules, the courts have accelernot necessary to consider what would have been ated the admission of persons to the profession of the decision of the court upon the former applica- attorneys in certain cases, when satisfied that the tion, if the facts had been before them; it is suffi interest of suitors will be fully protected, and in cient to show that these facts were not before them. such cases we have been sometimes considerThe bargain that has been made is one that any ably influenced, not altogether, but in part, by the barrister, in his position, might have made without circumstances of a deceased attorney; and in confear of loss, even though perfectly unconnected sidering such circumstances we have not only rewith the deceased; and Mr. M⭑Nally can easily re-garded the position of his family, but also the inalize these profits by employing an attorney. The terests of his clients, and we have acted in referagreement was made on the 11th of November, ence to such considerations. In the case now be and on the following day an affidavit was filed sug-fore us several circumstances were presented to us guesting a very different state of circumstances. It does not make the case at all better to state that the existence of this deed was suppressed for the purpose of interfering with the administration of justice. PIGOT, C. B.-The present case is certainly a very painful one, whether we consider the position of Mr. McNally, or the consequences that may result to the widow of his deceased brother; but it is one of those matters involving not only the interest of the public at large, but more particularly that of the suitors of these courts, and the profession of attorneys themselves; and therefore we must not yield to any consideration to which we might otherwise be induced to give way in favour in such a manner as to satisfy us that the party seeking admission had received an adequate education; for it appears that he had entered the profession of the law as a barrister, and had engaged in a course of business in the office of his brother, who was an attorney, and that he had in other ways qualified himself, so that the court was satisfied that the interests of those suitors who had intrusted the r affairs to the management of his deceased brother, would be best promoted by his admission to his brother's position. We were also influenced by the consideration that his brother had been removed from the charge of his family by the hand of Providence, and under such peculiar circumstances as he could never have anticipated; and taking these before he entered into this agreement, and had subsequently contracted with the widow in the manner he had done, I am not prepared to say that the court would have regarded it as a breach of his undertaking. I am not desirous of entering into the consideration of that subject; but what I say is simply this, that Mr. McNally should have stated all the details of this transaction upon the former application, and that he cannot now be permitted to derive any benefit from an imperfect disclosure of facts. As to the injury that Mr. McNally may suffer if the application is granted, I do not think that we are at liberty to speculate upon that question; but I fully concur in an observation that was made in the course of the argument by my brother Pennefather, that it is not probable that any great injury can result to Mr. McNally from our undoing what has been already done, which would not have equally resulted if we had originally refused the application. In the first place he is not now in a worse position than he was at the time of the ap plication. I do not say but that he may now be more favourably circumstanced; for if he still pur poses to become an attorney, I will not say but that he may hereafter be allowed for that purpose the time that has elapsed since he first became apprenticed; therefore, although he is to a certain extent prejudiced by this order, he is not so much more injured than if we had refused his applica tion altogether. We are desirous of withholding the expression of any opinion that might be calcu lated to prejudice Mr. M Nally hereafter in his profession. I fully acquit him of any intention of deceiving the court, and of all but a very impru dent suppression of what should have been fully disclosed. Our present order will not be to strike Mr. McNally's name off the roll of attorneys as a punishment; but it will be this, that the former order be set aside in consequence of the circum. stances I have referred to—in fact to rescind our former order-and of course as a consequence of this, his name must be removed from the roll; but that may be done, reserving to him a power of making an application hereafter for the purpose of being admitted again as an attorney when he has served his apprenticeship. I think that he acted with some impropriety in suppressing the fact that he had entered into this agreement; all I wish to convey is, that I do not believe that he did so for the purpose of deceiving the court. several matters into consideration, we decided that | If he had obtained the order which was then made under these most exceptional circumstances we would grant the application. We then stated that it was a case of a most exceptional character; that each case of that nature should stand upon its own basis; and that it required the most grave consideration of the court before they could be induced to relax the strictness of the ordinary rule. Under all such questions it is absolutely essential that the entire facts should be laid before the court, to enable them to determine, and others to aid them in arriving at their decision. In cases where the propriety of relaxing these rules has become a matter of debate, the Law Society has been in the habit of interposing, to the great satisfaction of the court, for the purpose of having the matter more fully discussed; and, therefore, as well for the consideration of that body, as for that of the court, it would have been proper that all the circumstances connected with the case should have been fully stated. This is an application to the court as a Court of Justice; but the court cannot avoid feeling that such applications involve something more than that. We are not solely and altogether acting in the capacity of judges in a matter of this nature; we may be regarded to some extent as members of Que family, comprising the two professions; and for that reason I regard applications of this nature made to us as holding such a position; and therefore more peculiarly requiring that a most complete disclosure of everything connected with the matter at issue should be made. If it be necessary that in certain contracts all the facts of the case should be made known to the party contracting, and that the suppression of any one circumstance could vitiate the entire, how much more in the present case should there be a complete bona fides. Unfortunately in the present case Mr. McNally has chosen, for what purpose I do not say, not to present to the court a full disclosure of all the facts connected with his application. I do not think that we should now speculate as to what might have been the result of the former application if a full disclosure of the facts which have since come to light had been made upon that occasion. There can be no doubt but that such a disclosure should have been made, and I think we should be extending a most dangerous precedent if we should sanction a practice of making applications of this nature, founded upon a partial disclosure of facts, in cases where a complete statement of everything connected with the case should have been made. I do not PENNEFATHER, B.-It was an intended suppresdesire to enter into the particular circumstances sion, not a mere mistake; although I do not conconnected with the suppression of these facts. Iceive that it was done with the object of misleading do not come to the conclusion that the object of the court. Mr. McNally in suppressing this matter, was to mislead the court; I would acquit him of such an imputation, if it had been cast upon him, which however is not the case. I am not satisfied but that Mr. M'Nally did conceive, when he entered into this arrangement, that he was acting for the benefit of the widow and family of his deceased brother; and when he alleged his intention of carrying on the business for her benefit, he may not have been stating what was inconsistent with his conducting the business subject to the agreement. GREENE, B., concurred. Rule accordingly. TRINITY TERM, 1854. HURLY V. LAWLOR.-June 12, 13. The plaintiff had been arrested in the County of |