of the 28th October, 1887, served in the name and on behalf of Moire an originating notice to fix a fair rent. He had no direct authority from Moire to do so. Moire was not examined before us as to whether he adopted or disavowed the act of the receiver, but he is represented by Mr. Dunn, the solicitor in the present proceedings.

The landlord, Mr. Blacker, contended on the hearing before the Sub-Commission-first, that Moire had not instituted the proceedings or authorised Mr. Goff, the receiver, to do so on his behalf; and, second, that Moire was not a tenant in bona fide occupation of his holding within the meaning of the 1st section of the Act of 1887.

We may dismiss the first question with the observation that, in our opinion, the learned Judge of the Land Court had unquestionable authority to direct the receiver to use the name of Moire, the tenant, in any proceedings which appeared to the learned judge proper or necessary to take in protecting the estate or for its benefit.

The second question is the important one. How far does the fact that a receiver, appointed over the estate of a tenant holding under lease or from year to year, goes into occupation of the holding under order of the Court prevent the tenant from being a tenant in "bona fide occupation" in the one case, or from being a "person occupying land" in the other, so as to dis entitle him to fix a fair rent while the receiver's occupation continues?

The question would not arise from the mere appointment of a receiver the occupation of the tenant is not disturbed in such case-but if the tenant is displaced from his occupation by the receiver, has the tenant the right to fix a rent during such occupation? It is necessary in the first place to have a distinct idea as to the position (in relation to the parties to the suit) occupied by a receiver appointed by the Court. Á receiver has nothing whatever to say to the parties, or any of them; he is appointed by the Court, accounts with the Court, and is responsible to the Court. He is the officer of the Court. As the Court acts for all parties, so he, as the officer of the Court, acts for all parties. He is not the agent of any of the parties, and cannot be said to represent them. If authority is required for this, I may refer to Lord Eldon's statement in Davis v. Duke of Marlborough, 2 Swan 118. A receiver takes no estate in the lands over which he is appointed. There is no alteration in the possession of the lands as regards the person entitled to the possession. The receiver's possession is the possession of the person or persons rightly and beneficially entitled_ that is, his appointment leaves the possession and title of the parties according to their rights, the receiver's function being limited to managing and securing the property for the benefit of those who are or may be ultimately entitled.

Now, as regards the necessity of the tenant who comes into Court to fix a rent being in occupation as contradistinguished from possession. Under the definition of the 57th section the tenant must be a person "occupying" land, not merely "possessing" land; and under the 1st section of the Act of 1887 the lessee must be in "bona fide" occupation. There is a marked distinc tion between" possession" and "occupation." I may possess land, all of which may be occupied by tenants.

In Rex v. Inhabitants of Ditcheat, 9 B. & C. 176, Littledale, J., pointed out that there was a material difference between a holding and an occupation-that a person might hold although he did not occupy. In

[L. C.

Furlong's Landlord & Tenant, p. 40, it is stated, "Actual possession' is equivalent to occupation, and means either a corporeal possession by actual residence on the premises, or the occupation of the whole or some part of a farm by the cattle, crops, or servants of the owner."

In

In the case of Farrelly v. Doughty, 15 Ir. L. T. Rep. 100, it was held by this Court that where a mortgagee entered into occupation the mortgagor tenant could not fix a fair rent against the landlord, not on the ground that the mortgagee had the legal estate, but because the applicant had been ousted from the occupation. It is unnecessary to say a man may occupy by his steward or manager or agent, provided the fruits of the management are enjoyed by him. Occupation may be actual or constructive, and, in the case of a sub-letting with consent, may be imputed-but it must be bona fide, that is, really in good faith: MCarthy v. Swanton, 14 L. R. I. 375, 18 Ir. L. T. Rep. 85. Imputed occupation required the proviso which follows the definition in the 57th section of the Act of 1881. the present case Moire was deprived of the occupation of the holding by order of the Court. That is, under the order and the power of the Court to enforce it by attachment Moire was expelled from the use, enjoyment, and occupation of the holding No doubt the order operated only in personam and not in rem, but that does not alter the fact. The receiver occupied down to 1889. His occupation was not that of a servant, agent, or manager of Moire, but as an officer of the Court acting under its authority. How then can Moire be said to be "occupying" his holding at the date of the originating notice? He was put out of occupation under the pressure of the Land Court order. I wish it to be plainly understood that I do not decide that the appointment of a receiver over a tenant's estate, per se prevents the tenant coming into Court and fixing the rent. The appointment does not itself affect either the tenant's possession or his occupation. It is only in cases where the receiver goes into occupation by order of the Court and ousts the tenant from his occupation that the right of the tenant to have a rent fixed is suspended. While the occupation of the receiver continues, and until the tenant regains occupation by the withdrawal of the receiver, he cannot have a rent fixed.

The Receiver cannot fix a rent, for though in occupation he is not a tenant. The Tenant cannot fix a rent, for though tenant he is not in occupation.

I am of opinion that the order of Mr. Kane was right in dismissing the notice in the present case.

Mr. Commissioner FITZGERALD. The principal question for decision in this case is whether a lessee is to be deemed to be bona fide in occupation of his holding within the meaning of the Land Law (Ireland) Act, 1887, section 1, notwithstanding that a receiver has been appointed over the holding by the Land Judge at the instance of an equitable mortgagee of the lessee's interest in the holding, and that the lessee has been ordered by the Court to give up possession to the receiver of the holding (except the house and offices), and that the receiver, in pursuance of such order, has taken possession of the holding (save as aforesaid) from the lessee.

The use of the word "bona fide" in the section referred to does not affect this case-the word is a wellknown legal term. It means in good faith really, as distinguished from colourably or fraudulently. It is

See 24 Ir. L. T. & S. J. 295.—[E. N. B., Ed.]

CIR. C.]

said it means "actual." It is, however, not immaterial to observe, in addition, that in section 22 the expression "actual occupation" occurs. This shows that the legislature drew a distinction between occupation generally (or, in other words, as qualified by the clause in sec. 57) and "actual_occupation (Palles, C.B., McCarthy v. Swanton, 14 L. R. I. 365, 18 Ir. L. T. Rep. 85). Also, in the same case, FitzGibbon, L.J., intimates that bona fide occupation cannot be restricted to "personal occupation." The question must, therefore, depend upon what is in fact the nature of the possession or Occupation taken by a receiver. A receiver is an officer of the Court, and the possession of the Court by its receiver is the possession of all the parties to the suit according to their titles, the receiver being appointed on behalf of all the parties to the suit according to their titles: Bertrand v. Davies, 31 Beav. 436. effect of the appointment of a receiver is not to alter the rights of the parties: Groom v. Blake, 6 I. C. L. R. 411, 8 I. C. L. R. 433. In Butler's Estate, 13 I. Ch. R. 453, the general principle is laid down "that the possession of a receiver is that of all the parties to the suit according to their titles; as between owners and incumbrancers it is for some purposes the possession of the incumbrancers who have obtained or extended the receiver; as between the owner whose possession has been displaced and a third party it is the possession of the former. The receiver is, in fact, his agent, all the rents are applied to his use, either by paying his debts or paramount charges or by being handed over to him "*

The

The appointment of, and the taking possession by, the receiver creates no estate in the holding against the lessee. If the Court through the receiver created a tenancy in the holding, then the occupation of the holding by the lessee would cease—but this has not occurred. If the lessee executed a deed appointing an agent to occupy and work the holding as such and to apply the profits for the lessee's use by paying the interest on the mortgage and any surplus over to him, the lessee, would it not still be held that the occupation by such agent was the occupation by the lessee within the meaning of the section, and is not the appointment of the receiver by the Court, followed by his taking possession, substantially the same; the occupation of the estate is not changed, but merely a mode of management is directed by the Court through its officer as a common agent for all parties. On these grounds, in my opinion, I think the lessee must be deemed to be in occupation of the holding within the meaning of the section, notwithstanding that the receiver has actually taken possession of it. On the other question, as to the authority of the receiver by direction of the Court to sign the originating notice for the tenant, I concur in the judgment of Mr. Justice Litton.

Order of Sub-Commission affirmed.

ASSIZES.

Reported by WILLIAM ORR, Barrister-at-Law.

(Before O'BRIen, J.)

M'CARTAN v. MURRAY.

July 15, 18, 1889.-Ejectment for non-payment of rent-Abatement-Payment-Deduction from amount of

See, also, paper on "Chancery Lettings," 8 Ir. L. T. & S. J. 279.—LE. N. B., Ed.]

-

[CIR. C.

judicial rent Excess paid above amount of judicial rent-50 & 51 Vic., c. 33, s. 5.

A tenant who made application before the gale day next following the passing of the Land Law Act, 1887, to have a judicial rent fixed on his holding, may not deduct from the amount of judicial rent payable by him the amount of an abatement allowed out of that gale by the landlord, such allowance not being a payment within the meaning of section 5.

Appeal by the defendant, the tenant of a holding under the plaintiff, from a decision of Thomas Lefroy, Q.C., County Court Judge, and Chairman of Down, in a civil bill decree of ejectment for non-payment of The facts are set out in the judgment.

rent.

J. H. M. Campbell, for the plaintiff.
Keightley, for the defendant.

O'BRIEN, J.-A tenant who made an application to fix a fair rent before the September gale of 1887 accrued, and afterwards, in pursuance of a letter of the landlord, was allowed an abatement out of that gale and took a receipt as for the whole amount due with the abatement stated on the face of it, and, subsequently to the payment made by him, had his rent fixed at a lower rate, upon being sued for rent that subsequently accrued, claims to be allowed the amount of the abatement, as of a payment made by him under the latter branch of section 5 of the statute of 1887. The landlord, on the other hand, offers to take the account, either adhering to the abatement made for the gale of 18-7 and allowing the payment to stand good as a satisfaction of that gale or to include that gale at the reduced rate as if no allowance out of it had been made. The part referred to of section 5 says, that the tenant, where the judicial rent is fixed at a lower rate than that previously payable, may deduct from the amount of the judicial rent "such sum as he may have paid" over and above the amount of the judicial rent in respect of the previous gale. The question is, has he "paid" the amount of the allowance? In one sense he has paid it, for the landlord has received part as for the whole, and the landlord has given him a receipt by which, according to all modern law at all events, differing perhaps from the strict doctrine once prevailing that payment of a part of a debt could not be a payment of the whole, he stands acquitted from all further liability. But in another sense certainly a gift or release is not a payment, and vacancy is not the same as substance. In order to see which of these two senses ought to prevail we must recur to the object of the statute. That object was to put the person who had used due diligence on bis part, in making his application at once, in the same position as if the order of the Court followed instantaneously, so as not to be prejudiced, by the delay of the hearing, from reaping the benefit of a change which the law considered just. That is clear from the earlier part of the section, which makes the new rent generally to count as against the gale subsequently accruing. The second part of the 5th section is a qualification of that rule by putting the application in the place of the order as the terminus from which the rent is to be com puted. But that object does not extend further than where the difference of position exists by reason of the tenant having been called upon to pay and having made an intervening payment. The landlord says, made you a present of part of the rent, so as to require you not to pay it, but not so as to have it taked

Co. Cr.]

as a payment by you against me." On the other hand, the tenant says it was taken as rent paid, and the statute comes and attaches on that. But the reason shows that it is on the actual fact it attaches and not on the discharge of the tenant. Suppose the abatement to be less than the reduction by the Court-than "the sum that the tenant has paid over and above the judicial rent' within the Act-then the right to deduct must be applied in two different senses-namely, to the part that is fixed and the part that is allowed. Take it that the rent is raised, in which case the landlord has no corresponding right, the abated payment stands as a final acquittance, and the result is that what is not a defeasible satisfaction in one event is defeasible in the other. The payment, less the allowance, having been made before the order, there would perhaps be reason to contend that the tenant when he made it and received the allowance compounded finally for any contingent right, that he sold his chance of the reduction out and out for the abatement. That question, however, would only be material where the allowance was less than the reduction. But, without pressing the case to that length, I am clear in the present instance the tenant can only have credit for actual payment, and that the dishonest use sought to be made of the words of the statute is not maintainable in law.

Appeal dismissed.

Solicitor for the plaintiff: Alexander Gartlan. Solicitor for the defendant: H. C. Weir.

COUNTY COURT.

Reported by JAMES J. SHEEHAN, Barrister-at-Law.
(Before ROBERT FERGUSON, Q.C.)
SMITH BARRY and ()therS V. THE GUARDIANS OF
MILL-STREET Union.

1890.-Distress for poor's rate-Liability of subsequent occupier-Notice of action—-Limitation of action— 1 & 2 Vict., c. 56—6 & 7 Vict., c. 92-12 § 13 Vict, c. 104.-13 & 14 Vict., c. 82.

The goods of a person not primarily liable are not distrainable for arrears of poor's rate more than 2 years due.

This action was brought to recover £13 2s. 4d., for illegal distress for poor's rate under the following circumstances. In the year 1888 the plaintiffs, as trustees of the Cork Property Defence Union, entered into possession of a farm on which the poor's rate for the years 1884, 1885, 1886 and 1887, was due and unpaid. A demand for the arrears of rates having been made by the guardians on the plaintiffs, they tendered to the rate collector £10 17s., being the amount due for the rates made in 1886 and 1887, but refused to pay the rates made in 1884 and 1885. Thereupon on the 7th Sept., 1888, the collector levied a distress for the full amount of the arrears, £23 19s. 4d., which sum was paid by the plaintiffs to release the distress. They now sought to recover £13 2s. 4d., representing the amount paid on foot of the rates for 1884 and 1885, for which they contended they were not liable. The action was commenced on the 12th August, 1889. No notice of action had been served on the guardians.

H. D. Conner for plaintiffs, relied on the 19th section of the 12 & 13 Vic., c. 104, which enacts that "where any rate shall be made after the passing of this Act, it shall not be lawful to commence any proceeding for

[Co. CT.

the recovery thereof against any person not primarily liable to pay the same unless within a period of two years after the making of the rate." The plaintiffs not having gone into possession till 1888, could only be liable for rates made within two years previously, i.e., the rates for 1886 and 1887.

P. D. Fleming for defendants, submitted the plaintiffs should be non-suited as they had not served the notice of action required by the 113th section of the 1 & 2 Vic., c. 56, nor brought their action within the limit of 3 months therein prescribed. He further argued that by the principal Act (1 & 2 Vic., c. 56), the guardians had the power to levy the rate by distress off the goods of the person primarily liable, and that the 6th section of the 6 & 7 Vic., c. 92, rendered the goods of any person found on the lands liable to be distrained as if they were the goods of the person primarily liable. The 19th section of the 12 & 13 Vic., c. 104, limits the time within which the guardians may proceed to recover the arrears by way of personal action against anyone not primarily liable, but does not limit the powers of distress given them by the statutes referred to. Distress is not a proceeding "against any person," within the meaning of that section. Having regard to section 6 of the 6 & 7 Vic., c. 92, the guardians were justified in distraining for the four years' arrears, though they could not sue for more than two years' arrears owing to the provisions of sec. 19 of the 12 & 13 Vic., c. 104.

The JUDGE (after stating the facts). -Two questions were raised and argued by counsel 1st, whether the lands were still liable to distress for the rates of 1884 and 1885, although no personal action could be taken against the subsequent occupier. 2nd, If not, whether the guardians having acted in error, were not entitled to the usual notice of action, and to the benefit of the limitation of three months, mentioned in sec. 113 of the 1st & 2nd Vic., c. 56. Under the Irish Poor Law Act, 1 & 2 Vic. cap. 56, sec. 71, the rate is payable by the person in possession of the rated property at the time the rate is made, and in his default by the person subsequently in occupation. But the 12th and 13th Vic., cap. 104, sec. 19 (passed in 1849), enacts that "when the rate shall be made after the passing of this Act, it shall not be lawful to commence any proceeding for the recovery thereof against any person not primarily liable to pay the same, unless within a period of two years after the making of the rate." As to the mode in which the rate was to be recovered, the original Act, 1 & and 2 Vic, c. 56, sec. 73, gave the same remedies as those then in force for the recovery of county cess, one of which was by distress and sale of any goods and chattels of any person refusing to pay his proportion thereof, which might be found on the premises chargeable. This remedy for county cess was also extended to the goods of the party liable wherever found, and by 13 and 14 Vic., cap. 82, sec. 1, was extended to every case in which a distress for rent could be made, and to any goods found on the premises. This extension of the remedies for county cess did not, however, apply to poor rate, and it was also to be observed that county cess was a charge on the land, but poor rate was a charge on the occupier in respect of the land. I, therefore, hold that the plaintiffs in this case not being primarily liable for the rates made in 1884–5, and having tendered the rates due for 1886 and 1887, the distress made was illegal, and, so far as that point is concerned, the plaintiffs are entitled to a decree against the defendants for the loss they have sustained,

AP.]

unless the absence of notice of action and the three months' limitation debarred the plaintiffs from recovering.

This brings me to the consideration of the second point the absence of notice of action required by the 113th section of the 1st and 2nd Vic., c. 56. It was admitted that no notice was given; but it was contended on the part of the plaintiffs that this distress was not made under the authority of the Poor Law Acts, inasmuch as it was not made under a bona fide belief on the part of the guardians of such a state of facts as, if true, would justify the distress. For an authority on this point we should look to the cases of notice of action to sheriffs. In O'Dea v. Hickman, 20 L. R. Ir. 431, it was held that a sheriff is not entitled to notice of action, where the act complained of was illegal, unless he bona fide believed in such a state of facts as, if it existed, would justify the act complained of. The judgment of the Chief Baron leaves no doubt on the point. He said "This must not be a general belief involving matters of law only, or a mixed matter of law and fact, but a belief in such a state of facts as, if existing, would justify the act complained of." Now in the present case the act complained of was in my view illegal, and to entitle the guardians to notice of action they should have given the directions, which it appeared they distinctly did give, to their collector under the belief that the plaintiff was in occupation of the farm from the year 1886, so as to make him liable for the rates made in the years '84 and '85. It is quite clear from Mr. Jeremiah Hegarty's evidence that they believed no such thing, and that he had previously explained to them not only the facts, but the law of the case. I hold, therefore, that no notice was necessary, and that the action lay, although brought more than three months after the date of the distress. As to the first point I understand that a similar question arose in Limerick before Mr. Justice Holmes at March Assizes, 1888, in an action for trespass against the Limerick Guardians for a distress made for poor rate under circumstances similar to those in the present case, and that he gave a decree for the amount levied. I, therefore, give a decree for £13 2s. 4d., being the amount of the rate for which plaintiffs were not liable. Solictor for plaintiffs: H. H. Barry. Solicitor for defendants: N. W. Keller.

SUPREME COURT OF JUDICATURE. COURT OF APPEAL.

Reported by H. M. FITZGIBBON, Barrister-at-Law. (Before LORD ASHBOURNE, C., PALLES, C.B., FITZGIBBON and BARRY, L.JJ.)

NEENAN v. O'Keefe.

June 9, 1890.-Practice-Remittal to inferior CourtAppeal-Interference with discretion of Court of first

instance.

Principles on which the Court will proceed, on an appeal involving interference with the discretionary power of the Court below to remit an action to an inferior Court, considered.

Appeal from an order remitting an action for £500 damages for assault, false imprisonment, and malicious prosecution. The alleged facts were as follows:-The defendant, in the market-place of Mallow, had accused the plaintiff of stealing the shawl which she then wore, and she had been brought in custody before a magis

[Q. B.

trate, having been first detained for an hour and a half at the police barracks. The defendant did not appear at the hearing at Petty Sessions. He subsequently issued a summons against the plaintiff requiring her to attend at the Mallow Petty Sessions. Having heard the evidence, the magistrate refused to grant informations. The plaintiff then instituted the present action against the defendant. The plaintiff and her husband owned a small freehold farm worth about £100. The defendant applied to have the action remitted for trial before the County Court Judge, and Andrews, J., granted the application. From this decision the plaintiff appealed.

Moriarty, on behalf of the appellants, submitted that this was a serious and bona fide case, and ought not to have been remitted. The action involved character and the damages might be large. Kennedy v. Baxendale,, 5 Ir. L. T. Rep. 96, Ir. Rep. 5 C. L, 81; Mohun v. Creedon, 2 L. R. Ir. 115, followed in Regan v. Connell M. R., March, 1890.

M. Bourke, contra, cited Marron v. Hunter, 23 Ir. L. T. R. 2.

LORD ASHBOURNE, C.-Mr. Moriarty fairly stated that, this appeal being from the exercise of a judge's discretion, he had great difficulty in dealing with the matter. Andrews, J., arrived at the conclusion that the case was a proper one to remit. We should be satisfied very clearly of the existence of some points of law or some peculiar circumstances to justify us in altering his decision. There are no such facts here.. It would be a strong thing for us to reverse it. I would have arrived at the same conclusion. We, therefore, affirm the order and dismiss this appeal, with costs.

PALLES, C.B.-I quite agree. Remitting is essentially a matter of discretion. If I had been sitting in the Court below I would have remitted the case in the first instance. In certain cases the Court of Appeal, may arrive at the conclusion that it would work injustice to remit, but where we find that the damages are not reasonably likely to exceed £50, and there is no question of difficulty in law, and the circumstances of the parties are such that the case should be disposed of in the County Court, we then will not interfere with the discretion of the Court below in the absence of special circumstances.

FITZGIBBON and BARRY, L.JJ., concurred.

Appeal dismissed

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION. Reported by R. W. LUCAS, Barrister-at-Law. (Before O'BRIEN, HOLMES, and GIBSON, JJ.)

BANK OF IRELAND v. WATKINS.

Feb. 27, March 1, 1890.-Stay of execution-Land Law Act, 1887, ss. 30 (sub-s. 3), 34—“ Holding "Chancery letting.

The defendant was tenant of two farms, one of which exceeded the valuation of £50 a year, held under a Chancery letting for seven years. The second farm was › below the annual value of £50. The plaintiffs having' obtained judgment against the defendant, and issued a writ of fi. fa., and the defendant having applied for a stay of execution as regards his interest in the second farm:

Held, that the motion must be refused, as the "aggregate" of the "holdings" of the defendant amounted to more than £50 a year, and he was consequently excluded from the benefit of the Land Law Act, 1887, section 30, by the effect of sub-section 3.

It

Motion, on behalf of the defendant for stay of execution of a writ of fi. fa. issued by the plaintiffs on foot of a judgment against him for £100. appeared that the defendant was possessed of two farms of land, one being valued at £36 5s. and the other at £63 10s. This second was held under a Chancery letting for seven years, in reference to which no judicial rent could be fixed.

Drummond, in support of the motion. Under the Land Law Act, 1887, s. 30, we are entitled to a stay of execution as regards the holding valued under £50 a year, for, as to the second and larger farm, it being held under the Chancery letting, we are not entitled to have a judicial rent fixed, and consequently it is not a "holding" within the meaning of the Land Act. "Holding" or "holdings" in sub-s. 3 of s. 30 must refer to a farm or farms in regard to which a judicial rent has been, or can be, fixed, or which are within the provision of the Acts, L. L. Act, 1881, s. 57, L. L. Act, 1887, s. 34.

T. Pakenham Law, Q.C., for the plaintiffs. This application cannot be entertained, as the "aggregate' of defendant's holdings exceeds the £50 valuation limit of s. 30, ss. 3. "Holding" includes any land agricultural or pastoral in its character. The term holding must bear the more general interpretation, The object of the enactment was to exclude from the benefit of this section the more wealthy class of tenants; the reverse would be the result of the contention, contra: Ronaldson v. Latouche, 24 L. R. I. 344.

HOLMES, J.-The question whether this application can be entertained turns on the construction to be given to the 3rd sub-s. of s. 30 of the Act of 1887. In my opinion, the meaning of the terms "holding" and "holdings" must be ascertained by reference to section 34. Similar language occurs in the Act of 1870, s. 12, and the Act of 1881, s. 22.

In all the cases the object would appear to be the limiting of the respective enactments to the cases of needy tenants by excepting from their operation persons who from the extent of their holdings may fairly be supposed to be in more independent circumstances. I am of opinion that the words in question include all agricultural and pastoral holdings, whether they are within or without the provisions of the several Acts, and that any other construction would lead to absurd results.

GIBSON, J. The question now raised is new, and can only be decided by reference to the language contained in section 30 of the Land Law Act of 1881, which is in pari materia with section 12 of the Land Act of 1870, and section 22 of the Land Act of 1881. In my opinion, the only limit of the word "holding" in these sections referring to the aggregate of holdings is that the land must be agricultural or pastoral in its character, and it is not possible to further restrict the expression to holdings of a class entitled to the benefit of the statutes.

(Before O'BRIEN, C.J., HARRISON, O'BRIEN, and JOHNSON, JJ.

LORD SEATON V. CLARKE and others. May 10, 1890.-Practice-Service out of the juris diction-Substituted service-Form of order.

Where repeated attempts had been made to effect personal service of a writ of summons on a defendant out of the jurisdiction, the Court allowed substitution of service by registered letter addressed to the residence of the defendant, containing copies of the writ and of the order.

Application, on behalf of the plaintiff, for an order to substitute service of the writ of summons on the defendant by posting a registered letter, addressed to her at her residence in England.

The action was brought to recover £142 9s. 6d., arrears of rent due by defendant to plaintiff.

By order, dated the 25th of March, 1890, it was ordered that the plaintiff in this case should be at liberty to issue a writ of summons for service out of the jurisdiction, and that service should be made of the said writ, together with a copy of the order, upon the defendant in person in England.

In accordance with this order, repeated attempts were made to serve the defendant at her residence at Altrincham, in the county of Cheshire; but on each occasion the person in charge of the writ was unable to obtain an interview with the defendant, and finally the writ and order were served by leaving a true copy of the writ and order with a female who appeared to be a domestic servant at the house where the defendant was residing.

R. Manders, in support of the application. Every effort has been made to serve this defendant personally. In Ditton v. Bornemann (3 Times Reports 3) an order was made for substitution of service out of the jurisdiction by registered letter. O. VIII., r. 4, is not confined to cases of service within the jurisdiction. O. X. does not direct that service out of the jurisdiction must be personal service. The Court, therefore, can make an order "for substituted or other service" on this defendant " as may seem just." No injustice can be done by an order to serve her by registered letter.

The Court made the following order :-It is ordered that a service be made of the said writ of summons in this action, together with a copy of this order for the defendant, by transmitting by post a registered letter containing true copies of the said writ and of this order, addressed to the said defendant at her residence in England, be deemed good service of the said writ upon the defendant.

EXCHEQUER DIVISION, Reported by H. MACAULAY FITZGIBBON, Barristerat-Law. (Before PALLES, C.B., MURPHY, and ANDREWS, JJ.)

BELL v. GREAT NORTHERN RY. Co.

June 25, 1890.-New trial motion-Misdirection— Negligence-Damages-Fright-Nervous shock.

Nervous or mental shock caused by great fright arising from the negligence of the defendants, though not accompanied by any actual physical injury, may be taken into account by the jury as an element in estimating the damages to which a plaintiff is entitled. Victorian Ry.