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(A) ACCOUNTS. 6. Verification of Accounts. account, with liberty to state special circumstances. Turner v. Corney, 5 Beav. 515.

Tradesmen's and Bankers' Accounts, &c.] -Under special circumstances, accounts between master and servant, tradesmen and shopmen, banker and customers, are, from the necessity of the case and the convenience of mankind, admitted as evidence in favour of the party writing them; but the Master ought not to receive such evidence without stating the special circumstances under which he conceives them receivable in evidence. Symonds v. Gas Light & Coke Co., 11 Beav. 283.

Trustee's Books.]-Books of account, kept by a trustee and her agents, were rendered as evidence of disbursements in reference to the trust estate. The chief clerk, as the trustee could not produce strict vouchers, admitted the books as evidence; and a motion to vary the certificate was refused with costs. Cookes v. Cookes, 9 Jur. (N.s.) 843; 11 W. R. 871. Merchants' Accounts.]-In taking accounts as between merchants or traders, entries in the books of one party of sums received by him to the credit of the other are good evidence in favour of the latter. On the other hand, entries in the same books of payments made by the one on account of the other are not conclusive, but must be proved by the former in the usual way. Reeve v. Whitmore, 2 Drew. & Sm. 446; 11 Jur. 12 L. T. 724; 13 W. R. 913.

(N.S.) 722;

Discharge by Books.]-A man who charges himself by books, &c., in account, shall be allowed to discharge himself in the same way. Darston V. Orford (Earl), 1 Eq. Abr. 10; Colles, P. C. 299; Pre. Ch. 188. But if he be disproved in any particular, he may be put to prove the whole. Bayley v. Hill. Id.

Production of False Entries.]-The defendant, in a suit instituted against him as agent for an account, moved that certain accounts alleged in the bill to contain false entries might be produced, on an affidavit that the vouchers were lost, and that he could not otherwise put in a sufficient answer :-The motion was refused with costs. Turner v. Burkinshaw, 4 Giff. 399.

Account in Handwriting of Deceased Person.]-A. B. and C. D. had many business dealings and transactions together. During such dealings, A. B. gave C. D. a bond for £4,000. A. B. and C. D. having both died, the administrator of C. D. filed a bill against the executor of A. B. to enforce payment of

the bond. The executor of A. B. also filed a bill against the administrator of C. D. for an account of the dealings and transactions between them, and claiming that the bond should be treated, not as absolute and according to the letter, but as subject to or forming part of the account. A decree was made in the two suits, referring it to the Master to take the accounts, and to inquire under what circumstances the bond was given, and in this decree an account, in the handwriting of C. D., which had been proved, was entered as read-Held, that the account was properly

(b) Examination of Accounting Party. receivable by the Master as evidence, as well in favour of the administrator of C. D. and against the executor of A. B., as in favour of the executor of A. B. and against the administrator of C. D. Dickin v. Ward, 20 L. J., Ch. 211 15 Jur. 834.

Loss of Books-Report Directed.]-Partnership accounts having been directed to be taken by the Master in a case in which some of the books had been lost, the court directed the Master, if it should appear in taking the account that any necessary books, &c., should be wanting, to report the same specially, and books he was unable to proceed satisfactorily whether in consequence of the want of such in taking the account. Millar v. Craig, 6 Beav. 433.

Old Account.]-And where the account had been delivered fourteen years, and no objection taken, and defendant had lost his books by seizure in a foreign country :Held, that defendant should not be charged beyond his own oath. Holtscomb v. Rivers, 1 Ch. Ca. 127.

Where the account was of twenty years' standing, the defendant was allowed to prove his account upon oath for what he could not prove by books or cancelled bonds. Peyton v. Green, 1 Ch. Rep. 146.

Destruction of Books by Accounting Party-Everything presumed against him.]— When an accounting party destroys the accounts before the matters have been finally adjusted, and still more pending a litigation, the court will presume everything most unfavourable to him, consistent with the established facts. The court will not act on the testimony of a single witness against the express denial on oath of the defendant; but where the written evidence has been destroyed by the defendant, pendente lite, the court will assume that, if forthcoming, it would have proved the statement of the single witness. Gray v. Haig, 20 Beav. 219.

Annual Accounting by Affidavit.]—The acting executor to whom the produce of an estate in Antigua, belonging to an infant, was consigned, was directed to account annually by affidavit. Brooks v. Oliver, Ambl. 406.

General and Particular Account.]-Where an inquiry was directed as to a particular account, and the defendant by his answer and examination relied on a general account including both the items of the particular account and general items, but was unable to prove the general items (which were in his by such a failure of proof the general account discharge) by the usual evidence :-Held, that was cut down to the particular account, and that the defendant must be bound by the result. Cropper v. Knapman, 4 Y. & C. 249. And see col. 139.

b. Examination of Accounting Party. See R. S. C., 1883, Ord. LV. r. 16. brought in and If a party be dissatisfied with the accounts chambers, he may examine the accounting vouched in the judge's party viva voce, but should give notice of the points as Wormsley v. Sturt, 22 Beav. 398. to which he is to be examined.

(A) ACCOUNTS. 6. Verification of Accounts. (c) Special Directions. The accounting party may, in such case, be required to produce the documents at his examination, notwithstanding an existing order for production elsewhere. Ib.

Before or after vouching Account.]-An accounting defendant, who has carried in an account and verified it by affidavit, may be cross-examined on his affidavit as well before he has vouched his account as afterwards. Meacham v. Cooper, 42 L. J., Ch. 876; L. R. 16 Eq. 102; 21 W. R. 745.

Notice of Points or Items.]-An executor, who has made the ordinary affidavit in support of his account, may be cross-examined thereupon, but notice must be given to him of the points on which it is desired to examine him. Lord v. Lord, 35 L. J., Ch. 683; L. R. 2 Eq. 605; 12 Jur. (N.S.) 698.

A defendant, who is summoned to be crossexamined on an account he has filed, is entitled to notice of the items objected to. M'Arthur v. Dudgeon, 42 L. J., Ch. 263; L. R. 15 Eq. 102; 21 W. R. 166. See Wormsley v. Street, supra.

Consent to Affidavit no waiver of.]-A party, by consenting to allow an accounting party to put in an affidavit instead of an examination, is not precluded from afterwards insisting on having an examination, if the discovery given by the affidavit be unsatisfactory. A.G. v. Chester Corporation, 11 Beav.

169.

Omission of Receipts.]-A defendant in a suit for taking accounts omitted to insert in his examination any receipts or payments by him during a certain period. The plaintiff, however, proved receipts by him during that period. The court refused to allow the defendant to bring in a further examination or additional accounts, or to give any evidence of payments, in order to discharge himself from those receipts. Maddeford v. Austwick, 11 Sim. 209; 10 L. J., Ch. 105; 4 Jur. 1107.

Cross-examination of Person seeking to Charge-Notice.]-The rule that in crossexamination upon an account, notice of the items to which the cross-examination will be directed must be given to the party bringing in the account applies to the cross-examination of a party seeking to charge by his account, as well as to the case of a merely accounting party. Bates v. Eley, 45 L. J., Ch. 270; 1 Ch. D. 473; 34 L. T. 50; 24 W. R. 424.

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The meaning of s. 54 of the Chancery Procedure Act, 1853, is, that where vouchers have been lost, or the accounts cannot be taken in the ordinary way, the court may give special, directions; but such directions will not be

given unless it appears that the ordinary evidence cannot be had, not merely to save expense. Lodge V. Pritchard, 3 De G. M. & G. 906.

Applications under that section ought to be made to the judge in chambers, and not in court. Hardman v. Wright, 15 W. R. 953. Semble, that the 15 & 16 Vict. c. 86, s. 54, does not operate retrospectively. Ib.

Books Taken as Prima Facie Evidence.] Where, under a decree directing accounts to be taken, no order was obtained under s. 54 of the statute 15 & 16 Vict. c. 86, that the books of account should be taken as prima facie evidence, but the judge's chief clerk so admitted them and granted his certificate, the Court of Appeal, upon a motion to discharge the certificate, refused the same, but without costs. Newberry v. Benson, 23 L. J., Ch. 1003.

Circumstances under which books of account were allowed to be taken as prima facie evidence under 15 & 16 Vict. c. 86, s. 54. Hardman v. Wright, 15 W. R. 953.

Accounts recorded in the Court of Chancery in Jamaica, in a suit instituted against executors who had proved the testator's will in that island, ordered, in a suit against them in England, to be taken under the 15 & 16 Vict. c. 86, s. 54, as prima facie evidence of the truth of the matters therein contained, with liberty to the plaintiff to surcharge and falsify. Sleigh v. Lawson, 3 K. & J. 292; 26 L. J., Ch. 553.

A trustee under the will of a testator who died in 1834, kept the trust accounts open to be inspected by the cestuis que trust, who all lived near together and in communication. In 1855 an examination of the books of account was made on behalf of two of them. The court allowed the books to be taken as prima facie evidence of accounts till that examination. Banks v. Cartwright, 15 W. R.

417.

Partnership Books.]-Semble, that by the ordinary rules of the court partnership books are admissible in evidence for and against all the partners and their estates. Lodge v. Pritchard, 3 De G. M. & G. 906.

Agent or Bailiff Mixing his Principal's Property with his own.]-Agent, or bailiff, confounding his principal's property with his own, charged with the whole, except what he can prove to be his own; and in this instance (the case of a breach of the terms upon which the court dissolved an injunction) the inquiry was directed with costs. The court refused, in such a case, a prospective direction to admit books not legal évidence, though usual in a fair case, as where, from want of notice of an adverse claim, a strict account cannot be given; and merely gave liberty to apply upon any question of evidence. Lupton v. White, 15 Ves. 432; 10 R. R. 94.

Estate of Married Woman-Inquiry as to Property being Separate.]-In a suit against

(A) ACCOUNTS.

defendants, who were the personal representatives both of a testatrix (who died during coverture) and of her husband, praying an account of her separate estate; and a declaration that certain sums of stock which stood, and always had stood, in her name, constituted part of that estate; although the husband and his executors during a long period of years had uniformly acknowledged those sums to be, and dealt with them as being, part of her separate property; and although strong evidence was adduced by the plaintiff, which was not met by any evidence on the other side, yet the court refused to make the declaration at the original hearing, and only referred it. to the Master to take the account generally, with special inquiries founded upon evidence. Hornby v. Hunter, 1 Russ. 89. Affirmed, 5 Russ. 149.

the

Reopening after Forty years-Special Directions.]-Where an entry in an administrator's account, which had been settled, was shown to be fraudulently made, the court in reopening the account gave the Master directions that if he found a difficulty in taking the account, owing to lapse of time or loss of documents, he should specify the difficulty and all the circumstances to the court. Allfrey v. Allfrey, 1 Mac. & G. 87; 1 H. & Tw. 179; 13 Jur. 269.

Debts Returned by Executor to Stamp Office Declaration.]-In a suit by residuary legatees against the personal representatives of the original executor, claiming as a debt the sum stated by the executor in his return to the Stamp Office, but which was not admitted to be correctly or actually due:Held, that the plaintiffs were not entitled to a declaration that such sum was to be taken as an item in the account to be taken, although it was admissible as evidence tending to show that the defendant ought to be charged with that particular sum. Tomlin v. Tomlin, 1 Hare, 236. And see Abbey v. Petch, 1 Y. & C. C. C. 258; 11 L. J., Ch. 124; 6 Jur. 433.

General Account Deciding Particular Items.]-At the hearing of a suit for a general account, particular items may be decided upon. Hill v. South Staffordshire Ry., 11 Jur. (N.S.) 192; 12 L. T. 63.

Mixed Fund-Mode of Taking Account.]— There being a mixed fund in the hands of the court by its receiver, consisting of pure personalty, rents of real estate, and money produced by sale of real estate, the accounts must be taken on the footing of the decree in Coote v. Miltown (Lord) (1 Jo. & Lat. 501). Shore v. Shore, 26 L. J., Ch. 386; 5 W. R. 250.

7. Costs.

Follow Event.]-Costs generally follow the event of an account, but where the account is intricate or doubtful there shall be no costs. Pitt v. Page, 1 Bro. P. C. 1. And see Lyre v. Parnel, Vin. Abr. 367, pl. 23; and East India Co. v. Ekins, 6 Vin. Abr. 365, pl. 18; 2 Bro. P. C. 382.

7. Costs.

Plaintiff Substantially Right.]—In a bill for an account, the costs were given to the plaintiff, although a balance of £2,000 was found due from him to the defendant, the plaintiff having succeeded in the substantial matters of litigation. Principles on which the costs of a suit for an account are regulated. May v. Biggenden, 24 Beav. 207.

First and Second Mortgagees.]-A first mortgagee of a ship, with the sanction and authority of B., the second mortgagee, sold it and received the proceeds, which exceeded the amount due to him :-Held, that A. was accountable to B. in the character of trustee, and A. having insisted that there was a deficiency, and having neglected to account, and balance having been found against A. in a suit by B.-Held, that A. ought to pay the costs of the suit. B., however, had made charges, in which he failed, and the court gave neither party costs. Tanner v. Heard, 23 Beav. 555.

Agent Neglecting to Render Account.]-If an agent does not render his accounts within a reasonable time, he must bear the costs of a suit instituted to have the accounts taken, and it' will not be any excuse for him that he offered to pay on account a gross sum, which it turns out would have covered all that was due from him. Collyer v. Dudley, Turn. & R.

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32 Beav. 542.

An account was directed against the collector, not disturbing accounts settled with the predecessors, with liberty to surcharge, and the defendant, who resisted the account, was ordered to pay the costs of the hearing. Ib.

Whole Account Taken at Once.]-An account of tithe hay being decreed, the defendant appealed from so much as directed an account in respect of lands in the township of S., and the decree was to that extent ultimately reversed; pending the appeal, the plaintiff took the account as to all the lands, including those in the township of S., the court on application declining to restrain him from so doing. On an application for costs :-Held, that it was convenient that the whole account should be taken at the same time, and refused to make plaintiff pay costs of account as to the township of S.; but made him pay his own costs in respect of that part of the account. Drake v. Smyth, 1 M'Cle. & Y. 380.

Tenant by Elegit Receiving Rents in Excess of Debt.]-Where tenant by elegit

(B) INQUIRIES. 1. When Directed. (a) Generally. has received rents and profits beyond the debt, though he shall account to the debtor, yet he shall not pay costs. In such case appeal may be for costs only, where defendant agreed to pay them. Owen v. Griffith, Ambl. 520; 1 Ves. 249.

Apportionment-Defendants with several Defences.]-In a suit for an account of tithes the court, in decreeing an account and payment, may apportion the costs where the defendants have several defences; but where there is a common defence the costs must be paid by the defendants generally. Esdaile v. Peacock, 1 John. 216.

Reservation of Costs.]-It is the constant course of the court to reserve costs till after the report. Rider v. Bayley, 6 Vin. Abr. 332, pl. 32.

B. INQUIRIES. 1. WHEN DIRECTED. a. Generally.

Power of Court to direct Inquiry at any stage.]-The court has power at any stage to order an inquiry of fact to be made in chambers, pursuant to the Judicature Act, R. S. C., 1883, Ord. XXXIII. West London Dairy Society v. Abbott, 44 L. T. 376; 29 W. R. 584. And see Seton, J., 7th ed., passim.

But neither of the statutes 25 & 26 Vict. c. 42, nor 21 & 22 Vict. c. 27, extends to enable the court to direct an inquiry as to damages before the hearing of the cause. Wedmore v. Bristol Corporation, 1 N.R. 187.

Cases where full materials necessary.]The Vice-Chancellor on declining at present to make the order prayed, directed further affidavits as to the circumstances of the case; and said that he had more than once had occasion to remark, that when the court was asked, in order to save expense, at once to make orders on matters which properly ought to go to the Master in the first instance, it was impossible that the court could make any order except upon the full materials which would be required by the Master. These remarks pointed particularly to all applications for appointment of guardian, maintenance, &c., without a reference, where the funds are small. Anon., 16 Jur. 422.

Ground of Inquiry must be laid in Pleadings.]-On hearing of cause, an inquiry will not be directed to Master, unless ground of it is laid on the pleadings. Holloway v. Milard, 1 Madd. 414.

Possessory Suit-Conflict of Affidavits.]In a possessory suit, if there is a clear contradiction as to an important fact in conflicting affidavits, a reference will be made to the Master on the subject. Bills praying an injunction should generally require an answer. Sinclair v. Donegal (Marquis), Sau. & Sc. 374.

Fact within Knowledge of Plaintiff.]—An allegation in the answer, concerning a fact lying especially within the knowledge of the plaintiff, does not entitle the defendant to an inquiry on that point. Walker v. Woodward, 1 Russ. 107.

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Allegation in Bill Admitted by One Defendant.]-An allegation in the bill was admitted by one defendant, A., and denied by another, B., and the plaintiff who had not proved it proposed to waive his claim in respect of it; but this being opposed by A., an inquiry was directed as to the fact. Crow v. Carleton, 5 Beav. 521.

Plaintiff Failing to Prove Vital Fact in Title.] - Where the plaintiff failed in proving, at the hearing, a fact which was the very foundation of his title :-Held, that it was not the proper subject for an enquiry before the Master; and the bill was dismissed with costs, with liberty to file a new bill. Holden v. Hearn, 1 Beav. 445; 8 L. J., Ch. 260; 3 Jur. 428; and see Platel v. Craddock, C. P. Coop. 481.

Matters in Answer not put in Evidence.]Where matters are stated by the answer which are not put in evidence, it is in the discretion of the court to direct inquiries as to them before the Master. Connop v. Hayward, 1 Y. & C. C. C. 33.

A settled account, suggested by the answer, but not proved, is usually the subject of inquiry. Ib.

Suggestion in Answer-Limitation of Inquiry.]-Where, at the hearing of a cause, an inquiry is directed, founded on a suggestion in the answer, it ought to be strictly limited to the specific case suggested. M'Mahon v. Burchell, 2 Ph. 127; 1 Coop. C. C. 457. Varying, 3 Hare, 97.

Additional Inquiries at instance of Parties served with Judgment.]-An administration decree was obtained in a suit on December 12, 1863. On April 12, 1864, certain persons who had been served with the decree applied in chambers to have some inquiries added to the decree. They supported their application by reading a bill which they had filed in another branch of the court for the administration of the estate, in which bill there was an allegation which, if supported, would have entitled them to the inquiries. They also tendered evidence which had been filed in that other suit, and which had not been answered by the plaintiff in the present suit, when proceedings were stayed in consequence of the decree in the present suit. No evidence had been taken in the present suit upon the point. The Vice-Chancellor in chambers made the order for the inquiries. On July 19, 1867, the plaintiffs moved before his honour to discharge the order of April 12, 1864, which motion was refused, with costs. The plaintiffs now renewed their motion :Held, that the motion before the Court of Appeal was regular, and an order was madɔ for inquiries of such a nature as would ascertain the merits of the case without prejudicing the rights of either party. Foster v. Foster, 37 L. J., Ch. 168; L. R. 3 Ch. 330; 17 L. T. 403; 16 W. R. 238; and see Perkins v. Bradley, 1 Hare, 219.

Inquiry as to Title-Interpleader Suit.]— On a motion to dissolve an injunction in an interpleader suit, an order was made directing an inquiry as to the title of the defendant,

(c) Damages.

Stay of Actions Pending Inquiry.]—On a reference to the Master to inquire whether proceedings at law and in equity are for the same matter, all proceedings are in general stayed in the meantime. Amory v. Brodrich, Jac. 530. Without special order, Carwick v. Young, 2 Swan. 239.

(B) INQUIRIES. 1. When Directed. who moved; but with respect to the Codefendant, who had not answered, and did not appear upon the motion, only directing an inquiry whether he had made a claim. After the Master had made his report, and the court had pronounced its final order, the order of reference was discharged, and the consequen tial proceedings set aside at the instance of the plaintiff on the ground, first, that the order was irregular in not reciting an affidavit of service on the absent defendant; secondly, that it was contrary to the practice to direct an inquiry as to the title of the defendants until the answers of all of them had come in; and, thirdly, that the inquiry actually directed was defective, in not extending to the title of the absent defendant, as well as to that of the other. Masterman v. Lewin, 2 Ph. 182.

Semble, that the court has jurisdiction to order a reference to the Master, even upon a point which goes to destroy entirely the title of the plaintiffs to maintain the suit. Graham v. Whitmarsh, 2 L. J. (o.s.) Ch. 42.

Inquiries without Order drawn up.]-Cases in which inquiries in chambers may be prosecuted or made with or without an order of the court for that purpose having been drawn up. lxxviii.

Kelson v. Kelson, 9 Hare (App.)

Non-Prosecution of Inquiries.]-An inquiry directed by the decree, and not prosecuted before report made, allowed to be prosecuted after report made, only on the party prosecuting it, who was abroad, giving security for costs in the usual way before the Master. Dunn v. O'Meara, 1 Jur. 255.

Inquiries possibly futile.]-An equitable mortgagee filed a claim for an account, and for the appointment of new trustees against the heir (who disclaimed) of a deceased trustee; and an inquiry being asked at the hearing to ascertain the parties entitled to the equity of redemption, the court refused, at the instance of a party having only a redeemable interest, to direct inquiries which, on the satisfaction of the mortgage, might become useless. Wetherill v. Garbutt, 1 Sm. & G. 124.

b. Concurrent Suits for same Object. Defendant whether Doubly Vexed.] Suggestion that the defendant is doubly vexed by suits in equity and at law for the same matter, ascertained by reference to the Master. Boyd v. Heinzelman, 1 V. & B. 381.

Court Deciding on Necessity of Election.] Upon order being made on plaintiff to elect whether he will proceed at law or in equity, and on motion to discharge that order, court will, if there are sufficient facts before it, decide whether election necessary without reference to Master. Anon., 2 Madd. 395. Order to Compel Election-Subsequent Inquiry.]-Order to compel election to proceed at law, or in equity of course; but if upon a false suggestion, that the suits are for the same matter, discharged, and that question, if of any difficulty, referred to the Master; and all proceedings stayed in the meantime. Mills v. Fry, 3 V. & B. 9.

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Inquiry Obtained by Plea, not Motion.]Reference whether two suits are for the same the Exchequer; not by motion. Murray v. matter is obtained by plea in Chancery as in Shadwell, 17 Ves. 353.

Concurrent Information or Petition.] Where an information and a petition under the 52 Geo. 3, c. 101, are proceeding together, and include the same or part of the same objects, the court will refer it to the AttorneyGeneral to consider which should proceed. A.G. v. Green, 1 J. & W. 305.

Infants, in case of.]-See post, col. 111.

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Ascertainment Quantum Meruit.] claim quantum meruit, is proper for a jury, not for the Master. Downshire (Lady) v. Pollock, 2 Moll. 317.

Settlement by Court.]-In what cases a court of chancery will settle a difference in damages, by way of estimate, without sending the matter to be tried by a jury. Lannoy v. Wherry, 4 Bro. P. C. 630.

Amount.]

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Difficulty in Ascertaining Where a wrong has been committed, the wrongdoer must suffer from the impossibility of accurately ascertaining the amount of damage. Leeds (Duke) v. Amherst, 20 Beav.. 239.

Carrying on Trade in Breach of Covenant Statement of Items of Plaintiff's Claim for Damages.]--An inquiry as to damages was directed in an action to restrain the defendant from carrying on a certain trade in breach of his covenant. The defendant was ordered to make an affidavit of documents. This discovery was postponed until after the delivery by the plaintiffs of a statement in writing showing the various heads of claims for damages"-Held, that such a statement would not prevent an abuse of discovery; that it would be useless, for unless the plaintiff's obtained discovery first it could only be drawn in the most general way so as to include every conceivable head of claim, and that, therefore, the order postponing discovery must be disMaxim-Nordenfelt Guns and charged. Ammunition Co. v. Nordenfelt, 62 L. J.,

Ch. 749; [1893] 3 Ch. 122; 2 R. 538; 69 L. T. 471; 42 W. R. 38-C. A.

And see CONTRACT.

Damage to Land.]-Upon a reference to the Master to inquire as to the title to compensation for damage done to lands, the Master ought regularly to inquire whether the damage was temporary or permanent. Cator v. Croydon Canal Co., 4 Y. & C. 405; 13 L. J., Ch. 89.

Detention of Cargoes-Judgment varied but Inquiry standing-Nominal Damages.]—

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