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(B) INQUIRIES. 1. When Directed. (c) Damages.

The

The plaintiffs brought an action against the defendants for delivery to the plaintiffs of certain cargoes then at sea, to which they claimed to be entitled, for an injunction to prevent the defendants from receiving them and for damages for their detention. defendants by their pleadings claimed the right to receive the cargoes, and showed that they intended to receive them. Shortly after the writ was issued an order was made by consent under which the defendants received the cargoes, keeping accounts, and abiding by any order of the court as to the proceeds. At the time when this order was made only two of the cargoes had arrived in this country. At the hearing the judge held that the conduct of the defendants amounted to an unlawful detention of the cargoes, and gave judgment for the plaintiffs with an inquiry what damages had been sustained by them by reason of the detention of the cargoes by the defendants. The defendants appealed against the whole of this judgment, but subsequently abandoned their appeal against the portion containing the inquiry, and claimed to be entitled to reimbursement for expenses incurred by them in respect of the cargoes received under the consent order. The appeal was dismissed, and the defendants appealed to the House of Lords, who varied the judgment by allowing the claim to expenses, but affirmed it in other respects. No application was made to the House to vary or alter the terms of the inquiry, which accordingly remained as part of the judgment. The chief clerk made a certificate finding damages on the footing that there had been a detention of all the cargoes, commencing on their arrival in this country. The defendants applied to vary the certificate, contending that the effect of the decision of the House of Lords was that there had been in fact no wrongful detention, and that nominal damages only ought to be given :Held (Bowen, L.J., dissenting), that the inquiry in effect affirmed that there had been a wrongful detention of the cargoes in question giving rise to damages; that such an inquiry could not be satisfied by finding merely nominal damages, nor was it competent to the court in working out such an inquiry, not reversed by any court, to deprive it of all force and effect by reviewing the circumstances under which it was made; that the decision

of the House of Lords had left the inquiry in force, and that no reasonable ground had been shown for varying the certificate of the chief clerk-Held, by Bowen, L.J., that the effect of the decsion of the House of Lords was that

no act of possession under the consent order was wrongful, or gave any right to damages; that the court had no jurisdiction to give damages in a case where a wrongful act had not been committed, but only threatened; that the chief clerk was not precluded by the terms of the inquiry from finding that there were nominal damages only; that as he had made no distinction between the cargoes, but had apparently proceeded upon the view that taking possession under the consent order was itself an act of detention from which damages would flow, his certificate was wrong; and that the matter ought to be referred back to him

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| in order that he might state what were the wrongful act or acts of detention in respect of which he found damages, and what damages he found in respect of them. Dreyfus v. Peruvian Guano Co., 43 Ch. D. 316; 62 L. T. 518-C. A.

False Imprisonment.]-Where defendants, who had been imprisoned under an attachment, which was afterwards set aside for irregularity, commenced actions against the plaintiffs to recover damages for false imprisonment, the court stayed the actions, on the terms of the plaintiffs paying to the defendants their costs at law, and of the application to stay, and directed a reference with respect to a proper compensation for the injury which the defendants had suffered. Phillips v. Worth, 2 Russ. & M. 638.

The plaintiff arrested under an attachment, sued out by the defendant, which was afterwards set aside for irregularity, brought an action for false imprisonment against defendant. The court restrained the action, and referred it to the Master to settle a proper compensation. Bricknell v. Stamford, 1 Beav. 368; 3 Jur. 142.

Where a party is arrested by virtue of the process of this court, which turns out to be irregular, he may apply to the court either for a reference to the Master to settle a proper compensation, or for liberty to bring an action. Ib.

Nuisance "Continuing Cause of an action to Action."]-At the trial of restrain a nuisance, an injunction was granted and an inquiry directed as to damages; the chief clerk assessed the damages down to the date of his certificate, the nuisance not having in the meanwhile been abated :-Held, that the principle of assessment was correct, the repetition of the nuisance since the trial being of action within continuing cause Order XXXVI. r. 58. Hole v. Chard Union, 63 L. J., Ch. 469; [1894] 1 Ch. 293; 7 R. 84; 70 L. T. 52-C. A. And see Witham v. Vane, 1884; W. N. 98.

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Specific Performance.]-The vendor of a share in a co-partnership business filed a bill had taken against the purchaser, who possession, charging that he had grossly mismanaged the property and destroyed its value, and praying that he might be declared to have accepted the title, and might be decreed to perform the contract specifically the court was of opinion that the title had not been accepted; and as a good title was not shown, a specific performance could not be decreed :Held, that upon a record so framed, no accounts nor inquiries could be directed as to the defendant's possession and management of the property, with a view to ascertain whether any and what sum ought to be paid or compensation made by him to the plaintiff. Stevens v. Guppy, 3 Russ. 171; 6 L. J. (o.s.) Ch. 164; 27 R. R. 59.

Loss of Title-Deeds.]-Property had been conveyed to defendant by way of indemnity, which, being no longer required, a reconveyance was executed, but the title-deeds were not forthcoming; and on a bill filed, the

(B) INQUIRIES. 1. When Directed. Master found that they were lost while in defendant's custody :-Held, that the onus was on the defendant to disprove negligence, and that the plaintiff was entitled to compensation, and to a reference to the Master to determine the amount. Principle on which such compensation is to be assessed. Brown v. Sewell, 1 Eq. Rep. 61.

Pollution of Stream.]-Where in an action to restrain the defendant from polluting a stream and for damages judgment was given for the plaintiff with costs, and an inquiry as to damages ordered, the costs of such inquiry were reserved in order that the court might exercise control over the manner in which the inquiry was conducted, and prevent the costs being unduly increased by the plaintiff. It is the usual practice to send such an inquiry to the chief clerk and not to a referee. Slack v. Midland Ry., 50 L. J.,

Ch. 196; 16 Ch. D. 81; 43 L. T. 434; 29 W. R. 302.

Form of Decree-Lord Cairns' Act.]Form of decree directing special inquiry as to damages under 21 & 22 Vict. c. 27, s. 2. Middleton v. Greenwood, 3 N. R. 150.

d. Suits Relating to Infants.

Concurrent Suits Benefit of Infant.] Where there are two suits brought by different prochain amis, the court will refer them to see which is most proper, because the court, as guardians of infants, will take care that what is done shall be for their benefit. Anon., 3 Atk. 603.

Reference, which suit by prochain amis most advantageous to infant: one ordered to prosecute, other not restrained further, it being at his peril to proceed. Owen v. Owen,

Dick. 310.

Where two suits are instituted in the name of an infant by different persons, acting as his next friends, it is of course to refer it to the Master, to see which is most for the infant's benefit, upon the mere allegation of the counsel, that both suits are for the same purpose; it being at the risk of the party moving, in case the allegation should prove untrue, to have the order for reference discharged, with costs, upon the special application of the other party. Sullivan v. Sullivan, 2 Mer. 40.

Upon such a reference the Master is at liberty to suggest any improvement in the frame of the suit, and to report any special circumstances that may be for the infant's advantage. Ib.

Best-framed Suit proceeds.]-Of several suits on behalf of infants, the court will prefer that which is capable from its frame of being most beneficially prosecuted, notwithstanding that in point of form the relief sought by another is more extensive. Campbell v. Campbell, 2 Mont. & C. 25.

Application at Hearing.]-Where two suits are instituted on behalf of an infant, it, is not of course, when one of such suits is in the paper for hearing, to refer it to the Master

(d) Suits Relating to Infants.

to ascertain which of the two suits is most beneficial for the infant. Rundle v. Rundle, 11 Beav. 33.

After Decree.]-After a decree in one of two suits commenced in the name of an infant, it is not usual to refer it to the Master to inquire which suit is most beneficial. Taylor v. Oldham, Jac. 527.

Bill not Dismissed before Report unless by Consent.]-Infants being made co-plaintiffs in two suits relative to the same matter, the court will not, before a decree, on the Master's report that one suit is more for the benefit of the infants, dismiss. the bill in the other suit unless by consent. Mortimer v. West, 1 Swan. 358; 1 Wils. Ch. 159.

Facts sufficiently Apparent without Reference.]-There being two suits instituted by different persons as the next friends of an infant, the bill of one of them ordered to be taken off the file, with costs against such next friend, without reference to the Master, the circumstances being sufficiently apparent. Askew v. Riddle, 2 Jur. 917.

Priority of First Suit not sufficient ground for Dismissing Second.]—Where two suits on behalf of infants by different next friends were referred to the Master to ascertain which was most for their benefit, and the Master reported in favour of the second suit-It was held not sufficient to show priority; but some distinct reason must be given why the Master had come to a wrong decision. Petition against the Master's report dismissed with costs. Talbot v. Shrewsbury (Earl), 4 Jur. 1036.

Chancellor's Court or Rolls.]-Two suits were instituted for similar objects; one was attached to the Lord Chancellor, and the other to the Master of the Rolls' court. A reference was made at the Rolls to inquire which was most for the benefit of the infants. Starten v. Bartholomew, 5 Beav. 372; 12 L. J., Ch. 10.

Impropriety of Conduct by Solicitor in First Suit.]-Two suits were instituted on behalf of infants, but it was found that it was most for their benefit to prosecute the second. The first suit was properly instituted; but there being some impropriety of conduct on the part of the solicitor, who instituted it on his own authority, and nominated his brother as next friend, the first bill was, upon an interlocutory application, dismissed without costs. Starten v. Bartholomew, 6 Beav. 143;

12 L. J., Ch. 179.

Stay of Proceedings.]-A reference as to which of two suits is most for the benefit of infant plaintiffs, does not of itself stay the proceedings in the suit. Westby v. Westby,

1 De G. & Sm. 410; 16 L. J., Ch. 483; 11 Jur. 764.

Other Proceedings-Benefit of InfantInquiry Directed.]-A father left a great personal estate to two infant children, and made his wife executrix. A bill was brought in the infant's name by a relation as prochain ami, to call the mother to an account. On affidavit of several other relations that this

(B) INQUIRIES. 1. When Directed. suit in the infant's name was out of pique, and not for the infant's good, the court referred it to a Master, who reporting the matter to be so, the suit was stayed. Da Costa v. Da Costa, 3 P. Wms. 140. Court will not direct inquiry whether suit is for benefit of infant, unless strong case of no benefit or improper motive. Stevens v. Stevens, 6 Mad. 97.

- Suit instituted by stranger Solicitor.] -A suit being instituted on behalf of infants by a solicitor wholly unconnected with the family, it was, on the motion of the defendant, referred to the Master to inquire whether it would be for the infant's benefit that the suit should be prosecuted, the defendant undertaking to render to the Master the accounts prayed for by the bill. Richardson v. Millar, 1 Sim. 133.

Interest of Infant to be stated to Court.]-Where an application is made for a reference, to inquire whether any proceed ings will be for the benefit of infants, the interest of infants must be stated to the court.

Anon., 1 L. J. (o.s.) Ch. 33, and see Sheppard v. Green, 1 Moll. 275, and Hickson v. Aylward, 3 Moll. 27.

Decree by consent without Reference.]—Infants are bound by a decree taken by consent, although no reference to a Master to inquire whether it was to their benefit. Wall v. Bushby, 1 Bro. C. C. 484.

Master's Report not subject to Exceptions.]-A Master's report on a reference to inquire whether a suit instituted in the name of an infant, by a prochain ami, was necessary, is not a subject for exceptions; but any objection to it must be made on the motion to confirm the report. Whittaker v. Marlar, 1 Cox, 285.

- Inquiry as to benefit from Accounts taken.]-Although the Court of Chancery will not allow an infant's suit to proceed which is not for his benefit, it ought not, in making a decree for accounts in such a suit, to direct an inquiry whether any benefit has accrued to the infant from the suit, so as to make the answer to that inquiry depend on the result of the accounts. Clayton v. Clarke, 3 De G. F. & J. 682.

Infants added as Parties after Report.]-Infants being added as parties to a cause after the report had been made, it was referred to the Master to inquire whether it would be for their benefit that the report should be adopted as to them. Brookfield v. Bradley, Jac. 632.

Next friend applying for Inquiry as to his own Suit.]-No reference, upon an application by the next friend of an infant, to see whether a suit which he himself has instituted is for the infant's benefit. Jones v. Powell, 2 Mer. 141.

Motion on affidavits to stay refused.] -Motion to stay a suit commenced in the name of infants for accounts of their property, upon affidavits, representing that the suit was not for their benefit refused. Lyons v. Blenkin, Jac. 259, 23 R. R. 38.

(d) Suits Relating to Infants.

Sanction of Father.] The court refused to dismiss or refer to the Master for inquiry the bill of infant residuary legatees filed by a next friend, although the estate might have been administered under a claim, or the fund protected by payment into court under the Trustee Relief Act, the propriety of any expenses incurred being a matter for consideration in ultimately dealing with the costs of the suit. Smallwood v. Rutter, 9 Hare, 24; 20 L. J. Ch. 332; 15 Jur. 370.

The court had regard to the exercise of the discretion of the father of the infant plaintiffs in authorising the suit, no improper motives appearing, although the father did not contribute to the maintenance of the infants, and lived apart from his wife, by whom the infants were supported. Ib.

Stranger Next Friend.]-In the absence of any fact impeaching the solvency, conduct,

or character of the next friend of the infant

inquiries

plaintiffs in the cause, notwithstanding he was
a stranger to the family, the court refused to
refer it to the Master to inquire whether he
was a proper person to be such next friend. Ib.
Waiving
Inquiry as to
desirability.]-Tenant in tail having at the
hearing waived certain accounts touching the
settled estate, by the decree on supplemental
bill filed on his death, to make the next in
remainder, who were infants, parties, it was
referred to the Master to inquire and report
whether it was, and will be, for the benefit
of the minors, that the inquiries consented to
be waived should be relinquished. Hallyburton
v. Leslie, 1 Moll. 505.

Suspicious motives-Inquiry whether Next Friend a proper person.]-Where a bill has been filed on behalf of infants, under circumstances raising a strong suspicion against the motives of the next friend, the court will direct an inquiry whether the suit is for the next friend is a proper person to conduct it, benefit of the infants, and if so, whether such or otherwise, who is a proper person to be appointed next friend in his place. Nalder v. Hawkins, 2 Myl. & K. 243; Coop. temp. Brough. 178.

Where a suit was instituted in the name of an infant, by his next friend, under suspicious circumstances, though there was no other suit pending in which the infant was concerned, a reference was directed to inquire whether it was for his benefit that the suit should be prosecuted. Anon., 5 L. J., Ch. 52.

Removal of next friend for misconduct.]— The court will not, upon petition of an infant party, direct an inquiry whether the cause has been properly conducted, but if the next friend or guardian does not do his duty, he will be removed. Russell v. Sharpe, 1 J. & W. 482.

Time for Reference as to Benefit to Infant.]-At the hearing of a cause, on a bill filed on behalf of an infant by his next friend it is too late to attempt to show that the filing of such bill was not for the benefit of the infant. Lacy v. Burchnall, 10 L. T. 408; 3 N. R. 293.

(e) Testamentary Matters.

as to all such worldly estate and effects as it may please God to bless me withal, or I may leave, or I may be entitled to, at the time of my decease, whether real or personal, not before given or disposed of," if there was no freehold estate, inquiries were directed to ascertain that fact; and also, whether there was any custom of surrendering a vested interest in reversion or remainder expectant upon an estate tail. Church v. Munday, 15 Ves. 396.

(B) INQUIRIES. 1. When Directed. Defendant cannot, before answer, obtain reference to Master, whether suit is instituted for infant's benefit. St. John v. Besborough (Earl), 1 Hog. 41. Suit Dismissed with Costs Against Next Friend.]-The Master reported that a suit instituted on behalf of infants was improperly instituted, and ought not to be prosecuted; it was dismissed, with costs to be paid by the next friend. Fox v. Suwerkorp, 1 Beav. 583. In a clear case, the court, being of opinion that a suit had been commenced by the next friend of infants, to promote his own views, and not for the benefit of the infants, summarily, and without a reference to the Master, dismissed it, with costs to be paid by the next friend. Sale v. Sale, 1 Beav. 586.

Supplemental Suit-Adopting Accounts.] -After a decree and order, on further directions, in a suit by the creditors, the plaintiffs discovered that there was an infant tenant in tail of the deceased's real estates in existence, who was born prior to the filing of the bill. On the hearing of a supplemental suit by which the infant was first brought before the court, the accounts were directed to be taken over as against the infant, with liberty to the Master to adopt any of the accounts before taken, if he should find it beneficial to the infant to do so. Baillie v. Jackson, 10 Sim. 167.

Administration Suit Sale of Realty Accounts of Personal Estate Taken First.]In a suit for administering the property of a person deceased, if an infant defendant is interested in the real estates, the court will not direct those estates to be sold until the accounts of the personal estate have been taken, and the cause heard for further directions. Ib.

Appeal from Order of Reference.]-The Court of Appeal will not interfere with the discretion of the court below as to directing an inquiry whether a suit is for an infant plaintiff's benefit. Pensotti V. Pensotti, 30 L. T. 348; 22 W. R. 461. Robinson v. Stone, C. P. C. 369.

And see

Beneficial Compromise-No Inquiry.]-A proposed compromise of a suit, appearing to be for the benefit of an infant defendant, the court sanctioned it without a reference to the Master. Lippiat v. Holley, 1 Beav. 423.

Inquiry as to Form of Infant's Defence.] -Under the circumstances the court ordered a reference to the Master, to inquire and report whether it would be for the benefit of the infant, that the suit should be defended in his name or that of his trustee; and if to be defended, what were the funds properly applicable to the defence; and if not to be defended, on what terms it would be proper that it should be amicably settled. Mount Cashel, 2 Ir. Eq. R. 241.

Hare v.

e. Testamentary Matters. Devise Copyholds Existence of Freeholds.]-Upon appeal, the Lord Chancellor's opinion being, that the reversion of the copyhold estate passed under the general devise,

Alleged Suppression of Will.]—In a suit by devisees against an heir-at-law alleging suppression by the heir of the testator's will, and praying delivery up of the premises, no case of suppression was made at the hearing, but the plaintiffs showed distinctly that the will under which they claimed had existed, and was in the house of the testatrix, within two years before her death, during which two years the heir-at-law with his family had been living in the house :-Held, that this was a case for an inquiry, and for an issue as to whether the testatrix did devise the lands in manner alleged. Smith v. Spencer, 1 Y. & Coll. C. C. 75; 5 Jur. 1056.

Alleged Revocation of Will.]-An heir-atlaw, by his answer admitting the execution of the will under which the plaintiff claims, but alleging that it was revoked by a subsequent will, whereby the estate in question was devised to the defendant, which subsequent will was unintentionally destroyed; the defendant in such a case, not giving any evidence of the alleged revocation beyond the mere statement which was read by the plaininquiry respecting it. tiff from the answer, is not entitled to any Whitaker v. Newman,

2 Hare, 299; 12 L. J., Ch. 350; 7 Jur. 231.

Power to appoint Stock if no ChildrenInquiry as to Child.]-Devisee of stock for children, referred to the Master for inquiry life, with absolute power of appointment if no about a child upon the grounds for suspicion. Sculthorp v. Burgess, 1 Ves. 91.

Undue Influence-Spiritual Adviser-Inquiry.]-Where the spiritual adviser of a testator takes advantage of that situation to become the agent and manager of the testator's temporal affairs, and while holding those opposite characters becomes a donee of very large gifts under the testator's will, there is strong ground made out for inquiry as to undue influence. Middleton v. Sherburne, 4 Y. & Coll. 352.

Suit by Devisee against Heir-Inquiry as to Proceedings for Defending Action.] Pending a suit for the establishment of a concurred in the will, and in the establishment will of real estate, the heir-at-law, who had ejectment and detinue, to recover the estate, of the suit, having commenced actions of and the title-deeds, the court, on the application of the trustee, referred it to the Master, to inquire what proceedings ought to be taken to defend the actions, and restrained the action in the meantime. Edgecumbe v. Carpenter, 1 Beav. 171; 8 L. J., Ch. 17.

Premature Application for Reference.] On an issue devisavit vel non, the jury found

(B) INQUIRIES. 1. When Directed. in favour of the will; but before the cause had been heard on the equity reserved, the devisees in trust applied for a reference, to inquire whether a contract entered into by them was beneficial-Held, that the application was premature. Bowman v. Bell, 7 Beav.

161.

Advances by Executor for MaintenanceInquiry.]-A testator gave a legacy to A. without interest, and directed his executor to maintain A. and put him out in the world. The executor apprenticed A., and spent money in preparing him for his profession :-Held, on a claim being filed for the legacy, that the executor had no right to an inquiry as to the sums so paid by him. Hawes v. Porter, 1 W. R. 178.

For Heir-at-Law.]-The form of minutes asking for an inquiry as to the heir-at-law is, "Let an inquiry be made who was the heir-atlaw of the testator (or intestate) at the time of his death, and whether such heir is living or dead, and if dead who, by devise, descent, or otherwise, is now entitled to such real estate (if any) of the testator (or intestate) as descended to such heir-at-law." Openshaw v. Daries, 22 W. R. 680.

f. Debenture-Holders' Action in. See COMPANY.

g. In Administration Suits. See EXECUTOR AND ADMINISTRATOR.

h. Other Matters of Inquiry. Expenses of Committee of Lunatic.]-An inquiry was directed as to which of the debts of the committee of a lunatic were properly incurred in keeping up the lunatic's establishment. Weld, In re, 51 L. J., Ch. 913; 20 Ch. D. 451; 46 L. T. 397; 30 W. R. 385-C. A. Partnership Premium Interest on Amount. Where an inquiry was directed

to be made in chambers as to the amount of premium to be returned to one partner on a dissolution of partnership, and a certain amount was certified by the chief clerk, whose certificate was afterwards confirmed by the judge and the Court of Appeal, interest on the amount was directed to be paid from the date of the certificate. Brewer v. Yorke, 46 L. T. 289-C.A.

Bankruptcy-Inquiry as to Capital to Capital and Stock-in-Trade.]-Upon an exception to a Master's report, stating the capital and stock-in-trade of a partnership to consist, at the time of the bankruptcy of one of the partners, of the estimated value of the dead stock employed in it, it was referred back to the Master to state what was the amount of the

capital, and also of the stock-in-trade at that time, in order to adjust the amount of subsequent profits, to which the assignees of the bankrupt partner were to be entitled, as against the other partners, who had continued to trade with the partnership property after the bankruptcy. Crawshay v. Collins, 1 J. & ! W. 267; 21 R. R. 168.

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Special Inquiry.]—Where the answer to a bill for an account sets up a counterclaim, as to which it is doubtful whether it would or would not be available to the defendant as an item of discharge under the general account directed by the decree, the court, as the safer course, will make it the subject of a special inquiry. Lord v. Wightwick, 2 Ph. 110.

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Equitable Mortgage Bankruptcy Validity - Amount - Inquiry.]-Court will itself, in bankruptcy, decide on the validity of an equitable mortgage without reference to commissioners; but when established, a reference is made to ascertain what is due upon it. Jennings, Ex p., 1 Madd. 331.

Plaintiff Failing to Prove Title Further Inquiry.]-Where the plaintiff failed to prove his right to an equitable mortgage, the court refused to direct a reference to the Master for further inquiry. Chapman v. Chapman, 13 Beav. 308; 20 L. J., Ch. 465; 15 Jur. 265.

The

Children-Inquiry.]-The bill stated that some of the plaintiffs were children of another plaintiff, and that they and certain defendants were the only children of the marriage. answers did not deny the statement, but merely stated that the defendants did not know whether these were all the children, and did not raise an objection for want of parties relationship between the plaintiff's :-Held, on this ground. There was no evidence of the

at the hearing, that a case was made for inquiry as to this, and for payment into court of the trust fund. Fowler v. Reynal, 3 Mac. & G. 500; 21 L. J., Ch. 121; 15 Jur. 1019.

Inquiry whether Shares IncumberedFund to be Invested in Land.]-Lord Eldon's decision, that there must be a reference to the Master to inquire whether the parties interested in funds to be invested in land had in

any manner incumbered their interests, before the money can be paid to them, has always been followed in Ireland. St. Antonio v. Adderley, 2 Hog. 6.

Loss of Bill-Inquiry.]-The proof of payment by the indorsee to the holder, and the delivery up to him of a bill alleged to be lost, coupled with the admission of the acceptor that he had not paid, and the usual affidavit of the plaintiff upon filing his bill of the loss, were held insufficient to entitle the plaintiff to an inquiry. Cockell v. Bridgeman, 4 Beav. 499.

Notice of Settlement-Inquiry.]—Where the question in the cause turned upon the fact

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