Reconstruction of Benefit Society.] Society for raising an annuity fund for the members, the rate of subscription being too low, though the subsisting fund was equal to the annuities then payable; and no adequate remedy by the articles, inquiries were directed, first, to ascertain the state of the society, the defect of the plan, &c.; secondly, to provide a remedy, viz., by additional subscription, adequate to the object, by paying the arrears, and providing for the present and future annuities. Pearce v. Piper, 17 Ves. 1; 11 R. R. 1.

Rectification of Instrument-Inquiry as to Documents Bearing on.]-In a suit to rectify an instrument, the defendant is entitled to an inquiry as to the existence and nature of all written documents bearing upon the question, and deposed to be in existence, but not produced. Mortimer v. Shortall, 1 Con. & L. 417; 2 Dr. & W. 363.

Interest-Amount of.]-Motion for a reference to the Master to ascertain the amount of interest accrued due upon a demand since the date of allocating report, refused, an affidavit ascertaining the sum being sufficient. Mahon v. Dawson, Fl. & K. 178.

Inquiry as to Explanation or Qualification of Document.]-Where a document in the possession of the defendant is produced and read by the plaintiff at the hearing, under a general order for its production, the defendant will not be allowed to read from his answer any statement in explanation or qualification of the document (except as to the possession of it), but the court, if necessary, will direct an inquiry on the subject. Miller v. Gow, 1 Y. & Coll. C. C. 56.

on

Real Estates Purchased out of Rents of Settled Estates-Inquiry.]-By the settlement on the second marriage of A., his intended wife's father settled estates himself for life, remainder for the separate use of his daughter for life, remainder for the children of the marriage; and the trustees were directed to apply the rents, after the death of the survivor of the tenants for life, in the maintenance and education of the children during their minorities; and A. covenanted to permit his intended wife to enjoy any future property that might accrue to her, for her separate use; and her father covenanted that all the personal property he should die possessed of should be settled on his

daughter and her children, in the same manner as the property comprised in the settlement, subject to any other dispositions, qualifications, or charges that he might make by his will. The father died, having bequeathed his residuary estate to A., and appointed him his executor. A. entered into possession of the settled estates, and received the rents and mixed them with his own moneys. There was issue of the marriage two children. A. maintained them at his own expense, and died, having by his will given them benefits in real estates, which it was alleged he had purchased in part with the rents of the settled estates :Held, that A. was a purchaser of the trust for the maintenance and education of the children, and that his executors were entitled to be allowed, in account, the sums which it would have been proper to apply for those purposes; that the covenant by the father of the wife was a provision against intestacy only; that the sums due from A. to his children being a debt, were not satisfied by the benefits given them by his will; but an inquiry was directed as to what part of the real estates devised for their benefit had been purchased by A. out of the rents of the settled estates. Stocken v. Stocken, 4 Sm. 152; 4 Myl. & C. 95; 2 Myl. & K. 489; 4 L. J., Ch. 278; 7 L. J., Ch. 305; 2 Jur. 693.

Official Assignee Inquiry into Appointment of.] In suits by or against the assignees of a bankrupt, where the bankruptcy took place and the suit was instituted before the statute directing the appointment of official assignees, and no official assignee is a party to the suit, at the hearing any of the parties are entitled to an inquiry whether an official assignee of the bankrupt's estate has been appointed. Tatam v. Williams, 3 Hare, 353.

Powers of Leasing-Inquiry whether usual in Ireland.]-A reference was made to the Master to inquire whether certain proposed powers of leasing were usual in that part of Ireland in which the estates were situated, and whether any circumstances connected with the property rendered such powers expedient, and to the interest of all parties, with liberty state special circumstances. (Duke) v. Abercorn (Marquis), 1 Myl. & C. Bedford 312; 5 L. J., Ch. 230.

to

Admission by one Defendant, Denial by Another.]-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.

Matters immaterial to Issue-Inquiry not directed.]-W. C. being seised in fee simple of divers parcels of lands, all subject to an annuity for the life of his mother, and to a portion for his brother, mortgaged one parcel and sold others. Under a decree for raising the portion, several parcels, including the mortgaged premises, were sold in the Master's office, subject to the annuity, but the deeds of conveyance to the purchasers did not state

(B) INQUIRIES.

decree a

Kirwan, 9 Cl. & F. 716. On the marriage of J. O. leasehold property was settled on him for life, and after his death to secure £100 a year, by way of jointure, to his wife for life, and subject thereto to the use of the heirs male of their bodies, with liberty for J. O. to raise by deed, mortgage, or other writing, £1,000 to be applied to any purpose he should please, but not to be raised by sale. J. O. assigned his interest in the leasehold property and the £1,000 to H. for securing a debt, and became bankrupt. The bankrupt's interest was sold under an order in bankruptcy made on the petition of H. to S., who, upon the death of the bankrupt, the purchaser, filed a bill against the quasi tenant in tail, the widow of the bankrupt, and the surviving trustee of the settlement, in whom the legal estate was vested, for the purpose of raising the sum of £1,000 by sale of the leasehold property :Held, that an inquiry, directed upon the hearing of the cause, as to what was the annual value of the property, and the value of the life interest of the bankrupt therein, at the time of the sale, was an immaterial

inquiry, and had no reference to what was to be adjudicated upon between the parties to the cause. Simpson v. O'Sullivan, 7 Cl. & F. 550; West, 337.

Surplus after Sale of Mortgaged Property -Inquiry as to who Entitled.]-Where there was a clear surplus fund in court, which had been produced by a sale under a decree in a foreclosure cause, the court, on motion of the plaintiff, who was also a creditor, by judgment subsequent to his mortgage, granted a reference to the remembrancer, to inquire and report who was entitled to the surplus, and whether the applicant had any and what lien upon it; and if so, whether there was any and what prior lien thereon. Mackay v. Martins, 1 Ir. Eq. R. 331.

Fraud-Unfounded Allegation.]-Where a person, who was a necessary party to a conveyance, though he had no beneficial interest in the property, refused to execute the deed of conveyance, and in his answer to a bill filed against him to compel the execution of the

(h) Other Matters of Inquiry. deed, set up as the ground of his refusal a case of fraud to the plaintiff, which he did not attempt to support by any evidence at the hearing-Held, that this was not a case for any inquiry as to the alleged fraud, and that the defendant must pay the costs of the suit. Times v. Negus, 3 Y. & Coll. 90.

Imputation—Inquiry as to Negligence not directed.]-A bill founded on an imputation of fraud and personal corruption will not warrant an inquiry, on that case being disproved, whether there has not been neglect or an omission of duty. Ferraby v. Hobson, 2 Ph. 255; 16 L. J., Ch. 499.

Filing Bill.]-By an indenture, dated in Inquiry to Obviate Effect of Delay in April, 1810, an annuity was granted to S. charged upon real estate; and by an indenture dated in April, 1820, the same property was charged by the same parties with an annuity payable to A. This annuity was void for want of a proper memorial, but until the filing of the bill it had been always treated as a valid annuity; and in September, 1821, A., under a proviso in his annuity deed, entered into possession and receipt of the rents and profits possession of them till his death, in 1829, of the estate, and remained in undisturbed when his personal representative took possession. In 1835 S. died, and in November, 1839, his personal representative filed a bill to set aside A.'s annuity and to establish his own. The bill alleged that S. had received payment of his annuity down to October, 1820, and that A. had obtained possession of the premises under misrepresentation. These allegations, however, were not proved against A., nor was it proved that he had ever had notice of S.'s title, but the allegation of payment was admitted by the grantors of the annuity, who were co-defendants with A. in the suit. Under these circumstances, and S. considering that had never been in possession of the property :-Held, that he was not, in consequence of the admissions of A.'s co-defendants, entitled to any inquiry as against A. with a view to obviate the effect of delay in filing the bill. Searle v. Colt, 1 Y. & Coll. C. C. 36.

Mesne Rates-Inquiry as to.]-The court, having continued an injunction to the hearing,

on

the terms of the plaintiff entering into security by recognisance for mesne rates, made an order, as in the cause, after the bill had been dismissed at the hearing, referring it

to

the Master to inquire and report the amount which the plaintiff was liable to pay for mesne rates, so as to enable the defendant to obtain an order on the plaintiff to pay the sum due, and in default of payment to put the recognisance in suit. Callaghan v. Callaghan, 4 Ir. Eq. R. 441.

Fees to Commissioners for Examination of Witnesses.]-Commissioners for the examination of witnesses restrained from prosecuting an action at law for the recovery of their fees, and a reference made to the Master to ascertain what was due to them. Ambrose V. Dunmow Union, 8 Beav. 43.

an

Maintenance for Infant Inquiry at Hearing.]-In an administration suit inquiry as to the propriety of maintenance to an infant may be directed by the decree at the hearing. Cross v. Beavan, 2 Sim. (N.S.) 53; 20 L. J., Ch. 560; 15 Jur. 663.

Inquiry as to Advances to Children by Intestate.]—In administering the estate of an

intestate who has made advances to his children in his lifetime, the inquiry as to advances should follow the words of the Statute of Distributions. Ennis, In re, Waterton v. Ennis, 43 L. T. 748; 28 W. R. 885.

Infants' Shares exceeding £300-General Reference to Chambers.]-A general order for reference to chambers granted, although infants' several shares exceeded £300. Winkworth v. Winkworth, 1 N. R. 6.

i. Preliminary Inquiries.

When Directed.]-The court will not direct preliminary inquiries to be made under the 5th Order of May, 1839, unless it is plain that they would be directed at the hearing, and would be binding on the parties to the suit. Meinhertzhagen v. Davis, 10 Sim. 289; 3 Jur. 1025.

A preliminary inquiry may be directed, under the 5th Order of May 9, 1839, where the evidence upon the answer is a sufficient foundation for the order, but not where, if the cause were heard upon that evidence, the bill would be dismissed. Topham v. Lightbody, 1 Hare, 289. Withey v. Mangles, 4 Jur. 923. Hicks v. Shells, 4 Jur. 858.

Inquiries Not to Prejudge Cause.]-The 5th Order of May, 1839, merely enables the court to direct such inquiries as must be made prior to the discussion of the question in the cause, but not to prejudice or decide that question; therefore, where a bill is filed for an account, the court will not, under the 5th Order, direct the account to be taken. Lee v. Shaw, 10 Sim. 369; 9 L. J., Ch. 39; 4 Jur. 102. Curd v. Curd. 2 Hare, 116; 7 Jur. 104. Price v. Cooper, 1 W. R. 206, 376.

Inquiries Dependent on Construction.]-A motion for inquiries, as preliminary, under | the 5th Order of May 9, 1839, was refused, where the necessity of the inquiries would depend upon a certain effect being given to a will of difficult construction. Breeze V. English, 2 Hare, 118.

Substantial Equity of Bill Denied.]-When the substantial equity of a plaintiff's bill is denied by the answer, the court will not, on motion, direct the preliminary inquiry under the 5th General Order of May, 1839. A bill was filed to set aside a voluntary settlement on the ground of the insolvency of the settlor, the insolvency being denied by the answer. The court declined ordering, on motion, the

V.

1 Y. & Coll. C. C. 133; 6 Jur. 725.

Claim to Trust Fund by Assignee-Inquiry as to Assignment.]--Bill by assignee of a trust fund to obtain payment. The trustees having stated they were ignorant as to the execution of the assignment, the plaintiff moved, under the 5th General Order of May 9, 1839, for a preliminary inquiry as to that fact-Held, that the case was not within the Order. Frost v. Hamilton, 4 Beav. 33.

Legatee not Answering Description.]—A bill was filed for payment of a legacy, but it appeared from the answer that the plaintiff did not correctly answer the description of the legatee contained in the will. The court refused to direct a preliminary inquiry under Wilson V. the 5th Order of May 9, 1839. Applegarth, 10 Sim. 657.

Material Document not Produced Inquiry.]-Circumstances under which the court will, before making any other decree in the cause, direct an inquiry with respect to a document which is insisted upon as affecting the interest of the parties in the matter in question, but is not produced. Hart v. Hart, 1 Hare, 1; 11 L. J., Ch. 9; 5 Jur. 1007.

Some Defendants Out of Jurisdiction.]— Order for preliminary inquiries, under the 5th Order of May 9, 1839, refused, where some of the defendants, suggested to be out of the jurisdiction, had not appeared. Barrett v. Buck, 2 Hare, 520. Darbishire v. Horne, 19 L. J., Ch. 458; 14 Jur. 969.

Order for Inquiries-Subsequent Order for Inspection.]-An order was made directing preliminary inquiries, and for the production of the necessary papers; subsequently, an order was made for an inspection of all papers in the defendant's possession at his solicitor's office-Held, that the latter did not supersede the former, and that the Master might

(c) PROCEEDINGS UNDER JUDGMENTS still order a production in the course of the inquiries directed. Whicker v. Hume, 9 Beav. 418.

Next of Kin-Plaintiff's Title Denied in Answer.]-A preliminary inquiry under the 5th General Order of May, 1839, as to who was next of kin, was refused, where the plaintiff sued in his right of next of kin; but it was denied by the answer that he filled that character. Kinshela v. Lee, 7 Beav. 300.

Creditor's Suit Plaintiff Creditor and Administrator.]-The court refused to direct preliminary inquiries under the 5th Order of May 9, 1839, in a creditor's suit, where the plaintiff was both creditor and administrator of the intestate, and the bill was filed against the infant heir-at-law, and sought to charge the real estate with the debts which the insufficient to personal estate Leaden v. Lewin, 4 Hare, 634.

was

pay.

Plantation Estate Fund in Court-Payment of Rent.]-Where the executor and trustee of A., entitled to a moiety of a plantation estate, obtained a lease from B. and C., entitled to the other moiety, and died before the lease expired, and upon a suit instituted in this country receivers were appointed abroad, and the proceeds consigned to merchant here, who paid the proceeds into court; the court, upon petition by B. and C. for payment of the rent due to them out of the fund in court, granted a preliminary inquiry, with a view to granting the prayer of the petition. Neate v. Pink, 15 Sim. 450.

Death of Plaintiff before Report-Supplemental Suit.] Preliminary inquiries had been directed under the General Order of May 9, 1839; the sole plaintiff died before the report, and before decree :-Held, that a defendant might file a supplemental bill to have the benefit of these inquiries. Upjohn v. Upjohn, 4 Beav. 246; 10 L. J., Ch. 328.

1. Writ of Inquiry. See INQUIRY, WRIT FOR.

C. PROCEEDINGS UNDER JUDGMENTS OR ORDERS.

1. PARTIES ATTENDING.

See Rules of Supreme Court, 1883-1898, Ord. XVI. rr. 40, 41; Ord. LV. rr. 40-43; Annual Practice; and Seton.

Conduct of Proceedings.]-The question, who is to have the conduct of the proceedings, will be decided in chambers, as well where the proceedings are in two causes as where they are in one cause. Stone v. Van Heythuysen, 18 Jur. 344.

Necessary Parties.]-Only those persons who, under the practice prior to 15 & 16 Vict. c. 86, were necessary parties to a suit before decree, can, on being served with notice of the decree, obtain leave to attend the proceedings by an order of course. Colyer v. Colyer, 9 Jur. (N.s.) 294; 1 N. R. 385.

Persons not Parties accepting Report.]Persons not parties to a cause, but who have obtained leave to attend the proceedings in the

1. Parties Attending. Master's office, if they wish to accept the report, must present a petition, stating their objections, and praying for leave to accept. Taylor v. D'Egville, 7 Sim. 445.

Parties Numerous-Exclusion.]-In a case where the parties were very numerous and the expenses of attending taking the accounts very great, an application, after decree, to exclude a number of parties interested in the residue from attending the taking such accounts and the further proceedings, except at their own expense, was refused. Day v. Croft, 14 Beav. 29; 20 L. J., Ch. 423.

to

Liberty to Attend-Costs.]-To entitle a person interested in an administration action the costs of attending proceedings in chambers under the decree he must attend by special leave of the judge, and if he attends under the common order of course and without special leave, he may be ordered to pay, in addition to his own costs, the extra costs occasioned by his attendance. Sharp v. Lush, 48 L. J., Ch. 231; 10 Ch. D. 468; 27 W. R. 528.

Mere liberty to attend the proceedings under an administration judgment does not entitle the parties having the liberty to the costs of

their attendance in chambers as a matter of course. In order to entitle such parties to such costs the order giving the liberty to attend should expressly provide that they are to be entitled thereto. And see R. S. C., 1883, Ord. LV. r. 42.

Persons in Same Interest.]-In an administration suit by a residuary legatee, other residuary legatees served with notice of the decree, and having liberty to attend the proceedings, will not be allowed their costs of attending the taking of the accounts in chambers, unless the plaintiff and the accounting defendant employ the same solicitor, and in that case will be allowed one set of costs between them. Taylor's Estate, In Daubney v. Leake, 35 L. J., Ch. 347; L. R. 1 Eq. 495; 14 W. R. 413.

Te,

Investment of Trust Fund.]-The trustee of a fund, directed to be invested in Government or real securities, entitled beneficially for life, with contingent remainder to his children born and to be born, with remainders over, and having three children :-Held, entitled to attend a reference to the Master upon a proposed investment on a mortgage. Davis v. Combermere (Lord), 14 Sim. 402; 14 L. J., Ch. 171; 9 Jur. 76.

And a party so entitled may move forthwith to reverse a decision against him, without waiting to except to the report. Ib.

After

Third Party - Proof of Deed.] decretal order, third party coming into Master's office by consent pro interesse suo, and then requiring strict proof of a deed previously admitted, may, it seems, have an inquiry, and put the parties to strict proof, but at the peril of costs if deed be finally proved as admitted. Booth v. Purser, 1 Ir. Eq. R. 40.

Judgment Creditors-Leave to Prove.]— After the report, and final decree in the cause, the court will permit, at the instance of the party having the carriage of the cause,