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[They cited Whitmore v. Green, (13 M. & W. 104); Lord Ashton v. Burke, (Longf. & T. 338); Jones v.- — (Hard. 111, 7 Bac. Ab. Trover.)]

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as in that case the sale was after the property ing no property whatever in the goods at the time vested in the assignee by assignment.] There is of the conversion. If that be the effect of the 48th nothing in Kelcey v. Minter about the assignment; section, a conversion has taken place, and the plainthe essential part of the action in trover is the pos- tiff must succeed. (Having read the section.) These session. [Crampton, J.-They were not the plain-words plainly mean the creditor issuing the exe tiff's property at the time of the conversion. cution. "No person shall, after the cominence. Perrin, J-According to your argument, at the ment of the imprisonment of such prisoner, avail time of the sale the right of action was vested in himself or herself of any execution." That cannot the insolvent, and there was then a conversion; is mean the sheriff. Taking the language of the legis there any clause transferring that right of action to lature, according to its literal interpretation, to mean the assignee ?] The 30th sec. of 3 & 4 Vic. c. 107, the plaintiff, the sense clearly is to prevent a pregives the assignee a power to recover. ference of creditors, and put the specialty and simple contract creditors on the same footing. This construction fulfils all the requisites of the act, and leaves the sheriff every necessary protection;-it would be unjust to deprive him of it, and the court can only effectuate that object by holding the acts of the sheriff to be lawful. No answer has been given to the objection that obvious injustice would be done by holding to the contrary. It was the duty of the sheriff to sell the property of the insol vent; he could make no return to the execution that the property was otherwise than in the insol vent; he could have no pretext for refusing to exe cute the writ. Is there to be any limit as to the date at which the debtor must file his petition? he need not do it for ten years, or at all, and in the meanwhile is nothing to be done? If compelled by the express words of the act to hold that it is so, we must. The authorities cited by the plaintiff are principally cases in bankruptcy, and whatever may be the policy of those decisions, it is now settled that the assignee has a title by relation; under the insolvent statutes there is no such title. Up to the time of the vesting order, the legal title to the property is in the insolvent. The case of Cooper v. Chitty, (1 Burr. 20), has no application to the present, and shews only, that after assign. ment a right in the bankrupt's property vests in the assignees from the date of act of bankruptcy. Two cases were strongly relied upon to shew that where the execution issues on a judgment on a bond and warrant of attorney, that the right is suspended from the time of the imprisonment, and that there fore the sheriff and execution creditor are equally liable. The first is Groves v. Cowham, (10 Bing. 5), the facts show that the creditor was in prison previously to the issuing the execution, and the as signment to the plaintiff was prior to the sale. In the other case-Kelcey v. Minter, (1 Scott. 616)— that was pressed upon the court, to shew the liability of the sheriff and the creditor, the language of Tyndal, C. J., was relied on to shew that the act of the sheriff was tortious. The report does not say when the sheriff's sale took place. We have considered it due to the importance of the case, to procure a copy of the pleadings; from which it appears that in this case, as in that of Groves v. Cowham, the property vested in the assignee before the conversion, and, consequently, does not apply to the case before us. If the sheriff's liability is co-extensive with that of the creditor, and that the creditor is not responsible, the sheriff incurs none, unless he acts after the property be

May 22, 23.-Mr. Lynch, Q. C., with Mr. J. Pennefather. The plaintiff's pleading precludes him from recovering. The allegation is, that up to the time of the vesting order, the goods were in the possession of the insolvent. The argument on the other side is founded on a mistake as to the law of bankruptcy and insolvency. In the former, the property vests in the assignee from the time of the act of bankruptcy. In Balme v. Hutton, (9 Bing. 471,) the actual property was in the assignee at the time of the seizure. The sheriff did not obey the exigency of the writ, for he took the goods of B. as if they were those of A. It is admitted there is no vesting by relation in insolvency. Woodland v. Fuller, (11 Ad. & El. 859); White v. Bartlett, (9 Bing. 378); Sims v. Simpson, (1 Bing. N. C. 313) [Blackburne, C. J.-The plaintiff's counsel do not go upon the question of relation; they allege the property to be in the assignee.] The case of Groves v. Cowham, (10 Bing. 5,) is an authority in our favour. Tyndal, C.J., who decided that case, presided in the Court of Error which decided Balme v. Hutton, (9 Bing. 471.) Notley v. Buck shews that the sheriff is liable, because he was in the same position with the execution creditor. Kelcey v. Minter shews that the sheriff is liable not only for the proceeds of the sale, but for the value of the goods. The party is in this dilemma-if they succeed at all, it must be by showing that the property is in the assignee, and they have averred the contrary. [They cited Garland v. Curlisle, (2 Cr. & Mee. 69); Barnard v. (1 Bing. N. C. 306.) Cur. ad vult.

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June 16.-BLACKBURNE, C.J. delivered the judgment of the court. [After stating the pleadings, and the facts as set out in the special verdict, he proceeded]-The court are of opinion that the plaintiff had no right to sue the sheriff. The cause of action stated in the declaration is the partial conversion of the property of the insolvent; the facts afford prima facie evidence that that was not so, because the vesting order was not made until after the sale by the sheriff; and as the insolvent himself could not sue, neither could his assignee. It is contended that, according to the true construction of the 48th section of the Insolvent Act, 3 & 4 Vic. c. 107, this sale was avoided, and that the act entitles the assignee to bring his action in this form. That construction would amount to this, that an action of trover is maintainable, not by the person whose property is converted, but by a person hav

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COURT OF CHANCERY.
MATURIN V. WILSON.-June, 20, 21.
Bill to remove temporary bars-Evidence of out-
standing leases-Form of prayer.

When a plaintiff by his bill states a legal title, and
shews the existence of outstanding terms, it is al-
most a matter of course for the Court to remove
temporary
bars, for the purpose of enabling him
to bring an ejectment. When the bill stated leases
and outstanding terms and the answer admitted a
belief of their existence, but ignorance as to where
they were, or by or to whom granted. Held to be
sufficient evidence of their existence to enable the
Court to grant relief.

to the said freehold estates, and to come to an account with the plaintiff of the rents and profits of the said estates, which were received by him or by any person for him since the death of the said Maria Wilson, and to pay the same to the plaintiff, and that the plaintiff might have the aid of the Court in order that he might assert his legal title to the said estates, and for that purpose that the defendant should be restrained from setting up on the trial of any issue to be directed by the Court, to try the validity of the said will, any outstanding terms to prevent the plaintiff from recovering at law, and for the purpose of having such issue tried as aforesaid, that all necessary directions might be given, the plaintiff offering to give every facility consistent with his title to have the question tried expeditiously and prayed general relief.

The defendant, by his answer, admitted the title of the testator; stated in respect to the leases, that none of them were in his hands, or in the possession of his agent; that he was unable to set forth by whom, and to whom, and at what rents the said

leases were granted; but he believed that the said
premises in the city of Dublin were underlet to
several tenants for their lives, renewable for ever;
and that the premises in the county of Antrim were
let to tenants for various terms.
peached the validity of the will.

The answer im

Mr. Brewster, Q.C., Mr. Martley, Q.C., and Mr. James C. Lowry for the plaintiff.

Charles Maturin, the plaintiff, filed his bill on the 4th of February, 1847, stating that Edmond Wilson, Esq. was, at the time of making his will, seized in fee of certain ground in the city of Dublin, on which several houses were erected, "subject to certain leases thereof which are still subsisting." That the said Edmond Wilson was also seized to him and his heirs of certain lands in the county of Antrim, held under leases for lives renewable for ever, and of other freehold premises. That the said Edmond Wilson duly made and published his last will in writing, dated the 29th day of June, 1839, and duly attested, and thereby devised all his property, both freehold and personal unto his wife, Maria Wilson, for the term of her natural life, and after her decease Mr.Whiteside, Q.C., Mr. McDonough, Q.C., and to the plaintiff. That the testator died in 1840, Mr. Sterne B. Millar for the defendant, contended without having revoked or altered his said will, leav- that the plaintiff had failed to make any case by his ing the said Maria Wilson, his widow, and the de- bill to entitle him to the relief prayed. This is an fendant, John Oldham Wilson, his heir at law, and that the said Maria Wilson died in 1845. The bill ejectment bill, and not the ordinary bill to remove stated that the whole or considerable portions of the has been made for such relief; no trust has been bars. The bill prays an issue; no case temporary freehold estates were held under leases granted by stated, and the court will not grant an issue unless the said testator previous to the execution of the a trust exists. There has been no evidence given said will, or by the persons through whom he derived of the existence of temporary bars; and the statesaid estates, for terms of years and for lives, several ment in the bill, and the vague admission in the of which leases are still subsisting. That he was unable to discover among the title deeds of said ficient. The plaintiff ought to have given proof of answer, in respect to outstanding leases, is not sufestates the counterparts of said leases, and therefore the existence of those leases or outstanding terms. was unable to state whether the whole, or what part The death of Maria Wilson has not been proved. of the said estates was in the possession of tenants, One witness says he believes she is dead, and this or what terms were outstanding, and in whom the witness is not a member of her family. [The fol same were vested. That by reason of the said out lowing cases were cited and commented on in sup. standing terms he was unable to proceed by eject-port of the arguments on this branch of the case: ment, and that the defendant would not consent to waive his right to set up at the trial of the ejectment these outstanding terms or temporary bars. That the title deeds of the said estates were in the possession of the said defendant, and that the defendant was also in possession of the estates, under an habere issued on a judgment in ejectment of the Queen's Bench, but he stated that the said will was not relied upon in that ejec ment, and that he was in no way bound by the said ejectment, to which he was not a party. The bill prayed that an issue might be directed to try whether the freehold estates of the said testator were well devised to the plaintiff, or descended to the defendant as the heir at law of the testator, and if it should be found that the said estates were well devised by the said will, then that the defendant might be directed to deliver up to the plaintiff all title deeds, leases and writings relating

Crow v. Tynell (3 Mad. 179); Jones v. Jones (3
Mer. 169); Blenerhasset v. Day (2 Ball and B.
127); Lord Fingal v. Blake (1 Mol. 116); Keogh
and F. 591); Short v. Lee (2 Jac. and W. 496);
v. Keogh (2 Mol. 92); O'Connor v. Malone (6 C.
Corporation of Arundell v. Holmes (4 Bea. 381.)]
It was also further contended that the plaintiff hav
assisted now Pike v. Hoare (1 Anst. 421); Lord
ing acquiesced in the former trial, ought not to be
Lorton v. Lord Kingston (5 C. and F. 343); and
that relief could be obtained at law, which was the
real property; therefore this court should not grant
proper tribunal to determine questions on wills of
an issue, on the trial of which, the defendant would
be placed in a less advantageous position, than in
an action of ejectment in a court of law.

(7 I. E. R. 560.)
Mr. Lowry in reply, cited Hamilton v. Lyster

LORD CHANCELLOR.—As to the removing of the temporary bars in this case, the only difficulty arises on the evidence of their existence; where they exist it is a matter of course for this court to give relief, unless the conduct of the plaintiff has been so improper as to afford ground for the court to refuse its aid. I have not heard anything that could lead me even to suppose that there is anything against conscience in Mr. Maturin setting up this will; and I think he is in no way implicated in the former action which has been tried. That was upon a different will. ested in that will being set

He was, in fact, interaside, and the plaintiff

was interested in its being established. That will gave her the absolute estate; while this will gives her but a life estate in the testator's property. I have been strongly urged to look into the merits of this case; but I do not think I am at all bound to do so, and on them I give no opinion, one way or the other. The question is simply this: is a devisee entitled to the assistance of this court, who files his bill, stating that he claims under a legal devise, and that he is hindered by the existence of temporary bars, or outstanding terms, from asserting his right in an action at law? I think it is a matter almost of course to give him this assistance. I do not think it is necessary for the plaintiff to bring his action of ejectment first, and then to come to this court; I think it is more convenient to come to this court first, to have the impediments removed, and then to bring his action. There is some difficulty here as to the evidence of the existence of temporary bars. I shall examine the evidence offered by the plaintiff. First, it is said, that there is no evidence of the death of the tenant for life. Now I think that is a question to be tried in the action; and for the proper trial of that action, the temporary bars must be removed; then the plaintiff must shew that the tenant for life is dead before he can make out his title. The bill states that there are leases and outstanding terms, and the answer admits that the defendant believes there are leases; but states he cannot set out the particulars; which shews that the leases were not made by him. I think the fair inference is, that they were made by the testator, or by some one under whom he derived the estates in question. The prayer is inaccurate; but I think it is substantially a prayer to have temporary bars removed. The case of Keogh v. Keogh is a very plain case. It seems it had been the practice to file bills praying for an issue, and that was improper where no trust existed; but even in that case the court removed temporary bars, by making that a part of the order dismissing the bill. I shall retain this bill until the plaintiff shall bring his ejectment, restraining the defendant from setting up temporary bars; but I shall reserve the question of costs for further directions.

"Let the bill be retained for twelve months, with liberty to the plaintiff to bring such action of ejectment as he may be advised, the defendant to be restrained from setting up any outstanding legal estate in bar of any such action. Reserve further directions and costs until after the trial of the said action, with liberty to the parties to apply as they may be advised.

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In this case, a conditional order for an attachment for non-payment of rent had been obtained by the receiver against G. D. Lynch, and this was a motion to shew cause. From the affidavit of Lynch it appeared that his father had been tenant of the lands for several years, and after his death his mother remained in possesssion as tenant until 1847, when she died. The affidavit stated that Lynch derived no benefit from the lands; that he never paid any rent, or was served with any order to pay rent, and that he endeavoured to turn said lands to the best use for the benefit of his family, as a trustee for them.

From the receiver's affidavit it appeared that since his appointment in 1837, he had frequently received rent from said G. D. Lynch.

Mr. O'Hea, for G. D. Lynch, contended that Lynch was not liable as a tenant to an attachment, as he had not been served with any order to pay rent to the receiver.

Mr. Leahy, contra.-This case comes within the rule laid down in Southwell v. Armstrong, (1 Cr. & Dix. E. R. 603,) (S. C., 1 I. E. R. 32,) where it was held, that if a receiver on his appointment serve the order to pay rent upon all the tenants, a party who subsequently becomes a tenant in the place of one who has been served, may be attached for non-payment of rent, without any further service of the order.

MASTER OF THE ROLLS.-I will follow that case of Southwell v. Armstrong, which I think is rightly decided; for where a tenant has been served with the order to pay rent, and another person afterwards comes into possession, I do not think it necessary that the successor should also be served; and as this person has been in possession of the property, and taken upon himself the management of it, I will disallow the cause shewn, with costs. Lib. 284, fo. 99.

ALSTON V. ALCOCK-April, 27th. Practice Minor matter-Motion for reduction of rent.

Mr. Burke moved for a reduction of rent.

Mr. Berwick, Q. C. for the receiver.This being a minor matter this application is quite unnecessary.

The Master has authority to make the order re- have the benefit of same, and that certain lands iu quired.

Mr. Foley appeared for the inheritor.

THE MASTER OF THE ROLLS said that in this case he would have no difficulty in granting a reference, but the motion was unnecessary; he would, however, allow the motion to stand over until an application was made to the Master.

HARVEY V. LAWLER.-April 28. Practice-Promissory note-Purchase. Mr. Lawless moved to make a consent a rule of court. The consent was, that the National Bank, the purchasers of part of the lands sold under the decree in this cause, might be at liberty, with the privity of the Accountant-general, to lodge in the Bank of Ireland, to the credit of this cause, the promissory note of C. Fitzsimon, one of the public officers of said bank, for the sum of £200-onefourth of the purchase money of said lands; and also a promissory note for £600, the residue of said purchase money. There was a sufficient sum lodged in court to pay all the incumbrances, except about £200, and the consent that his promissory note be taken, was signed by all the parties having any interest in the matter.

MASTER OF THE ROLLS. I will not allow parties on consent to vary the practice of the court; it may create the greatest embarrassment. I will make no rule on the motion.

ROBERT J. WEIR, Petitioner, J. ORMSBY,
Respondent.
WILLIAM WEIR, Petitioner, SAME, Respondent.
April, 28th.

Receiver-Continuing proceedings-Judgment

Acts.

The Court has authority to permit the assignee of a judgment creditor to continue proceedings in his own name; but where the original proceedings have been taken by a trustee, and an assignment has thus been rendered necessary, the Court will not give the costs of the motion to continue. In this case, W. Weir, the petitioner in the second matter, together with the respondent, and as a surety for him, executed a joint and several bond to one K. D. Lloyd, to secure the sum of £1200, upon which judgments were entered. Lloyd having required payment, W. Weir was compelled to pay the amount, and thereupon the judgment was assigned to R. J. Weir, as a trustee for said W. Weir. On the 11th of January, 1848, a petition was presented by said R. J. Weir, and a receiver appointed over part of the lands of the respondent. R. J. Weir being in declining health, at the request of W. Weir, by indenture of the 22nd day of January, 1849, assigned said judgment to W. Weir. Shortly afterwards, R. J. Weir died.

Mr. W. D. Ferguson, on behalf of W. Weir, moved that the proceedings already had might stand and be revived and be continued for and in the name of the said W. Weir, and that he migh

the possession of the respondent might be let. In the case of Daly v. Blake, (10 I. E. R. 36,) an order was made similar to that which I now seek ; also in the Court of Exchequer.

MASTER OF THE ROLLS.-You may take an order to continue the proceedings, similar to that in Daly v. Blake; but I will not give any costs, for the petitioner might have proceeded without the intervention of a trustee, and these costs have been incurred entirely by his own act.

GUIRY v. O'LOUGHNANE-April, 29th. Practice-Examination-Notice-—Irregularity. The Court is not bound to suppress depositions in all cases of irregularity, and where by accident the defendant's solicitor gave but two days' notice of examining a witness, instead of four, as required by the 87th general order, the Court permitted the depositions to stand, with liberty to the plaintiff to cross-examine the witness.

The bill in this cause was filed to restrain the defendant from issuing execution on foot of a judgment, and to set aside some deeds, as being fraudulent and void. The replication was filed on the 6th of January, 1849, and was served on the 8th. The rule to pass publication with a week's respite, was entered on the 13th of April, and was served on the 14th. On the 18th of April, notice was served on behalf of the defendant, of his intention to examine a witness named J. Fahey, who was examined on the 20th; publication passed on the 23rd of April. This was an application on behalf of the plaintiff, that the deposition of J. Fahey be suppressed, on the ground that same was taken irregularly, and contrary to the general order of the Court, and notice pursuant to the 87th general order had not been served four days before the examination of said witness, and publication had passed before the time for his examination had regularly arrived. From the affidavit of the defendant's solicitor, it appeared that the bill was filed for an injunction to set aside certain deeds, as being fraudulent; that J. Fahey was the only witness examined on behalf of the defendants, and he was subscribing witness to the execution of the deeds which were sought to be set aside. The affidavit also stated, that the defendant's solicitor was unacquainted with the residence of the said J. Fahey, which was not discovered until late on the 17th of April, and notice of his name as a witness was transmitted to plaintiff's solicitor on the 18th; and that up to the time of making the affidavit, defendant's solicitor had not read, nor did he know what evidence Fahey had given.

Mr. Hughes, Q. C., and Mr. Murphy, for the plaintiff. Four clear days are given by the general order, for the purpose of enabling the other party to ascertain who the witnesses are, where they reside, and to prepare for their crossexamination. In the present case, no opportunity was given for inquiry or cross-examination, and the depositions of this witness ought to suppressed.

be

Mr. Lynch, Q.C., and Mr. Sherlock, contra.→→→

The defendant served notice of the name of this witness as soon as he was able to discover where he resided. It is not imperative on the Court to suppress depositions in every case of irregularity. Attorney-General v. Ball, (9 I. E. R. 463, 2 Dan. Ch. Practice, 580.)

MASTER OF THE ROLLS.-The 87th general order is quite distinct in its terms, and under it "The notice of witnesses intended to be examined shall describe the witnesses by name, place of residence, and addition, and before whom the witnesses are to be examined, and such notice shall,

in all cases where a witness is to be examined before the examiner in Dublin, be duly served four days, &c., before the examination of the witnesses shall be commenced." Nothing can be more precise. In the present case there has been an irregularity, which appears, however, to have been accidental. The notice was served on the 18th of April, and the witness was examined on the 20th, and publication passed on the 23rd, clearly in violation of the rule, the object of which was, to give time for inquiry. The case nearest to the present is that of Cholmondeley v. Clinton, (2 Mer. 81,) where, however, no notice was served, which makes it somewhat stronger than the present case; and the Chancellor, Lord Eldon, gave the defendant the option, either of permitting the plaintiff to re-examine the same witnesses, or of allowing the depositions to stand, with liberty to crossexamine the witnesses; and I will follow the course adopted in that case.

occurred subsequently to the filing of the bill, the Court will grant the application. (3 Dan. C.P.386.) Mr. W. Smith, Am. Cur., mentioned the case of Beale v. Jacob, where Sir E. Sugden granted a writ of Ne exeat in chamber, and held that the bill need not pray the writ in that case. There, however, the matter on which the application was grounded arose subsequently to the filing of the bill. THE MASTER OF THE ROLLS made the order.

VANCE v. RANFURLEY.-June 8th.

Practice-Amendment - Under 49th general order, striking out plaintiff not allowed.

Mr. Trevor applied that the deputy Keeper of the Rolls might be directed to amend the bill of revivor filed in this cause, by striking out the names of two of the co-plaintiff's, and making them defendants, and introducing amendments to make the bill a bill of revivor and supplement. There had been no answer, and no order to revive; the officer had declined to make the amendments required, as it had not been the practice to strike out plaintiffs by amendments under the 49th rule. Counsel contended, that under the terms of the 49th order, which provides" that the plaintiff, until an answer, plea, or demurrer shall be filed, shall be at liberty to amend the bill as often as he may be advised, without any rule or order for that purpose." In any case where the Court would allow the amend ments to be made, the plaintiff, under the 49th order, might before answer make the amendments "The Court having offered to the plaintiff the necessary; and in order to shew that the Court option of suppressing the depositions of J. would allow the amendments required, he cited the Fahey, giving the defendant liberty to recase of Smith v. Walsh, (1 I. E. R. 167,) where a examine said J. Fahey, or permitting the de- bill was filed by a widow to raise the arrears of a positions to stand, with liberty to plaintiff to jointure charged on lands by her marriage settlecross-examine, let said depositions stand, and let ment. The defendant having by answer denied plaintiff be at liberty to cross-examine the said the husband's power to jointure, alleging that the J. Fahey, and let such cross-examination close husband was only tenant in tail, and that the estate within one week, and let the defendants pro-tail had not been barred; an amended bill was then duce said J. Fahey for cross-examination, and filed, praying for dower in case the plaintiff was give 24 hours' notice thereof, and let defend-not entitled to jointure. ant pay plaintiff £5 for his costs of this motion."

Lib. 284, fo. 373.

MURDOCK V. MURDOCK.-May, 15th. Writ of Ne exeat granted-Not prayed by Bill. Where a defendant's intention to go abroad arises or is first discovered in the course of a cause, a writ of Ne exeat will be granted, although it is not prayed by the bill.

The bill in this case was filed to administer the assets of Robert Martin, deceased, and prayed for an account. The defendant had been served in Scotland with a subpoena to appear and answer; but although the time had expired, no appearance had been entered. From the plaintiff's affidavit it appeared, that, on the day before the application, the defendant went to Belfast, and there stated that it was his intention to return to Scotland forthwith. Mr. Gibbon now moved for a writ of Ne exeat. The bill does not pray for the writ, but where the matter on which the application is grounded has

The defendant neither answered nor appeared at the hearing, and the Court decreed the plaintiff entitled to dower, and directed an account of the arrears. This amended bill was held to be in continuation of the original suit. The alteration made in that case was much greater than what is required in the present case; also in the case of Ring v. Nettles (3 I.E.R. 53), after the defendants had answered in a suit by husband and wife, relating to the wife's separate estate, leave was given to amend the bill, by striking out the husband's name as a co-plaintiff, as he had become insolvent; and by substituting in his stead a party to sue as next friend of the wife; and also by inserting the names of the husband and his assignee as defendants The amend ments should be inserted in the bill of revivor. (White on Supplement and revivor, 104.)

The MASTER of the ROLLS said, that the Depoty Keeper of the Rolls had communicated with him on the subject of this case, and stated that it was not the practice to amend a bill by striking out plaintiffs under the 49th general order, as there was a side-bar rule enabling plaintiffs to dismiss the bill with costs against them; and that he would follow

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