1844. BELCHER v. WHITMORE. there was therefore, under that state of circumstances, no reason for asking for these enquiries; Topham v. Lightbody (a), Frost v. Hamilton. (b) Mr. Turner and Mr. Freeling in the same interest. Edward Whitmore was solvent in 1835, and the invalidity of the assignment has not yet been established. The settlement was made by Edward Whitmore, the elder, in contemplation of a second marriage, and so far as relates to Mrs. Halsey, it was supported by a valuable consideration, and was not voluntary. The Plaintiffs, therefore, cannot ask for enquiries respecting the persons entitled under her marriage settlement, and have made no prima facie case to support their claim against it. Mr. Purvis, in reply. The Plaintiffs have, specifically, by their bill, stated debts existing in 1835 and at the time of the bankruptcy, shewing that the firm was insolvent in 1835: they are not denied. This then is a prima facie case. Independently however of that, where a class of persons Is interested, the Court requires that the preliminary enquiries should be made before it will determine any question relating to the property claimed by the class. Convenience requires that this should be done before the hearing, to prevent the cause then standing over; and this was the very object of this general order. The MASTER of the ROLLS. The Order referred to was made for the purpose of accelerating a cause, and to give the Plaintiffs an opportunity tunity of shewing, at the first hearing, that the proper parties were before the Court. In that respect the Order has been effectual. The Court, however, will not direct preliminary enquiries, unless it be plain that they will serve some useful purpose, nor will the reference be made when the Plaintiffs shew no right to them. The Plaintiffs in the present case claim to set aside a deed, on the ground that the assignor was insolvent at the time of its execution. This is the question to be litigated between the assignees and the persons claiming under the settlement, and can only be determined when all the facts are in evidence before the Court. The answer wholly denies the Plaintiffs' claim; and it cannot be known until the hearing whether the defence is sufficient to rebut the Plaintiffs' demand. At the hearing an enquiry would probably be asked, if the Plaintiffs then appeared to have a probable ground for relief, because the Plaintiffs could not have a decree against absent persons; but if the cause were before the Court upon evidence, and the Plaintiffs' right being denied, the evidence appeared satisfactory against the claim, the Defendants would at once ask that the bill might be dismissed, and if that were done, the enquiries would turn out perfectly useless. The Plaintiffs' case not being made out, and there being a direct denial by the Defendants of the Plaintiffs' title, the enquiries ought not to be directed, though they may hereafter turn out to be necessary. No order can therefore be made as to the preliminary enquiries, for with the denial in the answer, the Plaintiffs have not shewn such an interest as to entitle them to the 1844. BELCHER บ. WHITMORE. 1844. the reference. The costs must be reserved to the hearing. BELCHER v. WHITMORE. See Meinertzhagen v. Davis, 10 Sim. 289.; Lee v. Shaw, ib. 369.; Logan v. Baines, ib. 604.; Wilson v. Applegarth, ib. 657. April 17. A Plaintiff may set down a demurrer for argument, without waiting for the Defendant to enter it with the Registrar. Whether, since the Orders of 1841, it is necessary for a Defendant to enter a within eight days at all, quære. A Defend IN DALTON v. HAYTER. The De N this case, the Defendant filed a demurrer to the whole bill on the 21st of March 1844. fendant did not enter the same with the Registrar within eight days, and the Plaintiff applied to the Master of the Rolls, ex parte, for an order disallowing it as of course under Lord Clarendon's order. (a) This order is as follows: 66 Every demurrer shall express the several causes of demurrer, and shall be determined in open Court; and demurrer with such pleas also as are grounded upon the substance and the Registrar body of the matter, or extend to the jurisdiction of the Court, shall be determined in open Court, and for that purpose the Defendant is to enter the same with the ant neglected registrar within eight days after filing thereof, or in default of such entry made, the same shall be disallowed of course as put in for delay; and the Plaintiff may then take out process to enforce the Defendant to make a better answer, and pay 40s. costs; and the same shall not afterwards be admitted to be, set down or de to enter his demurrer with the Registrar within eight days, the Court refused to overrule it on that ground. (a) Beames' Ord. 173., Sanders' Ord. 298. bated, bated, unless upon motion it shall be ordered by the Court." (a) The MASTER of the ROLLS declined making the order at present, but allowed the Plaintiff " to set the demurrer down for argument" within the twelve days allowed by the 34th Order of August 1841. (b) This step to be, however, without prejudice to the Plaintiff's right to insist on the same objection when the demurrer was called on. 1844. DALTON v. HAYTER. The demurrer, having been regularly set down by the Plaintiff accordingly, now came on for argument, when, Mr. Wood insisted that it ought to be overruled, in consequence of the neglect of the Defendant to enter it with the Registrar. He argued that it was still necessary for a Defendant to enter a demurrer "with the Registrar:" that a Plaintiff could not set down a demurrer "for argument" until the Defendant had so entered it: and that the non-entry by a Defendant would render it impossible for the Plaintiff to comply with the exigency of the 34th Order of August 1841, and set it down for argument within the twelve days. That the Plaintiff would be greatly prejudiced if he were not allowed the benefit, to which, according to the strict practice of the Court, he was entitled. Mr. Kindersley and Mr. Beavan, contrà. The entry "with the Registrar" is a mere useless form, and is so considered by the officers of Court. It now consists merely of paying a shilling fee (c), and in no way ad (a) See Jordan v. Sawkins, 5 B. C. C. 372.; Bullock v. Edington, 1 Sim. 481.; Hearn v. Way, 6 Beav. 369. (b) Ord. Can. 174. vances 1844. DALTON v. HAYTER. vances the hearing of the demurrer, which depends on the order to set it down "for argument," which may be obtained by the Plaintiff, immediately on the demurrer being filed, and without waiting until it has been entered with the Registrar. The object of Lord Clarendon's order was this: formerly demurrers were referred to the Master, but by Lord Bacon's (a) and Lord Clarendon's (b) orders, they were directed to be determined by the Court, and for that purpose a duty was imposed on the Defendant to enter them with the Registrar. Now by Lord Cottenham's orders, a Plaintiff is bound to set the demurrer down for argument: this latter order has therefore superseded the former one, and the practice founded on it. The MASTER of the ROLLS. I am very much at a loss to understand the object for which this objection is made. Cases have occurred in which a Defendant seeing an objection plainly appearing on the bill, has, purposely, allowed the Plaintiff to proceed with his bill, in order to turn him round on that very objection at the hearing; whereas, if such Defendant had demurred, the Plaintiff, by submitting and amending his bill, might easily have removed the objection. I have seldom heard it said, that it is for the benefit of a Plaintiff to prevent the hearing of a demurrer, for if the bill is defective, it is greatly to the advantage of a Plaintiff to have the objection pointed out to him, if it be fatal it will save all further expense, and if it can be cured, the Plaintiff has an opportunity of removing the defect by amendment. (a) Beames' Ord. 22., and Sanders' Orders, 115. This (b) Beames' Orders, 173., Sanders' Orders, 298. and |