(1) At the hearing: (2) On motion before the hearing but after the answer: (3) On motion before answer. The practice of allowing this inquiry to be directed on motion was introduced by Lord Thurlow. (u) § 1324. (1) Where an inquiry as to title alone was directed at the hearing, it was taken as excluding all other questions but that of title, so that the court would not, on further consideration, enter into any other question set up as a defense by the answer. (v) § 1325. (2) The inquiry might be directed before the hearing where, the defendant having answered, there was no other question on the record but that of title, or where, there being some other question, the objection on that score was removed by consent. (w) § 1326. Where other questions were raised, but the court, on looking into the defendant's answer, saw that they were merely frivolous and entirely unworthy of argument, it would treat them as no questions at all, and direct the inquiry as if they had not been raised.(x) § 1327. Unless, however, the other question raised by the answer were merely frivolous, even though the defendant's contention might be such as the court judged unlikely to succeed, an inquiry before the hearing-which was in one case described by Leach, V. C., as "in its nature an extraordinary indulgence to the plaintiff, out of the common course of proceedings," (y)—was not granted. (2) § 1328. Accordingly, such references were refused in the following cases-where there was a claim for compensation, (a) even though the defendant submitted to complete his contract ;(b) where a purchaser insisted on laches as a defense; (c) where there was a question as to the production of a lessor's title ;(d) and where there was a question whether there was any subsisting contract. (e) "The rule was quite obstinate," said Lord Eldon in the last-cited (u) 1 Sw., 551 n.; Anon. v. Skelton, 1 V. & B., 517; Eldridge v. Porter, 14 Ves., 139; Cons. Ord. XX. See also Briscoe v. Brett, 2 V. & B., 377. (v) Le Grand v. Whitehead, 1 Russ., 309; cf. Hood v Oglander, 34 Beav., 513. (w) Blyth v. Elmhirst, 1 V. & B. 1; Paton v. Rogers, 1 V. & B. 351; Moss v. Matthews, 3 Ves., 279; Wright v. Bond, 11 Ves., 39. (x) Withy v. Cottle, T. & R., 78; Boehm v. Wood, 1 J. & W., 419; Boyes v. Liddell, 1 Y. (2) Withy v. Cottle, 1 S. & S., 174; Gordon v. Ball, 1 S & S., 178; Portman v. Mill, 2 Russ., 570. (a) Paton v. Rogers, 1 V. & B., 351. case, "that a reference of title cannot be had except in a case where there is no question but of title; and this must be the rule; for otherwise, we should fall into the absurdity of having the master's report upon a title, and a subsequent decision that there is no subsisting agreement." (f) § 1329. By questions of title are meant those which can only become properly the subject of adjudication upon the investigation of the title, although they may not arise on the abstract taken by itself; so that where, the validity of the conditions of sale being admitted, the question was as to the application of them, the question was held to be one of title.(g) § 1330. Where the circumstances were such as, on the principle already stated, to justify this inquiry on motion, the Court of Chancery would make it on such an application, even though the question in dispute might be one which could be conveniently disposed of at the hearing without a reference. (h) § 1331. In one case, where the defendants by their answer set up inability on the part of the plaintiff to make a title, and further that he has not done so within a period specified by the contract for that purpose, and had also delivered a notice to rescind the contract, Turner and Knight Bruce, L. J. J., affirming the decision of Stewart, V. C., held that the defendants were not entitled to move, before the hearing, for a reference as to title according to the contract, and when first shown, without prejudice to any question in the cause. Turner, L. J., expressed a doubt whether defendants could ever so move successfully.(i) § 1332, (3) An inquiry as to title might also be made on motion before answer, where the vendor, being plaintiff, undertook to do all such acts for the purpose of executing what the court should think right, as if the answer had been put in,(j) and it being admitted at the bar that there was no other question than that of title.(k) Where such an admission was not made, the motion was refused. (7) Nevertheless in one case Shadwell, V. C., held that, after such a reference, the defendant might by his answer, which (f) 2 Mer., 140. (g) Machu, 5 Ha., 158, 161. (h) Curling v. Flight, 5 Ha., 248. (i) Reed v. Don Pedro North Del Rey Gold Mining Co., Limited, 3 De G. J. & S., 593, 595. (j) Balmanno v. Lumley, 1 V. &. B. 224. was called for by the plaintiff, make any defense he pleased, and was not confined to the question of title. (m) "It does not appear," said the Vice Chancellor, "on the face of the order of reference, that the defendant did not object to the order being made, or that he said that there was no objection as to title."(n) It would seem from this that the order should have been prefaced with such a declaration. § 1333. In the case of Phillipson v. Gibbon, (o) the propriety of the vendor taking the earliest possible opportunity of obtaining the reference, where only title is in question, was plainly intimated by James, L. J. "In almost every case," said his Lordship, "It is the duty of a vendor, where there is no question but that of title between him and the purchaser, to avail himself of the opportunity of having an immediate reference as to title and so saving a multiplication of unnecessary costs.(p) § 1334. The inquiry as to title is now, it is conceived, obtainable either under Ord. XXXIII., which provides that "the court or a judge may, at any stage(q) of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner;" (r) or, in an appropriate case, under the eleventh rule of Order XL., providing that "any party to an action may, at any stage thereof, apply to the court or a judge for such order as he may, upon any admission(s) of facts in the pleadings, be entitled to, without waiting for the determination of any other question between the parties. * * * Any such application may be made by motion, so soon as the right of the party applying to the relief claimed has appeared from the pleadings. The court or a judge may, on any such application, give such relief, subject to such terms, if any, as such court or judge may think fit." (t) § 1335. The order for reference is not strictly confined to an inquiry whether a good title can be made, but may (p) L. R. 6 Ch., 435. (r) Compare Consol. Ord. XX., and see Ord. I. r. 3; also Ord. XXXVI. r. 6. (8) See Symonds v. Jenkins, 24 W. R., 512. (t) The Judge of first instance has a discre (4) For form of judgment where the inquiry tion as to making or refusing an order under is directed, see Seaton, 1287. this rule. Mellor v. Sidebottom, 5 Ch. D., 343 (C. A.) extend to everything that appears to be connected with the title. (u) It should therefore include an inquiry as to the time at which a good title was shown, (v) unless for some reason stated at the time-e. g., that the contract itself, (w) or the plaintiff's right to specific performance, (x) has been disputed-and by the express direction of the court, this inquiry was omitted. (y) As this inquiry, if to be made at all, should be directed at the original reference, the court has refused to direct it subsequently on a second motion. (z) § 1336. On the same principle, the inquiry may extend to whether it appeared by the abstract that a good title could be made :(a) and on the like ground, an inquiry was in one case added whether the defendant objected at any time to the want of evidence as to the identity of the premises; but an inquiry whether the abstract was perfect, and if deficient, in what respects, and whether it was ever perfected, was considered to be not so connected with the title as to be added to the reference.(b) § 1337. The inquiry may be limited in any manner appropriate to the circumstances of the particular case, as, for instance, by directing that regard is to be had to, or that the inquiry is to be made subject to, specified requisitions or declarations. (c) § 1338. In Harnett v. Baker, (d) the court (Malins, V. C.), having come to the conclusion that a condition of sale restrictive of the title was not binding on the purchaser, on the ground that it was founded on an erroneous statement of facts which the vendor was bound to know was erroneous, held that the vendor (plaintiff) must either take an open reference of this title (which he refused), or have his bill dismissed with costs. § 1339. The inquiry is whether the vendor can make a good title, not whether he could do so at the date of the contract; and therefore, when one of the inquiry has been practice on this point was somewhat variable. Moss v. Matthews, 3 Ves, 279; Gibson Clarke, 2 V. & B., 103 (z) Hyde v. Wroughton, 3 Mad., 279. (a) Wright v. Bond, 11 Ves., 39; Horniblow v. Shirley, Seaton, 1298; Jennings v. Hopton, 1 Mad., 211. (b) Bennett v. Rees, 1 Ke., 405, 408-9. (c) Saul v. Bolton, Seton, 1297; Remnant v. Holt, Id., 1298; Hume v Pocock, L. R. 1 Eq., 423, 431, 1 Ch, 377; and supra, §§ 1298, 2299. (d) L. R. 20 Eq., 50, 58. directed, (e) he may make out his title at any time before the certificate, and if he can do so he will be entitled to a judgment or order in his favor, (f) at least where there has been no unreasonable delay, and time is not material.(g) § 1340. The Court of Chancery often allowed time for the completion of the title: in an old case it more than once allowed the vendor time to get an act of Parliament;(h) and where upon the face of the contract it appeared that there was a difficulty in the plaintiff's title, Lord Hatherley (then Wood, V. C.,) refused on demurrer to stop a suit for specific performance, on the ground that the act of Parliament contemplated had not been obtained. (¿) So, in another case, the court allowed the vendor time to procure a small part of the estate ;() and, in another case, allowed a limited time to procure the concurrence of an assignee in insolvency.(k) § 1341. The court grants indulgence in point of time for getting over any difficulties in matters of conveyance, as much where the vendor is the plaintiff, as where the proceedings are instituted by the purchaser. (7) § 1342. But this indulgence will not be granted where the defect to be remedied was known to the vendor or his agent, and was concealed from the purchaser ;(m) nor where there has been great delay, and there is no probable chance of the difficulty being got over in a short time ;(n) so that a purchaser under the court would be discharged if it appeared requisite to his title that an account should first be taken in an action to be instituted, (o) or that an action should be instituted to try whether certain devisees were trustees for the seller or not.(p) § 1343. Nor will the court grant additional time where the vendor proposes, not to cure a defect in the title which he had at the sale, or to produce fresh evidence in support of it, but to get an entirely new title: for the court will not (e) Questions as to time and delay may, it is conceived, be properly raised on the application for the inquiry. (f) Bennet College v. Carey, 3 Bro. C. C., 390; per Lord Eldon in Jenkins v. Hiles, 6 Ves., 655, and in Seton v. Slade, 7 Ves., 279; Wynn v. Morgan, 7 Ves., 292, 315; Vancouver v. Bliss, 11 Ves., 458. g) Langford v. Pitt, 2 P. Wms., 629. Lord Stourton v. Meers, cited 2 P. Wms., 630. See also Lord Braybroke v. Inskip, 8 Ves., 417, 436; Coffin v. Cooper, 14 Ves., |