Cornish, J.

1. The petitioners are defendants in a suit for the removal of a bund which they are alleged to have wrongfully raised so as to divert water flowing into the plaintiffs tank. The plaint was filed on 22nd July 1932, and with it a petition for the appointment of a Commissioner to inspect the locality and to make a plan. Notice was ordered to go to the defendants and was made returnable on 23rd August 1932. The notice was actually served on defendants on 17th August 1932. In the meanwhile on 29th July 1932, a week after the first petition, the plaintiff put in another petition for the issue of a commission emergently, alleging that if the Court should pass orders after service of notice on the defendants it would cause delay, and that owing to the changes made by the rainfall the defendants would get the opportunity of including a certain channel in their lands.

2. The Court granted the petition and issued a warrant to the Commissioner returnable on 3rd August 1932. The Commissioner completed his inspection on 31st July 1932 and signed his report on 22nd August 1932. No notice was given to defendants of this second petition, nor was any notice given to them of the is