said Francisco de Lizardi & Co., belonging to the government of the said republic, and for the purpose of being disposed of as that government should from time to time direct; that at the time of the date of the letter annexed thereinafter mentioned, the said F. de Lizardi & Co. had in their hands the several papers and documents belonging to the said republic, or the government thereof, and also certain deferred bonds of the said government to the amount of 784,350l., and which 784,3501. deferred bonds, it had been expressly agreed, were not to be issued or put in circulation, and were in fact left in the hands of the said F. de Lizardi & Co. as such agents as aforesaid, all which said documents, papers, and deferred bonds as aforesaid, were then in the hands of the said firm of Francisco de Lizardi & Co. as the then agents of the said government. That the said republic, or the government of the republic, of Mexico, having reason to be dissatisfied with the conduct and mode of management of their business and affairs by the said Messrs. F. de Lizardi & Co., the Minister of Finance of the said republic (being duly authorized for that purpose by the supreme government), forwarded an order on the part of the said government, and sent letters to the said F. de Lizardi & Co. determining their said agency, and at the same time duly notified to the said lastlymentioned firm, that all funds and monies, together with all papers and documents in their hands, belonging to the said government, should be handed over to the plaintiffs, the said J. H. P. Schneider and H. W. Schneider, immediately; that, on the said 5th of April 1845, the Minister of Finance of the said republic (being duly authorized for that purpose by the government of the said republic as aforesaid) wrote and sent to the plaintiffs J. H. P. Schneider and H. W. Schneider a letter, dated the 5th of April 1845, by which those parties were appointed the agents in this country of the republic, and directed to receive from Messrs. F. de Lizardi & Co. the funds in their possession, and all papers and documents belonging to the republic.

The bill, after setting forth some correspondence between Messrs. Schneider and Messrs. F. de Lizardi & Co. stated, that a correspondence took place between the plaintiff, Thomas Murphy, on behalf of and as the

representative of the supreme government of Mexico, and the said firm of Schneider & Co., relative to a compromise of differences between the said F. de Lizardi & Co. and the Mexican government, and certain proceedings and arrangements which had been entered into respecting the same; that, on the 13th of April 1846 the said Messrs. F. de Lizardi & Co. wrote and sent to the plaintiffs, J. H. P. Schneider and H.W. Schneider, a letter of that date, and which was in the words and figures, or to the purport or effect following, that is to say :-" Austin Friars, 13th of April 1846.-Gentlemen,— We have to acknowledge the receipt on Saturday of your letter of the 9th inst., enclosing copy of a communication addressed to you by the Mexican minister, Don Thomas Murphy. In reply we beg reference to our letter of June 1845, wherein you will find it stated that our predecessors in the Mexican agency, Messrs. Baring Brothers & Co. delivered over to us no papers or documents whatsoever; that those we have we keep, some as vouchers, and others are required frequently for reference; and with regard to the deferred bonds mentioned by Mr. Murphy, we find no allusion made by the Minister of Finance, in his despatch, dated 5th of April 1845, addressed to us, and in virtue of which authority the claim is set forth. We remain, &c. (signed) F. de Lizardi & Co., p. p. Manuel J. de Lizardi," and which said last-mentioned letter was in like manner signed by the said defendant Manuel J. de Lizardi, as holding the procuration for the said firm as aforesaid.

The bill then set forth further correspondence between the plaintiffs, Messrs. Schneider, and Messrs. F. de Lizardi & Co.; and concluded by stating, with reference to the letters from Manuel J. de Lizardi, that the same were signed by him by procuration for the said firm as aforesaid; that, although the said defendant Helena de Cubas de Lizardi alone represented the said firm of F. de Lizardi & Co., the whole business of the said firm was and had been prior to and ever since the 5th day of April 1845, managed and transacted by the said M. J. de Lizardi, who held the procuration of the said firm; that the whole of the transactions aforesaid were conducted by the said lastnamed defendant; and that the said last

named defendant had a considerable interest or share in the said partnership firm, and was a necessary party to the suit.

The bill then charged (amongst other things) that the defendants, and particucularly the said M. J. de Lizardi, signing by such procuration as aforesaid, had frequently and by divers letters addressed to the plaintiffs and others, by the firm of F. de Lizardi & Co., by the authority of the said Helena de Cubas de Lizardi, and on her behalf, and in divers transactions with the plaintiffs and others, admitted that the plaintiffs, J. H. P. Schneider and H. W. Schneider were and had been duly appointed such agents; that the plaintiffs, J. H. P. Schneider and H. W. Schneider, were, as such agents, fully authorized and deputed by the said Mexican government to recover such bonds, papers, and documents on behalf of the said government; and that the last-named plaintiffs, together with the plaintiff Don Thomas Murphy, as such minister plenipotentiary of the said republic, were fully authorized, and were alone entitled to represent, and did in all things represent, the said republic in this country, and that the plaintiffs were unable to take any proceedings at law against the said defendants, inasmuch as the plaintiffs were unable to discover, and the said defendants as aforesaid refused to set forth the numbers, marks, dates, and amounts, or other particulars of the said deferred bonds.

The defendants severally demurred to the bill for want of equity, and also for want of parties, inasmuch as it appeared on the face of the said bill that the person or persons exercising the powers of government in and for the republic of the United States of Mexico in the said bill mentioned, was or were a necessary party or necessary parties to the said bill, and yet the said complainants had not made such persons or person parties or a party to the said bill.

In support of the demurrers, it was contended, that the defendants ought not to be compelled to answer the bill, inasmuch as if they put in their answers, they might immediately afterwards be called upon again to answer a similar bill at the suit of the Mexican government itself; and that the mere allegation in the bill that a firm was represented by a particular person without

more, was not sufficient to entitle the plaintiffs to relief against that firm.

For the bill it was urged that the defendants refused to give to the plaintiffs the names of the holders of the deferred bonds, to enable them to bring actions of trover or to recover damages against the holders, the bonds being specific chattels; that the legal proceedings directed to be taken were to be taken with the consent of the plaintiffs, the Schneiders, and Murphy, the minister plenipotentiary of Mexico; that the word "represent" meant that the plaintiff Murphy represented the interest of the Mexican government as regarded the questions in the present suit, and that Helena de Cubas de Lizardi represented the firm of Francisco de Lizardi & Co., as was alleged by the bill, the other defendant, Manuel de Lizardi, having an interest in that firm; that the deferred bonds were originally deposited with the firm of Francisco de Lizardi & Co., by the Chargé d'Affaires of the Mexican government, residing in London, and that the present bill was, in reality, the bill of the Mexican government.

Mr. Kindersley, Mr. Turner, and Mr. Hetherington, appeared in support of the

bill.

Mr. Tinney, Mr. Roupell, and Mr. Heathfield, contrà.

The MASTER OF THE ROLLS.-I am of opinion that this demurrer must be allowed. I think that the bill is improperly constituted: first, inasmuch as it does not make the Mexican government a party. The property is clearly alleged, as it appears to me, to belong to that government; the Mexican government is, therefore, a necessary party to this suit. The bill is also defective in stating that there is a representative of a firm, and no more; and I cannot agree to the argument addressed to me, that a mere allegation of representation is enough to admit proof of circumstances which might have made that party not only a representative, but actually the party carrying on the business. With regard to the defendant Manuel, he is, I think, though not very correctly and distinctly, yet sufficiently, alleged to have a considerable interest in the firm. I do not say that it is not properly or well done; but I think it is sufficiently done to say that he is not a

mere procurator as he is called. For these reasons, the demurrer must be allowed. There is such a colour of equity here that, notwithstanding the argument that has been addressed to me, I ought to give leave to amend the bill. The question then is, what is to be done with regard to the costs? Nothing is here said about the costs; and the general rules and orders of the Court give the costs in favour of the demurring party; but to call it a right under the very same Order, when this is to be subject to the direction of the Court, is something singular. The Court (notwithstanding it rests upon allegation, and allegation raised by demurrer, and, therefore, admitted for the purpose of the demurrer) will and does, day by day, take into consideration the nature of the case, for the purpose of considering,-first, whether there ought to be any direction at all given as to the costs; and, in the next place, for the purpose of considering whether there ought to be any leave given to amend the bill. I remember cases where leave given to amend has been a matter of very serious consideration, and, after determination here, the cases have been carried elsewhere, and it has been decided that such is entirely in the discretion of the Court upon the facts appearing before it-facts appearing in the very way in which the facts appear in this case upon allegations in the bill, and in the admissions on the demurrer; not admitted for the purpose of adjudication upon those facts, and upon the merits appearing for the adjudication, but judging, from the nature and probability of the case, whether justice does require any further proceedings, and whether there has been an excuse for coming forward. Now, I think, that the justice of this case does require that there should be leave given to amend; and, with respect to the other point, it does not follow that the costs are to be given to the demurring party. My opinion, in this case, is not quite clear as to what ought to be done with regard to this demurrer till the hearing of this case afterwards. The order that I make now is to allow this demurrer, reserve the costs till the hearing, and give the plaintiffs leave to amend their bill. The bill must be amended within a limited time; and if it be not amended within that time, the plaintiffs must pay the costs

In this case, the defendant, John Harrison, died before putting in his answer. A supplemental bill was then filed to bring his administratrix, Elizabeth Harrison, before the Court. The administratrix, by her answer, admitted the possession (amongst other documents) of a draft answer to the original bill, which had been prepared for the purpose of being put in by the intestate, but had not been engrossed; and after setting out part of the contents of the draft answer, the defendant craved leave to refer to the same when produced. On the 8th of May the plaintiff moved for the production of the draft answer, when the motion was refused on the ground that it was a privileged document. On the 12th of June the motion was renewed.

Mr. Rogers, for the motion, contended, that the defendant, by setting out the contents of the document in part, and craving leave to refer to the same, had brought herself within the case of Hardman v. Ellames (2), and had thereby waived her privilege. He also cited Jones v. Pugh (3).

(1) Vide 45th Order of the 8th of May 1845. Ord. Can. 301; 14 Law J. Rep. (N.S.) Chanc. 289. (2) 2 Myl. & K. 732; s. c. 4 Law J. Rep. (N.S.) Chanc. 181.

(3) 12 Sim. 417; s. c. 11 Law J. Rep. (N.s.) Chanc. 323.

Mr. Romilly, Mr. Bazalgette, Mr. Shebbeare, and Mr. W. D. Lewis, for other parties.

June 22.-WIGRAM, V.C.- It is clear that originally the plaintiff had no right to see this document; but the question is, whether by setting out part of the contents, and craving leave to refer to it the defendant has not brought herself within the rule laid down in Hardman v. Ellames. I think that case is an authority for holding, that the plaintiff is entitled to an inspection of that part which has been set out in the answer; but it by no means follows that the defendant has thereby lost the benefit of her privilege as to the remaining portion of the document. The order will be, that the plaintiff have liberty to inspect that portion of the document set out in the answer, with liberty to the defendant to conceal the remainder.

This was a suit for the administration of the estate of the late Duke of Sussex. The accounts had been taken, and the Master found that Mademoiselle D'Este was a creditor upon the estate, in respect of a voluntary bond for 10,000l., given to her by the duke. It appeared that the specialty debts for value had been paid, with interest, and the principal of all the simple contract debts, together with the costs of proof; and the only question now was, whether, under the terms of the 46th Order of August 1841 (1), the claim of the simple contract creditors for interest was to be preferred to the claim for the principal upon the voluntary bond, the estate being insufficient to pay both.

Mr. J. Russell and Mr. Rogers, for the

(1) Ord. Can. 177; 10 Law J. Rep. (N.s.) Chanc. 114.

In 1838 the usual four day order was made for the defendant to pay money into court, and was duly served in 1839, shortly after which the defendant became bankrupt. In October 1845, the fiat was annulled, and in July 1846, the defendant was arrested under an attachment for disobedience to the order of 1838. The attachment was discharged for irregularity, with costs, on the ground that no writ of execution of the order had been served pursuant to the practice existing before the Orders of August 1841, and that the order did not contain the indorsement required by the 12th Order of August 1841.

Semble the plaintiff ought to have applied to the Court for a new order.

Where a party in custody is discharged on the ground of the attachment being irregular, the Court will not, in general, make it a condition of his discharge that he shall bring no action; but will restrain him if he subsequently bring an action for false imprisonment without leave.

This was a motion to discharge an attachment for irregularity. The bill was filed for an account of certain West India estates, of which the defendant Wyllie had been appointed receiver. The Master had taken the accounts, and by his report found that Wyllie, as receiver of the estates, had a considerable balance in his hands. On the 10th of March 1838, the usual four day order was made for Wyllie to pay into court the balance then in his hands, and this order was duly served. In 1839, a fiat in bankruptcy was issued against Wyllie, and in October 1845, the fiat was annulled. On the 7th of July 1846, Wyllie was arrested under an attachment, for disobedience to the order of March 1838.

Mr. Rolt, for the motion, contended, that if this was to be considered as a proceeding under the old practice, the defendant Wyllie ought to have been served with a writ of execution before issuing the attachment; if a proceeding under the practice established by the 12th Order of August 1841 (1), which dispensed with the writ of execution, the memorandum required by that order, informing the defendant of the consequences of his disobedience of the order, ought to have been indorsed upon the order. That in either view, the attachment was irregular, and must be discharged, with costs.

Mr. Tinney and Mr. Romilly, contrà, contended, that as the writ of execution was wholly taken away by the 10th Order of August 1841 (2), the plaintiff had no other course but to execute the writ of attachment; that the 12th Order of August 1841 was prospective merely, and did not apply to any contempt committed previous to the issuing of those orders.

Mr. Rolt replied.

WIGRAM, V.C.-If the plaintiff had got into a difficulty, he might have applied to the Court for a new order. I shall discharge Mr. Wyllie; but if the plaintiff wishes to state the circumstances under which the attachment was executed, I will consider them with respect to costs.

July 11.-Mr. Tinney, for the plaintiff, now made an application that the Court

(1) Ord. Can. 167; 10 Law J. Rep. (N.S.) Chanc. 412.

(2) Ord. Can. 165; 10 Law J. Rep. (N.s.) Chanc.

412.

would make it a condition of discharging the attachment, that Wyllie should undertake not to bring any action for false imprisonment, as the irregularity was caused by the mistake of the plaintiff, and not by malice; and he cited

Aston v. Heron, 2 Myl. & K. 390; s.c.

3 Law J. Rep. (N.s.) Chanc. 194. Frowd v. Lawrence, 1 Jac. & Walk. 655. Bricknell v. Stamford, 1 Beav. 368. Ex parte Van Sandau, 1 Phil. 445; s. c. 14 Law J. Rep. (N.s.) Bankr. 9. Mr. Rolt, contrà, submitted that Wyllie was not bound to come under any such submission.

It appeared that the plaintiff had been advised in the office of records and writs that, under the circumstances, the proceedings to enforce the order of 1838 by attachment was the proper course.

July 14.-WIGRAM, V.C.-In this case a motion was made that the defendant Wyllie, who was in custody under an attachment, might be discharged out of custody, on the ground that the attachment had been irregularly issued; and, upon the hearing of the motion, I discharged the attachment; but, on the plaintiff suggesting that the Court ought to make it a condition of the discharge of the attachment, that Wyllie should be restrained from bringing any action, I reserved my decision upon that question. Upon referring to the cases which were cited upon that point, it appears to me perfectly immaterial whether I do or do not restrain Mr. Wyllie from bringing an action; for in such cases the Court will assume jurisdiction itself to decide whether it is proper that an action should be brought or not. In Aston v. Heron, the Lord Chancellor observes upon the anomaly of the practice; but still he says, that, if a man imprison another falsely, this Court has the power of saying that the party injured shall not go before a jury to ascertain the damages, wherever the injury has been committed in executing the process of the Court: but that the practice is, to apply to the Court for leave to bring an action. In one case, where the party brought an action without leave, the Court made him pay the costs of that action. That appears to be the practice, and I do not find that any case has arisen in this country, except the case