1843.-Fenner v. Hepburn.

is a present assignment and not a matter resting in mere agreement, which it is the peculiar province of a court of equity to enforce.

THE VICE-CHANCELLOR intimated that, whether this was or was not a present assignment, yet if it appeared from the agreement that a further instrument was necessary to carry the intention of the parties into effect, a court of equity would not refuse relief to a party seeking its aid in that respect.

[*163] *His Honor afterwards decreed as follows:

DECLARE, That according to the true construction of the instrument of the 4th of June, 1840, a further instrument ought to be executed for carrying into effect the intention of it. Refer it to the Master to approve of a proper instrument for the purpose of carrying the agreement into effect. Reserve further directions and costs; with liberty to apply.

June 22nd.-The Master having prepared an instrument which was unsatisfactory to the defendant Hepburn, an exception (assigning various reasons) was taken to his report.

The following order was made :—

WITHOUT allowing or overruling the exception, by consent (the defendant Hepburn undertaking to find such security as hereinafter mentioned) let the defendant Hepburn propose before the Master a security for the sum of £30 per annum for the term of sixteen years mentioned in the agreement, whether the original lease shall or shall not be determined, such security to be in addition to his personal security. And if the Master shall approve of such security, refer it to him to approve of a proper deed of assignment from the plaintiff and his co-executors to the defendant Hepburn, of the house and property in question, for the whole of the said term of sixteen years: the Master, in settling such assignment, to have regard to the instrument of the 4th June, 1840, and to insert a proper provision for securing to the plaintiff such or the same rights, in the event of any breach of covenant on the part of the defendant, his executors, administrators, or assigns, as if the relation between them had been that of lessor and lessee This order to be without prejudice

to any question, in case such security as aforesaid shall not be tendered to the Master.

1843.-Bennett v. Chudleigh.

1843: Jan. 26th.

*BENNETT v. CHUDLEIGH.

[*164]

This Court either by virtue of its general jurisdiction, or under stat. 11 Geo. 4 and 1 Will. 4, c. 36, rule 17, has power to discharge a pauper defendant out of custody, without compelling him to pay costs iucurred previously to the order to defend in forma pauperis.

MOTION that the defendant having put in his answer might be discharged out of custody. It appeared that by an order dated the 3rd December, 1842, the defendant had been committed to prison for contempt in not answering. By an order dated 12th January, 1843, he had obtained permission to defend in forma pauperis. and thereupon a counsel and sixclerk had been assigned to him, and he had put in his answer.

The question was, whether he could be discharged without paying the costs of his contempt.

Mr. Miller, for the motion, contended that both by the 17th rule of the stat. 11 Geo. 4 & 1 Will. 4 (a) and under *the general jurisdiction of the Court, the defendant [*165] could be discharged without payment of the costs incur

(a) The 16th rule of stat. 11 Geo. 4 and 1 Will. 4, c. 36, is thus:—

That where a person shall be committed for a contempt in not delivering to any person or persons, or depositing in court er elsewhere, as by any order may be directed, books, papers, or any other articles, or things, any sequestrator or sequestrators appointed under any commission of sequestration, shall have the same power to seize and take such books, papers, writings, or other articles or things, being in the custody or power of the person against whom the sequestration issues, as they would have over his own property; and thereupon such articles or things so seized and taken shall be dealt with by the court as shall be just; and after such seizure it shall be lawful for the court, upon the application of the prisoner, or of any other person in the cause or matter, or upon any report to be made in pursuance of this act, to make such order for the discharge of the prisoner, upon such terms, and if it shall see fit, making any costs in the cause, as to the court shall seem proper.

Rule 17. That in any other case of a commitment for contempt, not herein specially provided for, the court may upon any such application as last aforesaid, or upon any such report as aforesaid, make such order for the discharge of the prisoner, upon any such terms, and making, if the court shall see fit, any costs in the cause, as to the court shall seem proper.

1843.-Bennet v. Chudleigh.

red before he commenced defending in forma pauperis: Blood v. Lee, (a) Jones v. Peers, (b) Corbett v. Corbett.(c) And he urged that it would be an inconsistency in the Court, after having allowed a party to sue or defend in forma pauperis, to require from him payment of the previous costs.

Mr. Piggot for the plaintiff, cited Davenport v. Davenport(d) as an authority decisive of the present question.

THE VICE-CHANCELLOR.-It appears to me, that under the general authority of this Court, independently of the stat. 11 Geo. 4 & 1 Will. 4, c. 36, or under that statute and its general authority, the Court has the power to make the order which in this case, under its very peculiar circumstances, seems to me proper, namely, that the party shall be discharged: the costs incurred by means of his contempt, and of this application being reserved, and the defendant undertaking to abide by such order as to costs and otherwise as the Court shall think fit.

[*166]

1843: Jan. 26th.

*SHERWOOD V. RIVERS.

Upon a motion for leave to enter a memorandum of service of a copy of the bill upon a defendant under the 24th of the Orders of August, 1841, it is not necessary to show by affidavit that the defendant is not an infant.

MR. SPURRIER, for the plaintiff, moved under the 24th of the Orders of August, 1841, for leave to enter a memorandum of service of a copy of the bill on one of the defendants, pursuant to the 23rd of the same Orders. The affidavit did not state that the defendant was not an infant; but upon this point

(c) 16 Ves. 407.

In Davenport v. Will. 4, c. 36, rule

(d) 1 Phillips, 124. See Yorston v. Nash, 13 Law Jour. 86. Davenport, the argument drawn from the stat. 11 Geo. 4 and 1 17, was urged, but without success. That part of the argument, probably because it made no impression on the Court, is not reported.

1843.-Sherwood v. Rivers.

Spurrier referred to a case mentioned in 1 Hare, 317, note.(a)

Mr. Phillips, amicus curiæ, said that the case there referred to was Goodwin v. Bell, in which the Lord Chancellor had held that it was not necessary in such cases to state by affidavit that the defendant was not an infant.

THE VICE-CHANCELLOR, upon the authority of that case, made the order as prayed.

*ADAMS V. Barry.

[*167]

1843: Jan. 26th and 31st.

Surviving executor, who had not acted in the testator's affairs, protected from the discovery of cases and opinions stated and given on behalf of the deceased executor, who had acted; such cases and opinions having relation to a claim against the deceased executor of the same nature as the claim made against the surviving

executor.

SAMUEL WILSON died in 1814, having, by his will, appointed Charles Adams and Thomas Wilson his executors, who both proved the will. Charles Adams survived Thomas Wilson, and died in 1835, having appointed several persons his executors, of whom the plaintiff alone proved his will.

Thomas Wilson died in May, 1828, having appointed Richard Harris and Mary Ann Wilson his executor and executrix, who both proved his will. In 1829, Mary Ann Wilson married the defendant, William Barry. In May, 1838, Richard Harris died, having appointed two persons of the names of Banks and Waltham his executors, who proved his will.

The bill was filed by the plaintiff as personal representative of Samuel Wilson, and on behalf of himself and all other the creditors of Thomas Wilson against Barry and his wife. After alleging that Thomas Wilson possessed assets of Samuel Wilson, that after Thomas Wilson's decease such assets came to the hands of Harris and the defendants, and that the portion of such assets received by Harris was duly accounted for

1843.-Adams v. Barry.

by his executors, and paid over by them to the defendants, the bill prayed that an account might be taken of the assets of Samuel Wilson received by Thomas Wilson, and that what might appear to be due on that account might be paid to the plaintiff as personal representative of Samuel Wilson out of Thomas Wilson's assets. The bill also prayed the usual relief in a creditors' suit against Thomas Wilson's assets.

The bill contained the usual charge, that the defendants had in their possession divers books, accounts, papers, and documents, relating to the matters aforesaid, from which, if produced, the truth of such matters would appear.

[*168] *The defendants, by their answer, stated that, except in some mere formal matters, Richard Harris alone acted in the administration of Thomas Wilson's estate, and that they the defendants were entirely ignorant, until long after the death of Harris, of there having been any claim whatever against the estate of Thomas Wilson, as executor, or otherwise, on account of the estate of Samuel Wilson; but that, after the death of Harris, the defendants, in right of the defendant, M. A. Barry, who was residuary legatee, as well as surviving executrix of Thomas Wilson, having filed their bill against the executors of Harris for an account of Thomas Wilson's estate possessed by Harris, and for payment of the residue, and that suit having been compromised upon payment of a small balance to the defendants, various papers and accounts belonging to Thomas Wilson were, thereupon, handed over by Harris's executors to the defendants. That it appeared from those papers, but that the defendants had never before been informed of the fact, that Charles Evans, as surviving executor of Samuel Wilson, very shortly after the death of Thomas Wilson, made a claim on Richard Harris for a sum alleged to have been received by Thomas Wilson, on account of the executorship of Samuel Wilson, and also required Harris to deliver up to him the papers relating to that executorship; at the same time threatening legal proceedings for enforcing his claim. The defendants then alleged that, to the best of their information and belief, the cases for the opinion of counsel, copies whereof were comprised in the schedule to the defendants' answer annexed, were prepared, and