executor, twenty-eight years, and the survivor died in the month of June 1831. So that many years have elapsed since the last person who could have known anything personally about the matter died. It is easy to judge what likelihood there is of getting valuable information sufficient to enable the Court with a feeling that justice is done, to give or refuse anything that is asked on such an occasion as this. The testator's will, having regard to the situation in which his property was placed, is attended with no little obscurity. I think that the words of the will are such, that if we had no question of the trade, the son Joseph would have been entitled for his life to enjoy the leasehold property in the condition in which it was found; and, consequently, that I could not declare that the trustees and executors ought within a year after the testator's death to have converted that leasehold into money. It is not at all unlikely under the circumstances that have been stated, that the testator did contemplate the carrying on the trade by his son; but I am of opinion that the words of this will do not distinctly authorize it. The conjecture which may be made is derived from the fact of his not directing any sale of it, (the will having no specific direction for that purpose,) and of his having taken the son into partnership with him, and carried it on in their joint names. That gives rise to no more than a conjecture, but the Court cannot act on a mere conjecture; and I think it is here considered to be a rule that admits of no exception, that to authorize executors to carry on or to permit to be carried on a trade the property of a testator which they hold in trust, there ought to be the most distinct and positive authority and direction given by the will for that purpose. There s nothing of that kind here.

Now, these executors appear after the death of the testator to have not actively interfered, for a time at least, at all. Accordng to their own statement they permitted he son, then a young man, to possess he whole of the capital and stock in trade, and to use the capital of the testator and a portion of his estate in carrying on that trade, subjecting the whole of it to all the risks belonging to trade, and those risks ultimately ended in a bankruptcy of the son, J. Kirkman, by which that which had been

the property of the testator became vested in the assignees of the son. I do not intend to cast any imputation upon those gentlemen. Considering the words of this will, they may have been (as is suggested) advised that they might safely permit that to be done, or they might have been advised that it was a doubtful point whether it was allowed to be done or not by the will, and that the only mode by which they could relieve themselves from risk was to obtain the direction of a court of equity. They may have been advised to that effect under circumstances which often induce trustees to undergo risks to which they ought never to have been exposed. So much of doubt there might be on the question, and so much expense in getting the opinion of the Court, that they may have said they would rather run the risk to which they were exposed than put the testator's estate to expense. Such a course is compassionate and considerate; but if it were the course of proceeding here, it cannot be used as an argument that they are not to undertake the risk. They could not be excused by that from the risk, because, if that were the case, they voluntarily undertook it.

Some part of the testator's property was engaged in trade, and some part was not; and I am of opinion that notwithstanding the great length of time which has elapsed, the plaintiffs are entitled to have this matter fully inquired into. At the same time, I am also of opinion that considering that all the executors are dead, that there is no person now living who can personally give an account of the matter, that all who are here are strangers to it, the executors may very reasonably resist a declaration being made against them at this time, and may desire that they may have the means, if such means can be found (though we do not know where they are to be derived from), of giving every possible explanation which further inquiry may afford.

I think the plaintiffs are entitled to have an account and inquiry as to all the property which the testator possessed at the time of his death, what the executors and trustees have done with it, the circumstances in which it was placed, and what steps they took for the purpose of recovering or receiving any part of the property, if they did anything (I am afraid.

looking at their answer, they did nothing), which, without their wilful default, they might have received. With respect to all the other matters they are not much disputed, and the plaintiffs are entitled to the same inquiry about the converted debt, the inventory and so on, and in all these things the Master ought to have liberty to state special circumstances, in order, as far as he can, to get out what were the facts of the case, and to come to some satisfactory conclusion. I think there ought to be in this case, as there has been in others, a direction that if the Master cannot satisfactorily take the inquiry, he shall have power to state the circumstances that create the difficulty, in order that these circumstances may come hereafter before the Court. The preparation of the minutes will require a considerable degree of care.

Contract - Specific Performance - Demurrer Bill of Revivor and Supplement Obligations devolving upon a personal Representative.

A bill was filed for the specific performance of an agreement, by which the plaintiff was to receive a per-centage upon a certain number of bottles of mineral water, imported by the defendant from the duchy of Nassau, in consideration of personal services rendered by him to the defendant, for procuring the right of exportation. An agreement was also made that a deed should be executed to carry out the terms of the agree

ment.

The defendant appeared to the bill, and applied for an extension of time to answer. Defendant then died, and upon a bill of revivor and supplement being filed against his personal representative, a general demurrer was put in :-Held, that the Court might direct the execution of a deed for carrying out an agreement of this nature, but, at all events, the demurrer could not be sustained, since the original defendant had applied for further time to answer, and his representative was bound by that act, and was precluded from demurring.

This cause came on upon demurrer to a bill of revivor and supplement, filed against

the personal representative of the original defendant John Thomas Betts. The suit was instituted by Augustus Bozzi Granville on the 25th of March, for the specific performance of a contract entered into under the following circumstances. It appeared by the original bill, that in January 1844, a verbal proposal was made by the said John Betts to the plaintiff, that if the plaintiff would exert his influence for the purpose of procuring to the said J. Betts the exclusive right of purchasing from the Duke of Nassau the Selters mineral waters, together with a declaration or certificate from his Highness that all the said water which might be bottled and capped with the said J. Betts's patent capsules were genuine, he the said J. Betts would remunerate the plaintiff by a commission, at the rate of 6d. per dozen on every dozen of the said bottles of water to be imported and sold by him the said J. Betts. It further appeared that a letter was written by the said J. Betts, to the plaintiff, containing proposals in conformity with the said agreement. That the had divers interviews with the president plaintiff, in pursuance of the said agreement,

of the Board of Domains of the Duke of Nassau, at which he urged the adoption. of the several points and stipulations proposed by the said J. Betts, and that the plaintiff obtained from the said president his consent to such stipulations: and that during the aforesaid negotiations the said J. Betts was resident at Wiesbaden, and was in constant communication with the plaintiff, and in all respects sanctioned and approved of the manner in which the plaintiff conducted the negotiations. That subsequently a certain contract or agreement in writing was prepared on behalf of the Duke of Nassau and the said John Betts, with reference to the grant and sale of the said waters, and the other points and stipulations which the plaintiff had so procured to be conceded to the said John Betts, by and on behalf of the said Duke as aforesaid, and the said contract was duly signed on the 4th of November 1844, as well by the said John Betts as by the proper officer appointed for that purpose by the Duke of Nassau. That after the said contract had been executed, certain proposals were made by the said John Betts to the plaintiff, with respect to the times or periods at which he would

make the payments to the plaintiff, which under the aforesaid agreement he was bound to do, and the said proposals were then contained and embodied in a letter written by the said J. Betts to the plaintiff on the 12th of November 1844, and which letter was to the following effect: "I engage for so long a time as the contract between the Director General of the Domains of Nassau and myself shall exist and continue in force, to pay to you or your attorney, as a remuneration, the sum of sixpence upon every dozen of bottles of all the mineral waters I or my heirs shall export from Nassau during the continuance of my contract, beginning from the 1st of January 1845, which remuneration shall cease at your death; but from the day of your death, and for so long a time afterwards as the aforesaid contract shall continue in force, I engage for myself and my heirs, in lieu or stead of the aforesaid sum of sixpence per dozen, to pay to your heirs or administrators a moiety of that sum, namely, threepence per dozen bottles on all the aforesaid mineral waters exported by me or my heirs from Nassau, in virtue of the said contract." And in the said bill it was further stated that the said J. Betts delivered the said lastmentioned letter or memorandum of agreement to the plaintiff on the 12th of November 1844, of the terms of which the plaintiff expressed his approval. And that it was thereupon agreed between the plaintiff and the said J. Betts that when they returned to London a formal deed should be prepared, to be executed by them, for the purpose of giving full effect to the said agreement between the plaintiff and the said J. Betts. It was further stated that the said J. Betts had ever since the 1st of January 1845, availed himself of the privilege conferred by the said contract with the Government of Nassau, and had ex'ported from the Duchy of Nassau a very considerable number of bottles of Selters Water and other mineral waters. That under the circumstances aforesaid, the plaintiff had applied to and requested the said J. Betts to fulfil his part of the said agreement so entered into between the plaintiff and the said J. Betts, but that the said J. Betts had refused to comply with such request; the plaintiff therefore prayed that the defendant might be decreed specifically to NEW SERIES, XVIII-CHANC.

perform the said agreement, and that an account might be taken of the bottles of water so imported and sold by the said J. Betts, and that if necessary it might be referred to the Master to settle a proper deed, to give effect to the said agreement, and that the said J. Betts might be decreed to execute such deed.

The cause now came on upon a bill of revivor and supplement, which stated that process of subpoena having been served upon the said J. Betts, he appeared to the said original bill on the 12th of April 1847, and on the 22nd of May he applied to the Master to grant him a fortnight further time to answer the said original bill, which was accordingly granted; but before the said J. Betts had put in his answer to the original bill, and before any further proceedings were taken in the said cause, and on the 24th of May 1847, the said J. Betts departed this life. That the present defendant, Sarah Betts, was the sole legal personal representative of the said J. Betts, and that she refused to perform the said agreement so entered into between the plaintiff and J. Betts, and alleged that she was not bound, as his personal representative, by the said agreement.

To this bill a general demurrer was put in for want of equity, and the demurrer was also for want of parties, on the ground that the heir or heirs of the said J. Betts, according to the law in force in the Duchy of Nassau, were necessary parties to the suit.

Mr. Stuart and Mr. Sparling appeared in support of the demurrer, and contended that the agreement entered into between the plaintiff and J. Betts was in itself illegal, and could not be enforced by the Court. By the terms of the agreement the plaintiff was to use his exertions to procure the contract from the Duke of Nassau, and the remuneration was to be computed from time to time, according to the number of bottles sold. This was a pecuniary compensation for services to be rendered, and was not a principle upon which a court of equity could give relief. It was clear that an action at law could not be sustained upon such a contract; since in a court of law it could not be ascertained what amount of bottles had been imported; that might be a reason for filing a bill of discovery in aid of the action;

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but the very fact that the plaintiff could not recover at law was a direct reason why this Court should not enforce the agreement; and unless there were a valid agreement at law a court of equity would not interfere.

Mr. Bethell and Mr. Tripp appeared for the plaintiff; and contended, first, that the agreement was one which could be enforced in equity; and, secondly, that assuming there was any doubt upon that point, the defendant to the bill of revivor and supplement was barred from demurring for want of equity, because the defendant to the original bill, under whom she claimed, had been precluded from demurring. Upon the first point they urged that it was apparent, upon the pleadings, that the contract was a legal and valid one; that the consideration for the engagement on the part of the defendant was, the services rendered by the plaintiff in obtaining the contract from the Duke of Nassau. That as to the alleged illegality in the consideration, and in the agreement, there was no pretence for such an allegation, and that no argument had been used in support of it by the other side. With respect to the plaintiff having a remedy in equity, they relied on two grounds; first, that the sums stipulated to be paid to the plaintiff by the defendant, by way of commission, were to be paid half-yearly, and the amount of such sums could only be ascertained by means of a discovery in this Court; and although it was true that the plaintiff might bring an action every halfyear, and file a bill for discovery merely in support of such action, yet that the Court of Chancery would not put the plaintiff to the adoption of such a vexatious course of proceeding, and would, as in the case of a personal annuity, make a decree directing payment from time to time. Ball v. Coggs (1), Lady Herbert v. Earl Powis (2), Clifford v. Turrell (3); and, secondly, they relied upon the fact that there was a stipulation in the agreement that a deed should be executed for giving effect thereto, and that at least the plaintiff was entitled to have that part of the agreement specifically performed. But, in any event, they contended that the second

point was a decisive objection to the demurrer for want of equity, for as the defendant to the original blll had actually obtained further time from the Master to answer the bill, his personal representative was in like manner bound to answer, and had no right now to put in a demurrer to the bill of revivor and supplement.

The VICE CHANCELLOR said he did not conceive that there was any weight in the objection which had been raised in respect of the heirs of the plaintiff not being parties to the bill, as it was clear from the context of the agreement, that the words were used to express "personal representatives." His Honour then continued.-In the first place, whatever objection there might be to the agreement on the ground of the difficulty a court of equity might have in enforcing it as a thing to be done from time to time, this observation occurs to me. I see it is stated in the bill that it was agreed between the parties that a deed should be executed for the purpose of carrying out the agreement, and the bill prays a reference to the Master to approve of a proper deed for the purpose. I do not see that there is any objection to the Court directing such a deed to be executed, and that course would give the parties an opportunity of trying the question at law. This would place the plaintiff in a more beneficial position than he otherwise would be. That is quite independent of any question upon the demurrer itself. It is stated on this amended bill of revivor and supplement that J. Betts, the defendant to the original bill, appeared on the 12th of April 1847, and on the 22nd of May he applied to the Master for further time to put in his answer. Now when a party has died leaving a personal representative, prima facie the duty falls upon that personal representative of performing all the obligations of the person whose representative he is, and when I find that the original defendant did appear and ask for further time to answer; the obligation incurred by the defendant of answering would necessarily devolve upon the defendant to this bill. Therefore, on that ground alone, I think there is sufficient reason for overruling the demurrer.

Patent-Scire Facias- Staying Proceedings-Jurisdiction-Attorney General, his Authority-Alien Informant-Security.

A scire facias to repeal certain letters patent was issued under the fiat of the Attorney General. The patentee applied to the Attorney General for the purpose of obtaining his direction that all further proceedings in the action should be stayed, or that a nolle prosequi should be entered. That application having been unsuccessful, the patentee applied to this Court for an order to stay the proceedings in the action: -Held, that the Court had no jurisdiction to interfere in the matter; that the writ of scire facias was not granted as of course, and that the Attorney General, when applied to for his fiat (without which the writ could not issue), has an important duty to perform.

The Attorney General conducts an action of scire facias according to his own judgment and discretion, and may, when he thinks fit, stay the proceedings therein, or enter a nolle prosequi, and the controul which he exercises is subject only to the responsibility to which every public servant is liable in the discharge of his duty.

The Lord Chancellor acting as a Judge in the Court of Chancery, either on the common law or equity side, has no authority in matters which depend on the discretionary exercise of the Royal prerogative.

The case of The Queen v. Neilson held to be no authority for the interference of the Court on the present occasion.

Semble-The Crown would not forbear to direct the necessary process to be taken in a case like the present, because the information was given by an alien, or by a person who had no special or direct interest in the matter, or was actuated by some improper motive.

The practice of taking security in cases of this kind, was introduced by the Attorney General alone, almost within living memory, and there is no instance of the Court interfering upon the subject; but if it could be shewn to the Attorney General that the security had become or was insufficient, he would stay the process till it was made good.

On the 27th of March 1840 letters patent

were granted to the defendant, Richard Prosser, in respect of an invention intituled Improvements in machinery or apparatus for manufacturing pipes; confined to England and Wales and the colonies;" and, on the 6th of November 1841, English letters patent were granted to Job Cutler for an invention intituled "Improvements in the construction of the tubular flues of steam-boilers." In 1844 letters patent were granted to the said R. Prosser and to J. Cutler, jointly, for an invention, intituled, "Improvements in the machinery to be used in manufacturing pipes and bars, and in the application of such pipes and bars to various purposes;" confined to Scotland. The invention comprised in the first-mentioned letters patent formed part of the invention comprised in the letters patent granted to R. Prosser and J. Cutler jointly. In October 1845 R. Prosser, J. Cutler, and others, took advantage of the Scotch letters patent, and commenced the business of manufacturing and vending welded iron pipes under the style or firm of the Caledonian Tube Company, at Coat Bridge, near Glasgow. Prosser continued to be a partner in that company until July 1846, when he retired from the business by virtue of a provision contained in the deed of co-partnership constituting the company; and Cutler and the other partners continued to carry on the business. Cutler and his partners having declined to account with Prosser for the value of his interest in the partnership stock, Prosser commenced process against those parties in the Court of Session in Scotland. A writ of scire facias was issued and prosecuted against the defendant Prosser by Irving Van Wart, questioning the validity of Prosser's patent, whose sureties for the prosecution of the suit were Henry Van Wart, his son, and Samuel Aspinall Goddard. Irving Van Wart had been resident, previously to his coming to Birmingham, in the United States of America, and was born there previously to his father H. Van Wart being naturalized in this country; and both H. Van Wart and Goddard had been bankrupts, the one in 1817, and the other in 1843. H. Van Wart had been naturalized as an English subject, by a special act of parliament in the year 1825. I. Van Wart stated in his affidavit that the action of scire facias had been