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bill filed in the Court of Chancery, they obtained an order of that Court, referring it to a master to see whether the bill filed there, and that in the Court of Exchequer, were for the same matter.

[522] The respondents, without any previous application to the appellant Bateman for the brief, moved the Court of Exchequer on the 22d of November 1750, for an attachment against both the appellants, and also against Mr. Studert and Mr. Stoughton, for taking away and keeping this brief; which motion was founded on an affidavit of Kean's, wherein he swore that Studert had taken the brief out of his lodging and given it to Stoughton, that Stoughton had delivered it to the appellants, or one of them, and that Yielding having been applied to by Kean for the brief, had refused to return it: whereupon the Court was pleased to order that Yielding should be attached and answer personal interrogatories, and that Bateman, and the other persons complained of, should answer the matter of Kean's affidavit.

Accordingly the appellant Bateman, together with Studert and Stoughton, made several affidavits, in which they swore, that the brief came into their hands in the manner before stated, and that when Studert undertook to procure it, they severally apprehended it to be one of Bateman's briefs; and that till Yielding had got the brief into his hands and opened the same in order to read it, they did not know it to be a brief belonging to the respondents. And personal interrogatories having been exhibited to the appellants, and also to Studert and Stoughton, they severally answered the same to the like effect as they had sworn in their affidavits.

On the 23d of May 1751, the Court having heard these affidavits and examinations read, and after hearing counsel for all parties, were pleased to order, that the brief should be delivered into the hands of the officer of the court, (which was immediately done,) that an attachment should issue against the appellant Bateman, and that the attachment before granted against the appellant Yielding should stand.

From these several orders of the 22d of November and 19th of February 1750, and the 23d of May 1751, the present appeal was brought. And as to the order of the 19th of February 1750, it was said (D. Ryder, A.  Forrester), that the order made on the 12th of that month. upon the appellant Bateman's motion, for dismissing his own bill with costs, was properly made, and was agreeable to the daily practice of courts of equity. That it was made before issue joined, and when the respondents the Conways, who were defendants to that bill, were actually in contempt for not answering it. And as to the other orders appealed from, it appeared from the appellant Yielding's examination on the interrogatories, which was to be taken for truth, that the original intention was only to get a brief of the appellant Bateman's, and that the getting one belonging to the respondents in its stead, was by mere chance, and without any design. That this the Court of Exchequer had itself determined, by discharging Studert, who first got that brief, and also Stoughton, who delivered it to the appellants. That no application was made to the appellant Bateman to return it; and the appellant Yielding, who had received it from his client the appellant Bateman, could not, without a breach of trust, deliver it up to [523] Kean, but by Bateman's order; and especially as they swore, that they did not believe Kean was employed by, or concerned for the respondents at the trial. That it was neither immoral or unjust in the appellant Bateman, to read those instructions of the respondents the Conways for their counsel, which chance had thrown in his way, nor more so to deliver them to his attorney the other appellant, nor in this last to receive them from him: and it was impossible that this could be a contempt of the Court of Exchequer in either of them; for the instructions did not relate to any prosecution or trial directed by that Court, but to the trial of an indictment, found several months before any bill was filed in the Exchequer, and quite independent of that suit; there was not therefore the least pretence for punishing the appellants, as for a contempt of the Court, and yet it was thought proper to attach the appellant Yielding instanter, by the order of the 22d of November 1750, without an hour given to shew cause, whereby he was made subject to day-fees ever since; and this, though at the time of receiving the brief from the other appellant Bateman, and for several days afterwards, he knew nothing of any cause depending in the Court of Exchequer. But admitting, for argument sake, that the criminal prosecution was relative to, or any part of the cause in the