and no more within the control of the court than a capias ad satisfaciendum in common law proceedings: See Daniel's Ch. Pr. 1057, note. This is clearly recognized by the act of 1842, abolishing impris onment for debt, which forbids the arrest or imprisonment of any person upon process on any judgment or decree founded upon contract, "excepting proceedings as for contempt to enforce civil remedies." Under this act it has been held that an attachment to enforce the decree of a court of equity is so purely the remedy of the suitor, that if the decree upon which it is based is for the payment of money and founded upon contract, the attachment cannot issue at all: Scott vs. The Jailer, 1 Grant, 237. But, it has also been held, a decree for the payment of moneys held in trust may be enforced by attachment, such process falling within the express terms of the exception: Chew's Appeal, 8 Wright, 247. The language of the exception is noticeable-" excepting proceedings as for contempt to enforce civil remedies." "As" is here manifestly used in what Lord Coke calls a similitudinary sense, to show that while the proceedings referred to resemble proceedings for contempt, they are not the same thing-nil simile est idem. The distinction between such an attachment and one to punish an actual contempt of court is clearly pointed out by Chief-Justice Agnew in Tome's Appeal, 14 Wright, 285. In that case, after showing that the act of 1842 did not interfere with the right to an attachment against a defaulting executor, he says: "The objection to the attachment that it is criminal process, and Tome having been convicted and sentenced in the Quarter Sessions for embezzlement of the estate in his hands, imprisonment upon the attachment is a double punishment, is unfounded. Whatever may be the criminal nature of the disobedience which brought him into contempt, the attachment in this case partakes of the nature of a civil remedy to enforce obedience to the decree, not merely to punish the contempt. The sentence of the Quarter Sessions operates simple to punish for the fraud, but not to restore the estate to rightful hands." "The last objection is that the imprisonment here is unlimited, and therefore contrary to the provisions of the act of 16th of June, 1836. But the restriction stated in the 23d section is upon the power to inflict summary punishment for contempt of court. This is rendered still more clear by the 24th section, which restricts the punishment of imprisonment for contempts to those committed in open court. Attachments to enforce civil remedies are plainly not within the enactment, for the reason that they are not used as punishment, but as the means of remedy." As the contempt in a case like that now before us consists not in a disrespect of the court, but in the withholding from a suitor of that which, it has been adjudged, belongs to him, it is not easy to see why any apology or explanation to the court should be of any effect. There is but one way to purge such a contempt, and that is to pay to the party entitled that which he has the right to demand. So long as he thinks that imprisonment may ultimately lead to restoration, the court, in my judgment, cannot interfere, no matter how greatly the judges, as individuals, may be moved to pity. The petitioner, however, is not without remedy. It is found in the act of 16th of June, 1836 (P. L. 731), relating to insolvent debtors, which provides that the Courts of Common Pleas shall have power to grant relief to insolvent debtors, on application made in the manner there set forth, in all cases of persons " arrested or detained by virtue of any process issued in any civil suit or proceeding for the recovery of money or damages, or for the non-performance of any decree or sentence for the payment of money." Under this act, however, the petitioner for relief must furnish schedules of all his estate and effects; of all his creditors, and of the causes of his insolvency and the extent of his losses, and, at a time to be fixed by the court, shall submit to an examination by the creditors, to whom, if required, he shall exhibit all his books and papers. He shall then, upon executing an assignment to trustees appointed by the creditors, be entitled to a discharge, except in certain cases where his imprisonment must have continued for at least sixty days. But he may subsequently be required to submit himself for examination as to his property; and any conveyance to or for wife or children with intent to defraud creditors is void as against the trustees. The act further provides, that if it shall appear that the insolvency arose from losses by gambling or by the purchase of lottery tickets, or that the petitioner had embezzled or applied to his own use money or property intrusted to him, or that he has concealed any part of his estate, or made any fraudulent conveyance, it shall be the duty of the court to commit him to jail for trial at the Court of Quarter Sessions, and if, on such trial, he be found guilty, that he shall be punished as therein provided. If no bill be presented to the Grand Jury at the next sessions, or it he be not tried in due time, or if he be acquitted, it is then the duty of the Common Pleas to grant his discharge. If it had been supposed that the judges of the Common Pleas, while sitting in equity or in the Orphans' Court, had the power to discharge persons detained for "non-performance of any decree for the payment of money," simply upon being shown that the petitioner had become insolvent, and could not, therefore, comply with such decree, it is very remarkable that this act should have been passed. What delinquent trustee would be simple enough to avail himself of the act if he could do so much better with the court under whose process he was "detained?" In such case all its wise and just provisions for the careful examination of the petitioner, and for surrender of his property, and for punishment of fraudulent concealment or conveyance, are of no avail. And though, if it appear to the Common Pleas judges that he has been guilty of embezzlement, they are required to commit him for trial at the Court of Quarter Sessions, as Orphans' Court judges they need not; and if they can discharge him at all, the discharge is absolute and unconditional. In such case the widow and orphans, who, perhaps, have been reduced to beggary by the dishonesty of the executor, have at least the consolation of knowing that the "contempt has been purged" to the satisfaction of the court established for their protection. Being convinced that the petitioner can obtain his discharge only in the manner provided by the act of 1836, I am compelled to dissent from the order granting it in this court. It may be added, that it has been held in England where a defendant in custody under an attachment for non-payment of a sum of money, who had not taken the benefit of the insolvent debtors' act, applied to be discharged on the ground of poverty, that the court had no jurisdiction to discharge, and that the only mode by which he could procure his discharge was to take the benefit of the act, and then apply to the Court of Chancery: Smith's Chancery Practice (English edition), 132; see also Blumer's Appeal, 5 Norris, 371. In the recent case of Evans vs. Bear, decided in 1874, upon appeal from the decision of the master of rolls (10 Law Rep. Ch. Div. 76), two executors, W. Drake and J. Bear, had, upon settlement of their account, been found indebted to the estate. Bear was a village schoolmaster, of advanced age, and had taken little part in the administration, except in joining in receipts. The moneys so found to be due by them had been embezzled by Drake, who died in 1866, after a decree had been entered against them jointly and severally, requiring them to pay over the amount, £2,203. The money not having been paid, an attachment was applied for. against Bear. In reply, it was shown that he had received none of the money, all of which had been drawn out by Drake. It was also shown that he was upwards of seventy-five years of age, very infirm, and that an arrest would endanger his life, and that he was utterly unable to pay the money. The master of the rolls (Sir George Jessel) held that Bear was not protected by the act exempting from imprisonment for debt, and that. the court had no discretion to prevent the writ from issuing. This was affirmed on appeal, Lord Justice James saying: "I am very sorry that we must hold that the master of rolls was right. It is quite clear that the third exception in the debtors' act applies. The two executors, have been declared severally, as well as jointly, liable for the money; that being so, we have no discretion. The case is entirely taken out of the debtors' act, and the old law and practice are applicable:" See also Reg. vs. Weston, 8 Jurist, 1122; Lewis vs. Barnett, 6 Law Rep. Ch. Div. 252. In Patrick vs. Warner, 4 Paige Ch. R. 397, it was decided, that where a party is imprisoned upon a proceeding in the nature of a contempt, to enforce the payment of costs, he cannot be relieved from imprisonment by the court. The case of Lansing vs. Easton, 7 Paige Ch. R. 364, is to the same effect. That the remedy in such cases is under the insolvent laws. See Van Wezel vs. Van Wezel, 1 Ed. Ch. 113; Ex parte Perkins, 3 Dessaus, 549; Blumer's Appeal, supra. A. S. L. Shields and A. S. Letchworth, Esqs., for petitioner. E. R. Worrell, Esq., contra. [Leg. Int., Vol. 37, p. 182.] Estate of H. SCHLAEFER, deceased. It is a rule that where parties to a suit settle a controversy without providing for the costs, each party shall pay his own costs. Sur exceptions to master's report. Opinion delivered April 24, 1880, by ASHMAN, J.-The decree reported by the master was founded upon a peculiar state of facts. The petitioner, who alleged that he was a creditor of the decedent, cited the administrator to file an account. The latter, in his answer, denied the debt. A replication was filed, and the matter was referred to an examiner and master. Counsel for the petitioner appeared before the master, but the petitioner himself declined to be present, or to produce any witnesses or testimony. Notwithstanding this failure, the master held regularly adjourned meetings, commencing November 16, 1877, and ending October 23, 1879. No evidence was offered until the last meeting, when the defendant and the counsel for petitioner gave their own testimony. No proofs whatever were taken on the part of the petitioner, and no subpoena to compel his attendance or that of his witnesses was issued. The plaintiff's claim was for the board of decedent's minor child, and amounted to $730. The defendant, in his testimony, stated that after the filing of the petition and answer, he gave to the petitioner, who was his uncle, a small sum of money, less than $50, to assist him in paying his rent, which had fallen into arrears, but that he had expressly re fused to consider the present claim, and had denounced it as foolish. His account as administrator had been long before filed and confirmed, and final distribution of the estate had been made. He said further that he immediately demanded the custody of the child at the hands of the petitioner, and that thereupon the latter, in consideration that the child, whose services were valuable, should be allowed to remain with him, promised that he would, at no time thereafter, make any claim for the board or clothing of the minor. The master finds in these facts evidence that the parties settled the claim, and that their non-appearance at the audit was an attempt to obstruct the proceedings before him. He adds: "If the estate had a valid defence to make to the claim, the representatives should have man fully come forward, and made it before the examiner and master. Their failure to do this, or even to appear until nearly two years after the first summons, can be viewed in no other light by the examiner and master than as a confession of the debt on the part of the estate, and an endeavor on the part of both parties to benefit the estate at the expense of the officers of this court." We cannot agree with the conclusion reached by the master. Exactly by what method regular meetings were contrived to be had before him, during a period of nearly two years, without any evidence being offered or even sought for on the part of the petitioner, the master does not explain. Nor does he state why it became necessary for the defendant, who appeared by counsel at every meeting, to disprove a claim which, in the absence of any evidence in its favor, must be held never to have existed. It is a novelty to assume that because a respondent refuses to interpose a defence to a demand in advance of proof to support it he thereby admits its validity. Here, however, the defendant did rather more than his duty. He appeared and testified, and so far from confessing the petitioner's cause of action, he expressly denied it. Yet he was decreed by the master to pay not only the costs of the reference, including the examiner and master's fee, but also the counsel fees of the plaintiff. Even if the master was correct in holding against the positive declarations of the respondent to the contrary, that the payment of less than $50 was intended as a settlement of the claim for $730, he apparently overlooked the rule that where parties to a suit settle the controversy without providing for the costs, each party shall pay his own costs: Johnston vs. Brannan, 5 Johns. 269; Watson vs. Depeyster, 1 Caines' R. 66. That the counsel for the petitioner was deceived by his client is apparent, but he could have compelled an appearance at the audit and a formal abandonment of the claim, and saved himself the annoyance of many fruitless meetings. The petition is dismissed at the costs of the petitioner. M. Sulzberger, Esq., contra. [Leg. Int., Vol. 37, p. 183.] Estate of SARAH EASTWICK, deceased. It is well settled that a gift to a trustee for the "sole" use of a beneficiary is equiva lent to a gift for her "separate" use, no technical words being requisite for the creation of such a trust. Irrespective of the words used in its creation, a separate estate can, of course, only be for a woman married or contemplating marriage. Sur exceptions to adjudication. Opinion delivered April 24, 1880, by PENROSE, J.-It is well settled that a gift to a trustee for the "sole" use of a beneficiary is equivalent to a gift for her "separate" use, no technical words being requisite for the creation of such a trust: Adamson vs. Armitage, 19 Vesey, 416; Davis vs. Proud, 7 Beav. 288; Jameson vs. Brady, 6 S. & R. 466. Irrespective of the words used in its creation, a separate estate can, of course, only be for a woman married or contemplating marriage. That the marriage of her beneficiary was in the mind of the testatrix is clear from the limitation over in the event of her death without issue; and, in point of fact, the marriage now existing took place before the execution of the codicil to the will. The codicil was a republication, and the will is to be read as of that date: Pigott vs. Waller, 7 Vesey, 98. The decree entered by the auditing judge, whose attention was not called to this fact, must therefore be modified; and the balance held by the accountant awarded to the exceptant in trust for the separate use of Mrs. Jones. Charles Pancoast, Esq., for exceptant. G. S. West, Esq., contra. [Leg. Int., Vol. 37, p. 183.] Estate of JOSEPH CAIRNS, deceased. The moment a decedent dies insolvent the creditor becomes an owner of his insolvent debtor's estate, in the same sense that he does when an assignment inter vivos is made. Creditors of the same class are entitled to have the estate divided pro rata. An accountant is not relieved of his responsibility by reason of a voluntary distribution of the money which ought to have been in his hands, among the creditors |