Page images

part allowed. The report had been referred back, and the present master (the vacancy having occurred in the interim) had made his report upon only the matters excepted to. At the present time, therefore, there were two separate reports, fortning one entire and complete repoit in the cause, and the object of the present application was to consolidate and confirm the same. The learned counsel argued, that it would involve both the master and the parties in great hardship and difficulty, is the whole of the matters brought before a former master were obliged to be gone into a second time before the new master, and the whole report drawn up afresh, while, perhaps, the portion requiring reconsider. ation and amendment, might bear a very minute proportion to the entire report. Moreover, there was another obvious objection, inasmuch as the master would make the whole report his own, by embodying the former report in his fresh report upon the matters excepted to, whereas the special direction and authority given by the court, would extend only to the latter,

Sir E. Ryan said, that this was an application to add together two separate reports by two different masters, and transmute them into one. Such an application was without precedent in this court, and could not be granted.


MANUK AND orhees versus SAnkies Owes AND othens.

The Advocate General (with whom was Mr. Clarke) moved upon affidavits, that the present trustees of the marriage-settlement might be removed, on the ground of insolvency, and others substituted in their stead.

Mr. Prinsep, for the trustees, did not object, on the part of his clients, to their discharge, and to the substitution of new trustees. His clients, indeed, were anxious to be relieved from their trusts, and secured from all future liability. Yet he conceived it necessary to submit to the court, whether the present proceeding was strictly regular, and whether trustees appointed under a solemn deed, could be removed by a mere petition to the court. He submitted that the parties might change the trustees of their own act, and discharge the present trustees from their liability, a regular deed of release.

The Advocate General, in reply, observed, that he could not understand the course adopted by his learned friend, and he was not aware that there was any middle course between opposing a motion and not opposing it. The parties could not effect the change required withou the aid of the court, first because one was under age, and sécondly because another had refused to give his consent,

The Court said, that it appeared that no opposition to the change was wished to be made on the part of the present trustees, and they unquestionably possessed the right of coming in and opposing the application in its present form, until they were themselves duly discharged from all liability. There must be a reference to the master.

- versus

Mr. Clarke applied for a sale by the sheriff, of the goods of the defendant, seized under a writ of sequestra. tion for want of an appearance. The affidavits stated, that the goods seized were perishable commodities, and that damage and loss would inevitably ensue, if the sale were delayed.

Sir E. Ryan. Why, it appears that the property in question consists of on AM, and I am not aware that gram can be called a perishable commodity. have heard of cases, indeed, where a sale of cattle has been permitted, on the ground of the expense incurred in the keep : in vulgar language, they “eat their own heads off.”

Mr. Clarke suggested, that at the commencement of the rains, gram was likely to be damaged by being long kept, and in support of this position, he referred to a report of the agricultural society, who (the learned counsel observed) must be deemed a better authority upon such a puint, than even their lordships ' Besides, the price of gram was likely to fall in a short time, and this property, therefore, would be sold at a depleciated price.

Sir E. Ryan said, that cven if this were the case, it did not bear out the statement that gram was a pei ishable commodity. The actual sale of the property would be a measure of some severity, and the court saw no reason for hastening it. No judgment had yet passed against the party —he was only in contempt for nonappearance. The ground of the affidavit be must amended.


NibbuxMoney Dabex versus Shamloll Tacone asp oth eits.

Mr. Leith rose and said, that he had to shew cause is this case.

The Advocate General observed, that he had not expected to be called upon, as the motion was his own, and it was in his discretion to press it or not.

Sir E. loyan said, that the course was certainly not strictly regular. It was for the party who had obtained the rule, to apply to make it absolute if they chose. The other side need not interfere, because, unless a motion is made to make the rule absolute, of course it fails to the ground.

The Adrocate General, however, said, that he was perfectly ready, and he proceeded accordingly to support his rule. The nature of the application was this. A creditor Juggomohun Mookerjee, had applied, at a late stage, for leave to come in and prove his claim before the master, and the court had allowed this upon a special order, directing that all costs incurred by the proceedings before the master, should be paid by the creditor. The question was, whether the cosis of certain objections to the items of a bill before the taxing-officer, were to be considered as included in the terms of the order. The learned counsel contended, that these costs did not arise from the delay of his client, that they would have been equally incurred if he had come in six months earlier, and that they did not fall, therefore, within the purview of their lordships' order.

Mr. Leith shewed cause, contending that the costs of the objections were clearly, to all intents and puposes, costs occasioned by the application of the creditor, and fell within the express words of the order.

Sir Edward Ryan said, that the court had given leave to this creditor, with considerable reluctance, and that the order then made was, that all the costs incurred, should be borne by the applicant, as they considered that he had placed himself in the most unfavourable position in this respect. It was the intention of the court, and the order so expressed it, that the party who had already suffered from the créditor's wilful delay, should not be put to any expense at all in the matter. The order extended, not merely to costs caused incidentally by the delay which had occurred, but to all costs whatever which the application should occasion.

Rule discharged.

Bonnerjee versus Bonnen Jee.

Upon the application of the Advocate General, the court said, that judgment would be given in this case (upon exceptions to the master's report) in the course of a day or two.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

The Advocate General stated the case for the plaintiff. The action was brought to recover the balance of principal and interest due upon promissory note for Sa. Rs. 15,000, of which the defendant was the maker, and which had been indorsed over to the plaintiff as secretary to the Union Bank. The defendant and his brother were partners, and had established a cootie or banking-house, which transacted the business with the Union Bank. This promissory note had been given to secure a loan, and the defendant upon two different occasions, had paid up a sum, amounting to between two and three thousand rupees, upon account of the note. The defendant's brother was in the habit of signing for himself and his partner, and had singed his brother's name in his presence upon the present occasion. The learned counsel submitted that proof of the payment on occount of the note would preclude the defendant from denying his own liability, and the authority of his brother to indorse. Evidence was then tendered in support of the above facts. Mr. Clarke for the defence submitted, that there was not sufficient proof of authority, or that the instrument was duly explained and recognised by the present defend. ant; and further, that, as it had appeared from the plaintiff's own case that several dealings had taken place between these parties and the Union Bank, there was nothing to shew satisfactorily to what account the alleged sums had been paid. He therefore prayed a nonsuit. Sir E. Ryan. There is quite sufficient primá facie evidence to shew that the sums were paid on account of this promissory note. If you go for a nonsuit, that evidence must be assumed true for that purpose ; -it is otherwise, if you submit the case to us as jurors, and claim a verdict for your client.

Mr. Clarke then called a witness to prove that the cootie was the sole property of the brother, and that the defendant had no interest in it whatever. This witness was examined and cross-examined at great length, and the plaintiff produced testimony in contradiction of the material parts of his evidence.

The Court was of opinion that the plaintiff had succeeded in proving the authority, and was entitled to a verdict for the whole balance claimed. . Verdict for the plaintiff. Woodbycliuxt Doss versus Brindabun. Mr. Marnell opened the pleadings. The Advocate General stated, that this was action upon an account stated between the parties. Judgment had been allowed to pass by default for want of appear

[blocks in formation]

The Advocate General (with whom was Mr. Prinsep,) for the plaintiff, stated, that this was an issue from the equity side of the court, directed for the purpose of trying the question whether the complainant in the equity suit (the defendant at law) had accepted and acknowledged a certain Bengallee security in the nature of a bill of exchange for the sum of Sa. Rs. 2,900. The defence set up was that the defendant had never signed her name to any such paper and that the whole was a forgery; but the plaintiff would call the subscribing witnesses, and show when and how the whole happened. The brothers of the defendant (who is a lady of property) by name Cossinauth Dutt and Bissinnauth Dutt, had been indebted in large sums to the plaintiff; some of these debts were liquidated by the sale of certain property mortgaged by them to the plaintiff. The present defendant had pail several large sums at different times and given securities, on account of her brother's debts, and among others had signed the present acceptance to cover the balance found due to the plaintiff from Cossinauth Dutt, on a settlement of accounts between those


Several witnesses were called on behalf of the plaintiff, and examined and cross-examined at great length. Among others, the alleged subscribing witnesses to the instrument were called to prove its validity ; the defendant's counsel endeavoured to shew that their names had beed subsequently added. Sir Edward Ryan observed, as soon as the case for the plaintiff had closed, that the court would not call upon the other side for their defence, as they were of opinions, that the plaintiff had sailed in proving the genuineness of the acceptance. Mr. Clarke and Mr. Leith appeared for the defence. Verdict for the defendant.

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small]

The Advocate-General, shewed cause against the rule nisi obtained by the plaintiff in this case for entering up judgment as in the case of a nonsuit. The action was brought against an insurance office for Co.'s Rs. 12,600. This plaintiff was resident at Penang, from which place the ship sailed, and where she had been insured. The vessel was wrecked at Cochin, and the owners now claimed for a total loss. A Mr. Philip and Mr. Morton had been material witnesses to prove the plaintiff's case ;-the former had sailed from Calcutta, and the latter was dead. There were other persons at Penang, capable of giving important evidence, and it would be necessary to apply for a commission for" their

examination. Under these circumstances the learned' counsel submitted, that no unnecessary delay had been: shewn.

Mr. Leith in support of the rule, contended that the plaintiff had been guilty of luches and unwarranted delay. The original action was commenced more than a year ago, and discontinued;—issue had been joined in the present action last January, and nothing had been done since. The desence was that the ship had been run on shore by fraud and design ; and although underwriters were generally unwilling to take defence in actions upon policies, yet in this case they conceived it to be their duty to defend, as they were confident of the truth of their case, and the fraud of the claimants.

Sir E. Ryan said, that if the underwriters were so confident of their case, it would be more Fatisfactory to give the other side a full opportunity of procuring all the necessary evidence. The court however, would not compel a commission to examine witnesses, unless the defendants cousented.

Mr. Leith consented to a commission. Rule discharged—costs to abide the event.

RAM phone Gilose versus RamaNunn Ghosr.

Mr. Clarke shewed cause against the rule nisi for the postponement of this trial, obtained on the ground of the absence of two material witnesses. There was nor affidavit on the part either of the defendant himself or his attorney, nor was there any sufficient ground shewn for the continued absence of these witnesses. The learned counsel put in counter-affidavit of his client and attorney, and it appeared that these witnesses were at Dacca, which was stated to be only 200 miles from Calcutta, and readily accessible by dawk communicalion.

Mr. Leith supported his rule. Sir Edward Ryan said, that the rule must be discharged, and with costs. There was no other affidavit but that of the gomasiah, and the court observed, that frequent attempts had been made latterly to postpone trials upon such vague grounds, Their lordships would require a much more certain and substantial foundation for such applications. A suspicion naturally arose that the application was made merely for the purpose of delay.

[blocks in formation]

The Advocate General stated, that the defendant was the editor and publisher of a newspaper called the Agra Ukhbar, and that the present bill had been filed against him for a discovery of the names of the proprietors of the said paper, in aid of an action at law about to be brought against them for certain libels contained in that newspaper. There were several grounds stated in the demurrer, but the chief grounds were that the bill sought a discovery which would subject the defendant to pains and penalties, contrary to the principles recognized by courts of equity, and, moreover, that the defendant himself might be examined as a witness at law in an action of libel against the proprietors, and that he was not subject, therefore, to a bill of discovery.

[blocks in formation]

The Advocate General submitted, that there was no ground for the objection. It was only stated, that an action was about to be brought against the proprietors, and the defendant was not necessarily included in this. There was nothing whatever to shew that the answer to this bill would attach climinality to the defendant. Besides, there was no possible object to be gained by calling upon him to acknowledge himself responsible as proprietor, because he was already amenable as the avowed editor. But, even admitting for argument's sake, that part of the discovery sought in the bill extended against the defendant himself, and afforded a ground for the objection that he was not compellable to criminate himself by his answer, this did not apply to the whole bill, and there were abundant authorities to shew that a defendant might demur or plead, to part of a bill and answer to the remainder. The present demurrer, therefore, was at all events too large.

Sir Edward Ryan. There certainly is some distinction, by the manner in which Mr. Advocate General has ingeniously shaped his case. The court now wish to hear the opposite side upon the other main point taken in the demurier.

Mr. Prinsep, in support of the demurrer, contended that their opponents were placed in this palpable dilemma;-if they mean to argue that this defendant was an interested party, and as such liable to the bill of discovery, then the first objection would arise, that he was called upon to make a discovery which would criminate himself as proprietor, and it on the other hand it was contended that he was not interested, and was in this respect a mere third party, an equally insurmountable objection arose in the principle that a party capable of being made a witness at law could not become a party to a bill of discovery. Now, it was stated in the bill that C. G. Mansell (and others were proprietors of this paper:—then, why was not an action brought against Mr. Mansell and Mr. Tandy subpoenaed as a witness to prove the proprietorship 2 No authority could be shewn for making a witness defendant in an equity suit for the mere purpose of obtaining his evidence ; and, indeed, if such a principle were once acknowledged, it would lead to endless abuses. Every one was liable to be sub cenaed as a witness ; but was every one therefore compellable to answer a bill of discovery 2 Besides there were no grounds alleged how or why this party possessed any knowledge upon the subject, or enjoyed peculiar opportunities of piocuring information. It was true, that he was editor of the paper in question, and as such employed in the office, but this was no guarantee that he was acquainted with the names of the proprietors themselves. The bill might just as well have been filed against the Printer's devil, who of course was also employed in the office. The whole proceedings was a mere experiment; the bill was (as it were) shot into a mob, and the complainant might go on in the saine manner from party to party, until he succeeded in hitting upon some one capable of giving him the desired information. But, farther, the learned Advocate General had considered the former objection upon two narrow grounds. There were authorities to show that no bill of discovery would lie in aid of any criminal proceedings, whether the defendant himself was implicated or not, and that it was very questionable whether it could be supported for any tort whatsoever. These positions were laid down by Lord Langford, the master of rolls, in a recent case reported in 1 Keen's reports, Glynn v. Houstoun, where the bill was in aid of an action for false imprisonment against the Governor of Gibraltar. So in Cartom Douglas, 16 Vesey Junior, it was laid down, that it was material whether the criminal matter affected the defendant or other parties, and that no one was bound to answer to matters tending to implicate another in a criminal charge.

Mr. Leith followed on the same side, and urged the points dwelt upon by his leader, contending that this lemurrer was founded upon two well-established principles of equity, viz. that no party was bound by his answer to criminate himself or any other person, and that a witness could not be made a party to a bill of discovery. The learned counsel further proceeded to argue, that it was necessary for a party to come into a court of equity (as usually expressed) “with clean hands:” whereas it here appeared upon the face of the bill, that the complainant himself had given ample provocation, and had in fact commenced hostilities by publishing gross libels against this very defendant.

Sir E. Ryun. That appears upon the face of the bill no further than this, - that you have accused him of it in your own libel!

Mr. Leith then urged another point, viz. that the party was bound to deny solemnly all the charges against him contained in the libel of which he complained: otherwise it would not appear but that a plea of justification might be put upon the record in the action at law ; and proved ;—in which case no bill of discovery could aid him a jot. Now the charges contained in the alleged libel were not denied by the complainant, and the charges, therefore, must he assumed as true.

Sir Edward Ryan. That position would be good, where the party libelled sought for a criminal information against the libeller, but the principle is quite inapplicable to the present case. The complainant is not prejudiced by omitting to traverse the truth of the charges.

The Court then directed the attention of the complainant's counsel to the dilemma in which they appeared to be placed.

The Advocate General said, that there was not only the authority of legal decisions in support of their side, but the express declaration of an Act of Parliament. By the 38 Geo. III. c. 78. s. 28, it was expressly enacted, that in all cases where bills were filed for the purpose of discovering the names of the proprietors or publish-" ers of any journal, or ascertaining other necessary matters in aid of an action at law for libel, it should not be competent for the defendant to plead or demur, but that he should be compelled to answer the matters required. Now he did not mean to say that this act expressly extended in India, but it amounted to a clear admission, by inference, that bills of discovery had been formerly entertained, and were not wholly unusual in such cases. Sir E. Ryan. It seems to me merely to narrow a right cn the part of the defendant, which formerly existed : Mr. Clarke followed on the same side. The learned counsel took a new ground of argument with reference to the above cited Act of Parliament, and contended that although the act itself did not extend to India, this court, sitting as a court of equity, would recognize the principle there laid down, because by the express provisions of the charter, it was empowered to decide according to equity and good conscience, and the practice was directed to be regulated according to the rules which were acknowledged, and acted upon at home. Now, it was clear that such a bill as the present would be entertained by the court of chancery at home, because, it would not be competent for the defendant to plead or demur, and the demurrer must therefore be overruled, The same principle ought to be acted upon here. Sir J. Grant. I understand this act to mean that the defendant, when interested, shall not shelter himself from a discovery upon the mere ground that such discovery may subject him to penal consequences.

Mr. Clarke. The act contains no such restriction, my Lord. It provides generally that the defendant

shall be compelled to answer, and he has no right to demur upon one ground more than upon another; whether it be his liability to penalties, or his competency as a witness at law. The object of this enactment is plain. It was, 'oubtless, occasioned by those disgraceful tricks to which the proprietors of journals (as in the notorious case of the John Bull) had recourse, in putting forward men of straw to become the scape goats for the most attrocious libels. There were exceptions to the rules that no bill of discovery would lie for torts, or against parties competent to be called as witnesses. In the first place, there were cases (reported in Vernon), where it was expressly laid down that a court of equity would entertain a bill in aid of an action in the form er delicto, as well as for actions er contractu. As to the other point there was one instance where witness was compelled to answer to a bill of discovery in a matter relating to canal-tolls, and another where a factor was compelled to answer, although a real principal was concerned. Now it might be said, perhaps, that these cases arose et necessitate rei, and were mere exceptions to the general rule, inasmuch as the witnesses, made defendants, were the only ostensible parties. But the present case was fully as much an exception, and presented peculiar features which justified a modification of the general rule.

Sir Edward Ryan. I retain my former opinion, and I have no doubt whatever that such a bill as the present cannot be sustained. This is a bare question of law, and unconnected with any disputes which may exist between Mr. Macnaghten and Mr. Tandy. We are told that an action of libel is pending, but of this we can take no notice.

If the party answers this bill as it stands, he must, infalliby criminate himself. It has been ingeniously suggested, that the part relating to the defendant might be omitted; but this is impracticable. It is impossible for the defendant to answer the bill at all, without stating that he is connected with the paper, or otherwise interested so as to make him incompetent as a witness.

Again, no authority is shewn and I believe none exists, which contravenes the general principle, that such a proceeding is untenable in the case of a mere personal tort, whether the defendant be implicated or Inot.

The exceptions to the rule that a witness cannot be made a party to a bill of discovery, are founded upon peculiar circumstances, which have no sort of existence in this case. They are exceptions which only confirin the general rule.

As to the 38 Geo. III. c. 78, I must confess myself utterly unable to perceive the grounds of the learned Advocate General's inference. It appears to me to imply, not that such bills were formerly entertained but that such demurrers were formerly allowed. The other argument founded upon that act is inapplacable. If this were a mere matter of practice and procedure, it might be otherwise, but it is a question of general right. Besides it seems quite clear that even in England, this could not extend to the case of witnesses made defendants, because even if an answer, were obtained, it would not be evidence against a third party, and unless the act went on to make such answer legal evidence, the provision so far would be utterly nugatory. Possibly this very act, may have given rise to the present novel bill of discovery The demurrer must be allowed, and the bill stand dismissed.

Sir J. Grant concurred.

The Advocate General. I hope your lordship will not allow costs, to a party guilty of such gross libels.

Sir E. Ryan. We have no grounds before the court Mr. Advocate, for assuming that the allegations are libels.

Bill dismissed with costs.

Faiday, June 29, 1838.

Ramdhons Ghose, Representative or Mudden nours
Gnose, deceased, versus RamaNuNo Ghose.

Mr. Morton opened the pleadings. The plaint was on the common counts for money lent and interest, laying the promises both to the deceased and the plaintiff, The plea was non assumpsit.

Mr. Clarke stated, that this action was brought to recover the balance due upon a Bengallee instrument in the nature of a bond, given to secure a loan of Sa. Rs. 1,600. This was the case in which their lordships had discharged the rule nisi on Thursday, for the postponement of the trial, obtained on the alleged ground of the absence of two material wituesses for the defence. There was an order drawn up by the court under the new rules, compelling the other party to admit the execution of the instrument, in default of having appeared to shew cause before a judge at chambers against making such admission.

[blocks in formation]

| * Mr. Clarke in the course of the day suggested ** so
| point of practice though immaterial in this case, *.*.*.*. -
liad obtained a verdict.—that accordiug to rule (84) †:
plea rules, it was unnecessary to prove that the plaint t
the legal personal representative. That rule provio. that i.
sor in which the plaintiffsues shall not be consi"
issue unless especially denied.
The Court acquit scou.

« PreviousContinue »