Several witnesses were called on behalf of the plain-examination. Under these circumstances the learned tiff, and examined and cross-examined at great length. counsel submitted, that no unnecessary delay had been Among others, the alleged subscribing witnesses to the shewn. instrument were called to prove its validity; the defendant's counsel endeavoured to shew that their names had beed subsequently added.

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 defence was that the ship had been

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 failed in proving the genu-run on shore by fraud and design; and although unineness of the acceptance.

Mr. Clarke and Mr. Leith appeared for the defence.
Verdict for the defendant.

This case occupied the court the whole day.

The case in yesterday's report, entitled ". Thackeray," ought to have stood "Hullodhur Ghose v. Thackeray." Our reporter accidentally failed to catch the plaintiff's name.-Hurkaru, June 28.

THURSDAY, JUNE 28, 1838,

THIRD TERM.

(Before Sir Edward Ryan and Sir J. P. Grant.)

SCHNEIDER versus MORGAN.

This was an action upon the common counts for goods sold with which particulars of demand had been filed, stating that the plaintiff claimed the value of a buggy sold to the defendant. The plea was special, and stated that the chattel sold did not correspond with the representation of the seller. To this the plaintiff demurred upon the ground that the plea was had for duplicity, and, moreover, amounted to the general

issue.

derwriters 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 satisfactory to give the other side a full opportunity of procuring all the necessary evidence. The court however, would nor compel a commission to examine witnesses, unless the

defendants consented.

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

RAMDHONE GHOSE versur RAMANUND GHOST. 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 no 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 communication.

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 gomastah, and the court observed, that Mr. Clarke stated to the court, that after the intima-frequent attempts had been made latterly to postpone tions thrown out by their lordships, questioning the va-trials upon such vague grounds, Their lordships lidity of the plea, the defendant would, with the permis- would require a much more certain and substantial sion of the court, withdraw his plea, instead of risking foundation for such applications, A suspicion naturally an argument upon the demurrer. Upon the question of arose that the application was made merely for the purcosts, he submitted, that some allowances might reasonpose of delay. ably be allowed, on the score of the doubt and uncertainty in which the point had appeared to be involved, and that the amendment, therefore, might be allowed t without costs, the costs to abide the event of the cause.

Sir Edward Ryan said, that the court would permit the plea to be withdrawn and amended, but that there was no ground for refusing costs to the plaintiff. The cases relied upon by the defendant, had been clearly and expressly overruled.

Leave to amend on payment of costs.

Rule discharged with costs.

MACNAGHTEN versus TANDY.

This case being called on, the counsel for the defendants were about to support their demurrer, when the court observed, that they wished to hear the complainant's counsel first in support of the bill.

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 JOHN REVELEY v. BENJAMIN HARDING AND OTHERS.him for a discovery of the names of the proprietors of The Advocate General, shewed cause against the rule the said paper, in aid of an action at law about to be nisi obtained by the plaintiff in this case for entering up brought against them for certain libels contained in that judgment as in the case of a nonsuit. The action was newspaper. There were several grounds stated in the brought against an insurance office for Co.'s Rs. demurrer, but the chief grounds were that the bill 12,600. This plaintiff was resident at Penang, from sought a discovery which would subject the defendant which place the ship sailed, and where she had been to pains and penalties, contrary to the principles reinsured. The vessel was wrecked at Cochin, and the cognized by courts of equity, and, moreover, that the owners now claimed for a total loss. A Mr. Philip and defendant himself might be examined as a witness at Mr. Morton had been material witnesses to prove the law in an action of libel against the proprietors, and plaintiff's case; the former had sailed from Calcutta, that he was not subject, therefore, to a bill of discovery. and the latter was dead. There were other persons at Sir J. Grant suggested, that the learned counsel Penang, capable of giving important evidence, and it might confine himself to the former point, as it appeared

The Advocate General submitted, that there was no Mr. Leith followed on the same side, and urged the ground for the objection. It was only stated, that an points dwelt upon by his leader, contending that this action was about to be brought against the proprietors, lemurrer was founded upon two well-established and the defendant was not necessarily included in this. principles of equity, viz. that no party was bound by There was nothing whatever to shew that the answer to his answer to criminate himself or any other person, and this bill would attach criminality to the defendant. that a witness could not be made a party to a bill of Besides, there was no possible object to be gained by discovery. The learned counsel further proceeded to calling upon him to acknowledge himself responsible as argue, that it was necessary for a party to come into a proprietor, because he was already amenable as the court of equity (as usually expressed) "with clean avowed editor. But, even admitting for argument's hands:" whereas it here appeared upon the face of the sake, that part of the discovery sought in the bill ex-bill, that the complainant himself had given ample protended against the defendant himself, and afforded a vocation, and had in fact commenced hostilities by pubground for the objection that he was not compellable lishing gross libels against this very defendant. 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 E. Ryan. 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 Sir Edward Ryan. There certainly is some distinc-him contained in the libel of which he complained: tion, by the manner in which Mr. Advocate General otherwise it would not appear but that a plea of justificahas ingeniously shaped his case. The court now wish tion might be put upon the record in the action at law; to hear the opposite side upon the other main point and proved;-in which case no bill of discovery could taken in the demurier. 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 informa tion 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.

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

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 proprie. The Advocate General said, that there was not only tors of this paper :-then, why was not an action the authority of legal decisions in support of their side, brought against Mr. Mansell and Mr. Tandy sub- but the express declaration of an Act of Parliament. poenaed as a witness to prove the proprietorship? No By the 38 Geo. III. c. 78. s. 28, it was expressly enactauthority could be shewn for making a witness defend-ed, that in all cases where bills were filed for the purpose ant in an equity suit for the mere purpose of obtaining of discovering the names of the proprietors or publishbis evidence; and, indeed, if such a principle were ers of any journal, or ascertaining other necessary once acknowledged, it would lead to endless abuses. matters in aid of an action at law for libel, it should not Every one was liable to be sub, cenaed as a witness; be competent for the defendant to plead or demur, but but was every one therefore compellable to answer a that he should be compelled to answer the matters rebill of discovery? Besides there were no grounds al- quired. Now he did not mean to say that this act exleged how or why this party possessed any knowledge pressly extended in India, but it amounted to a clear adupon the subject, or enjoyed peculiar opportunities of mission, by inference, that bills of discovery had been procuring information. It was true, that he was editor formerly entertained, and were not wholly unusual in of the paper in question, and as such employed in the such cases. 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 counsel took a new ground of argument with reference Mr. Clarke followed on the same side. The learned bill was (as it were) shot into a mob, and the com- to the above cited Act of Parliament, and contended that plainant might go on in the same manner from party to although the act itself did not extend to India, this party, until he succeeded in hitting upon some one court, sitting as a court of equity, would recognize the capable of giving him the desired information. But, principle there laid down, because by the express profarther, the learned Advocate General had considered visions of the charter, it was empowered to decide accordthe former objection upon two narrow grounds. There were authorities to show that no bill of discovery would ing to equity and good conscience, and the practice was lie in aid of any criminal proceedings, whether the de- were acknowledged, and acted upon at home. Now, it directed to be regulated according to the rules which fendant himself was implicated or not, and that it was very questionable whether it could be supported for any tained by the court of chancery at home, because it was clear that such a bill as the present would be entertort whatsoever. These positions were laid down by would not be competent for the defendant to plead or Lord Langford, the master of rolls, in a recent case demur, and the demurrer must therefore be overruled. reported in 1 Keen's reports, Glynn v. Houstoun, where The same principle ought to be acted upon here. the bill was in aid of an action for false imprisonment against the Governor of Gibraltar. So in Caxtom the defendant, when interested, shall not shelter himself Douglas, 16 Vesey Junior, it was laid down, that it was from a discovery upon the mere ground that such dis 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

Sir E. Ryan. It seems to me merely to narrow a right on the part of the defendant, which formerly existed!

Sir J. Grant. I understand this act to mean that

covery may subject him to penal consequences.

Mr. Clarke. The act contains no such restriction,

FRIDAY, JUNE 29, 1838.

shall be compelled to answer, and he has no right to demur upon one ground more than upon another; whether it be his ability to penalties, or his compe- RAMDHONE GHOSE, REPRESENTATIVE OF MUDDENMOHUN tency as a witness at law. The object of this enactment is plain. It was, doubtless, 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 Mr. Clarke stated, that this action was brought to relie for torts, or against parties competent to be called as cover the balance due upon a Bengallee instrument in witnesses. In the first place, there were cases (report- the nature of a bond, given to secure a loan of Sa. Rsed in Vernon), where it was expressly laid down that a 1,600. This was the case in which their lordships had court of equity would entertain a bill in aid of an ac-discharged the rule nisi on Thursday, for the postponetion in the form ex delicto, as well as for actions ex con-ment of the trial, obtained on the alleged ground of the tractu. As to the other point there was one instance absence of two material witnesses for the defence. There where witness was compelled to answer to a bill of dis- was an order drawn up by the court under the new covery in a matter relating to canal-tolls, and another rules, compelling the other party to admit the execution where a factor was compelled to answer, although a of the instrument, in default of having appeared to shew real principal was concerned. Now it might be said, cause before a judge at chambers against making such perhaps, that these cases arose ex necessitate rei, and admission. 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.

GROSE, DECEASED, versus RAMANUND 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.

Sir E. Ryan said, that the order was incorrectly drawn. The rule in question, R. 59, gave no power to compel the admission of any document, but merely allowed a discretion with respect to the costs of proof, in the

event of a refusal to admit the execution.

Mr. Clarke said, that the order had certainly appeared

prove the instrument in the regular way.

Sir Edward Ryan. I retain my former opinion, and I have no doubt whatever that such a bill as the pre-to him inaccurate, and he was prepared therefore to sent 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

not.

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 confirm the general rule.

instrument and consideration were proved, also the fact The subscribing witnesses were then called, and the that the plaintiff was the only surviving son. The sum of Rs 838 were allowed by the plaintiff, as having been paid on account of interest, and a verdict was taken for the balance,

Verdict for the plaintiff.•

SHAIK BENGALLY, BUTCHER, versus SHAIK PEER ALLY. Mr. Leith opened the pleadings. The plaint was for goods sold and money leat.

Mr. Clarke stated the plaintiff's case. Part of the claim was for the principal and interest of a loan, and the remainder for the value of certain cattle sold to the defendant. Witnesses would be called to prove the transactions, and an admission of the debt on the part of the defendant, coupled with a promise to pay.

Evidence was given to shew that the parties had agreed to settle their money disputes, that they met at defendant's house, and that the defendant eventually agreed to pay Rs 1,600. A written statement of the court was intended to have been drawn up on the following morning.

The Advocate General (with whom was Mr. Prinsep) for the defence contended, that this could not be receiv

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 ared as proof, since it was clearly nothing more than an gument founded upon that act is inapplacable. If this were a mere matter of practice and procedure, it attempt to compromise the threatened action, and was an offer made merely to purchase peace. might be otherwise, but it is a question of general right. Besides it seems quite clear that even in England this Sir Edward Ryan thought that it was evidence, and could not extend to the case of witnesses made defend-conclusive unless the other side could rebut it. ants, 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.

Verdict for the plaintiff for Rs 1,600, each party paying his own costs.

SYED MERAH versus ABDOOL GUNNEE.

action upon the common counts. The plea was the Mr. Barwell opened the pleadings. This was an general issue.

* Mr. Clarke in the course of the day suggested as a general point of practice though immaterial in this case, as the plaintiff had obtained a verdict,-that according to rule (34) of the new plea rules, it was unnecessary to prove that the plaintiff was character in which the plaintiff sues shall not be considered in the legal personal representative. That rule provides, that the issue unless especially denied.

The Advocate General appeared for the plaintiff, who

is a Mabommedan trader. Se eral commercial transactions had taken place between these parties, and the plaintiff claimed the sum of Rs 2,064, as the balance due to him..

After a lengthy examination and cross-examination of witnesses on both sides, it was agreed, at the suggestion of the court, to refer all matters in difference between the parties to arbitration, the costs of this action and of the award to be in the discretion of the arbitrator. The Advocate General and Mr. Barwell for the defence.

Referred by consent.

RRAMTOONOO SEAL versus BISUMBER DHur, Heir and
REPRESENTATIVE OF RAJKISSEN DHUR,

Mr. Clarke and Mr. Leith appeared for the plaintiff.
The claim was for Rs 2,125.

The defendant had put in an appearance, but had not pleaded, and now appeared in court personally, to con fess the action.

Verdict for the plaintiff.

The chief justice intended that he should sit alone to-morrow (this-day) at eleven o'clock, to take common motions.-Hurkaru, June 30.

SUDDER DEWANNY ADAWLUT.

JUNE 5, 1838.

(Before J. R. Hutchinson, Esq. Judge) A petition was presented for an appeal by a party to a suit tried before the judge of zillah Tirboot.

the Bengal presidency, petitioned the commissioner against the collector of that zillah.

The petitioners stated, that the collector in question had iu one day decided the cases respecting their lands against them, and that they had subsequently petitioned the collector for official copies of the decisions passed by him on their cases, which he had refused to grant on the plea, that by the time these documents could be furnished to them, the period of three months allowed by the regulations from the time of the decisions being passed in their cases, to file their appeal to the superior court would expire.

The petitioner stated, that a person named Shibchunder, who resided within the district of Tirhoot, had become security to another person for the payment of a debt due to him by a third party. The original debtor having failed to pay this debt when it became due, the creditor sued both the debtor and his security for the amount, and, having obtained a decree in the zillah court of Tirhoot, he seized some lands and houses for the execution of his decree, situated within the jurisdicOn perusal of those petitions, the commissioner, direct tion of the zillah court of Dacca, as the property of Shib-ed a precept to be despatched to the collector, desiring chunder the security. The petitioner admitted that these him to forward to the superior court his replies to the lands and houses had been formerly the property of charges instituted against him by these petitioners. The Shibchunder, but he had sold them to the petitioner collector thereupon made his return, in which he statedlong previous to his becoming security for the debt, for that he conceive that the period of three months allow, the liquilation of which they were now seized. He fur-ed to any dissenting party from his decision to appeal to ther added, that he was a resident within the district of the superior court, commenced from the date of the deDacca, and consequently not amenable to the jurisdiction of the court of ziliah Tirhoot. He therefore prayed the Sudder Court to reinvestigate the merits of his case, and order the replevin on his lands and houses to be with

drawn.

The vakeel of the party who had seized these lands, &c. as the property of Shibchunder, replied that at the time that Shibch under became security for the payment of the debt for the realization of which the property which this petitioner claims to be his, had been seized, he had represented to his client that the property in question was his, and it was on this very property that his client had consented to accept the security of Shibchunder. The judge was of an opinion, that there were sufficient grounds to admit the appeal to be heard, and it was ordered to be registered accordingly.

JUNE 4, 1838.

cision of their case and not from the time when the order passed by him was engrossed and ready for transcription, as these petitioners conceived it to be, and consequently as three months would expire from the date of his award in their cases, before they could obtain copies of the documents they required, and file their petition of appeal before the superior court, he had declined furnishing them with official copies of these documents.

After the receipt of this return of the collector to the precept directed to him in this case. Mr. E. R. Barwell, the commissioner of the Sudder Special commissioner's court, took up the matter pending on these petitions, and after he had carefully perused the petitions and the collector's reply to the charges urged against him or them, he decided that in his opinion, the period of three months allowed to a dissentient party to appeal from the award of the minor court to the Sudder Court, commenced from the date on which the orders on their cases were ready for transcription, and directed the collector to furnish the documents required by these petitioners..-Hurkarų,

(Before E. R. Barwell, Esq. Commissioner.) Several proprietors of lands in a zillah appertaining to June 15.

MAY 15, 1838.

SUDDER REVENUE BOARD.

THE SETTLEMENTS TRANSFERRED TO MR. Lowis. The secretary to Government in the revenue depart ment, informed the secretary to the revenue board, hat the Government had at the suggestion of the reve

department to Mr. Lowis, as a temporary measure, and desired the members of the revenue board, to put him in immediate possession of it, as this measure would enable Mr. Tucker, now in charge of this department of the business, to resume his usual business at the board, and thus supply the vacancy occasioned by the absence of