Court Of Chancery, Monday...
LAWV RRPORT. -- - reumd ir.l uiini and proposedtoapI hm ttelaofthc case, arid it% general ponsonanee mith thle rules of this Court. They had been tOld that- a party could not comne h7e sr,on' aquestioraOF-Perso4ti fOrt, itui6pendent, of~~nleain Of the erty.in e Cases cited Proved,th.e cohntraty'y principle. Iloth o- n n f the cae i r" -were. quiestidns of personal tomrt.1he ap-' pal~mc i thPn orde rthcmCefirred tile ighbt-of the Co-ait, andi erpresslv Ofiatti.,d tl Odr Of-the Court for sending out a commission, and trurrSebrs intisi t aid3 Cvil artion. At any rate, the dle- mnswered fliu have Ibleeroverruled its bothcases, because the parties an~Ced thebliS. and the caulses' went an to appeal before the Heouse of cor~d.Thcaef "Lord AlloftAgit and another," in 2 Vreset,san, col Ot apply.' That. wasL' a bill of discovery brought to metanda,dmuz which Could Onlly-be grantet] u-pon the most ina. tote consid,erationitablt crcoqtAnces But so far from rasn d 1ing Rt te ie Lr adlk,in terms, de-. it'.wesitia riot,~~~~~;ation, thoughi *Thbe LORD CIA L.Rraa asgfrm Cwe'Re Pt-jt3s,~' in whickh Lr anfed laftr itg afro hrendeo ~ni~iisio ad ijuntio, ecause the de- nQtto e tkenby urpise-no tobe utin e.worse jtb5rjn StGDN ta thedpt'milHi otrsine wasn Rl mrea aocil p ssa etfo Phllh'ipn' Chomynof Evietlec," whrichr the rign aunceid to bexiatin "nOcIt thohgvea the reenasoatin,0 for therponer exerised by the so "(or hf King'sk B.Grenh in potponng tria onathe defet alow evidec, ~'tedefenatt e~endntaylaetime, bto apeedlyr willcnurt6be ofvetfr a r l d i i n r g r to tediscovery.f a s i pi a t o a t r w a ttieonsinequemnces Dite ast,cfrthgre the. riHt urga said to esthin rtlnee tolte defentlntsoulfaveianswe fred tersblltr~ an th a fe caseof withurriery, s astohe mightdhscovery,twhichhwould haveosubjectedsth duefentm of eany ptnerlttissio, bytt deeelin illg n to hanewe ver r Leokin regard tothe n disovnerofa oumt te fat, nof martte what thed bneqcared n oth ansllwitr minhiohe. The Curtedtid nto saow tlmas~edefndan shuld hav answeredthe avHbll as far asthercouldt with fty, as ledmigto thae sheltered hrment ofro the conrsie.e qoencs ofany ther excrission, byi d-erlbin tohnsejr.alcio,b -TheLosn CHNCgurOt apwavtcal t wthea case acofraiparty ciho had bee ch.sr asl-in atbillw linkely.ta Themisurtndid ant cajun upon im toaiiswr,b tit wasequite viable teaonth ofther side to Mr. SUG replen tothetgtnera argumeth wofl theothe d sidre,th an o te ankr 1' he xecbsuo the ts- wowerbyth jnuridcacution,b Whszst tla to eyto Cor ofevadawt ass easeacring hsirt tod feeings by, Pecuniary comipna o.Sil the party would not be without -remedy because Iemgthv criminal .information in the Court ,of Kings Benchi k.. r. 'xErlELDsupported the bill against thedsemrutrer. - The .2ecal.pdnciple of dize Court wasl in favour of thei bill. One of the .dimef heads of equitable relief wvas, discovery of evidence in aid of lrivil acttonx. - There were certain knowmm exceptidna. 'The -other idshudhave brough t thiis-case within these exceptions,, which wer chefl -orfitoes ndpenltis,and Castes of mandampts and inditmet, n wichthe our reuse tointerpose its authoritY. As topealtes,sse ase es-ork ynus" as in point,in which the lie. titotlr oul nt-aswr t te aplcatonof a sum of money wvhich comeint lii hnds,becusetheatmwer wouild suibject Ihim to The Loan CUIANCELLOfl said, that in that wae he did not at- tempt to compel Symes toan answer,beezauelhebheld the rule to be,not onlytb,mtthe partyshoutdriot answer"to afact upoir which theanswver 'would.subject hMm to indictment, but that-lie shouldI not answer toany thing tending remotely to that consequence. Symes, however, admiit. ted that lie had received the mioney ; and in respect for the just in. Screts of the creditors, he hield that Symes muist be treated as if he stRIl had the money, until hie gave some accountof its application. m'.WAVXEFIXELD said,tbat the ruile in "1Phillips's Evidence" was, t'hat a witness nmust renly, even to the defanmation of his owni cha7rac ter, if the question affects; directlv the matter in issue. l-Ie went on to cite a variety of cases in wlhicfi an action wouild lie for personal lort, and in which theye could- be no evidence if discovery dlid not ailso? lie-;..-such as injury fromn an obstruction in the hsighwa7yat mid. aligbt, no ivitnesses beinig present the case of being iniured by dirinking bad wine ; the case of an~ injuiry by the hiteofadg 'which the owner knew to be affected, with hydrosihobia. He con- tended, thiat the demurrer was bad in principle, in formi, and in argu. inenit, atit ought not to be allowedl.- Air. ShAD WELL, in reply, said, that it was an observation made by Demosthenes in his celebrated struggle with JEschines, that he upon whomn was thrown the defence of another character, had a verv considerablebsirlen tosupport, by reason of the readiness with wvhico human nature listened to calumnies.Tbis remark was Particularly e4slicable to the present case. Assertions had found their way into thie proceedings, which not only were niot true, but for which, ihough %lsserted by the plaintiff and his counsel -to be true, it was utterly imosble that they could have any proof. His learned friend (Mr. Sugden ,for examiple, followloghis instruactionsi, no doubt,, haa de. dlared tkat MVr. Macaulay (lid ndt dare, and that he cou]ti not an- swer this bill, flow could heor. any othernman know that-fact from the proceedings? lr. Alacaulay had been directed by his counsel as to the course which had been taken, and thedy thiought-it most tirPper tbat he should first of all takce the opinion of the Court upon the question, whether or not he was to be compelled to ansiwertto a bill~ whichIb, if this demiurrer were to be over-ruled, would, on ac. counit of its -vexatio,irritating, and Kcandalous contents, convert the. right to a discovery into an intolerable abuse. If that -advice were wrong, he, as omie of the counsel w-ho proposed it, wa~s willingztoI ltake hisshareofth'eblame. But lr. Mllaulay was notin fault: for lie was anxioussop~t tan- an.swer inat once, tho-ugh,ani.tL-hi ordship a'ohld presently see, it was scarecly possible l'ora bill tobe framed more 'vnnsyInuos and vexatious. EN dsowed ny itenionof aspers ing Mr. Macaula-r. lie ad n! nferedfro th prceeing that Al r. Macaulay did Rot areantcoul. nt aswerthebil; ad he wosAld retract no part Mi'.STtAi WET.raid that he was satisfied-with his learned friend's explnaton:but at he iut, h fet that there was thlat degree of poigancyIn te maner f putingtheinferericd, that on hearing it, or o redingit tomthe ewsap~of this morning, it mnust have conveyed the verywosimrson to the mitnds of thousands, of fUr , facanlay's character and motives. The LOan) CIrANcIErLLO said, that it would bo a nice calcula- tion to discover how m ruch time was spent in end between every termn in refuting the samtements of newspiapemu fie remembered very well when he first trodl Westminster-.hall, that thte rule was, tibut Judg es-would only allow publication after both sides were fully heard and I me trial was over; and the reason they gave was, that by a publication of part of the proceedings o-nly, a party might be preju- -c,dIe in his character wvith those a'ho could never have the oppor- -usnity of reading what was said in his defence.- Mlr. S5IAD WELL said, that evil was mingled with good, in that overflow of publications with which this countcry abounded. Yet thb good predominated4 liecause it was plain we were great as a itation asnd a people, because public discussion was in every -way prmisotidd; -and we could not be that wbriih we are if-we did not publicly disc5msr. The LoRp CHANCELLO71.-Wishedt that the counsel would apply their language more pertinently to the matters on the record. He wras grcatly at a loss to apply muchi of what hiad been said on b-oth sides to the subject of this demurrer. A 151h 8S1ADWVELL admitted that some latitude had been taken in their observations. He -would, in what remnained for him to say, confine h-imself strictly to the conitents, of th6 bill. lIuch of it was such miatter as seemed to ha~ve been put in for ne-other purpoe than aggravating the force of the libellous vublication, while at the same time it was altogether incapable of beinig answered. AMr. Macaulay, for instance, was called upon, to say if he had ni6t been in the service of a. certain gentleman, and if he - was not thetn a needy man,- and if he was niot then a very 'active hsust]ing, enterprising, worldly-minde& roan, possessing relf'gion anitl p~hilanthropy h ut doing every thing with a view to his own inter. eas-ndifnot, "liowotherwsse?" (Laughter.) IHow comld Air. Illacaulay, or any other person, answer trmsly,wbether orntot lie was a very msaui,nn active Onan,apoe-igmnadgoorb fr vCy oeo hs adjectives occupied an equally important station an time sientence,...agreeably to the notion which the plaintiff might enteitaim of those characteristics? Then lie was asked if he hail slot considerable interestat one lime withithe Governor of a certain colonv, and if he did not thereby obtain tin influence over all the aflair7s of that colony ; indl if not over all the affairs, under lhow many 'of them, and - which affairs ? (Liaughter.) Then agains, he was to say, if in some articles which he supplied to the colonists 32 years ago, he had notcbarged them 100 per cent. upon nll the articles;- and if not uom al,uo owmn,ad htn if not upon any, how much hedid charge upon each of the-articles P TI'le Court mutst see at least that the-e questions never coould be an- swered ; and if they could, his Lordship rmust ask bini-elf.-What.the- answerx could-have to do with the facts put in issue by the action. -He -was preparedt to show, that in the greater part of the miatters, recorded- in the Jostification, the proofs might not only bJe batifnE3gleand, but'that theyrcouldm-otbhehad elsewhere- There ~vere accountsamid documnents which respected Mlr. Maceauhay's agency boths for the (Govemment and the Africanlitstitution. Why need they send out a commission to A fric-a and the Ur6st Indias, for papers which -.vre epoite inWhiehal?If this demfurrer were not allowed, it -weulhi soon be impossible for any man -to -obtain justice by bringing a tivil action.. That the application was without preedent was clear; the Court miustt seei that the case of an avwed libeller- -was one in whiich it would not be vecy becoming to furnish the first preceacent. Ife hoped thlat his L-ords ip would have snore regard fof. ie_genemal interests of justice tlitan to overrulje the demnurrer.- The'L 1Tdrt CuIANCELLOfl after a labjorioiig investigation of 'the .circumstances, said, that tile demurrer must be overruled. The'de. fenddrnt had ef his own choec-, he-~id not say improperly, fixed up. on zi civil.action for dArnages, hin preference either to a'criibial in. formation or gto indictment. The -Court was boundi to give the plain. tiff that proteictioji to which ever ubject of the state-had a claim withut istictin ofperons.tiedidnot think that the argunment I wss5oedas o th plintill'nothavng-ade his application to the Cour of in~s Bech i th firt istance.' - Why- should he 'di) so, henhpnueth itppoed u knw tat' his remnedy, which was,a cmmssi,n, oul-onl ti hs orginllyfrom thisjuii- thij~s 16itquie inCesarY its t verrilesgs There were mnany thij~sliiit uit unecesar, bt here were others which mnight be 'ed ought to beannawred. -nTere were several facts tvhichimighit, per'ha a, 'as - wOl be proved by witnesse at ho,me: thrwr severaN otbers-lnwh.nichtuiil*t csjra evidemice ai, im troad. Ile did not preiend t6 &dete~rte the artual tru-h.'or fals ellooed of the allegations;' and h-elfnost-pariticularly disownedi time idt-tetiorrof-impeachtng the veracdity or' moral ch arater'.o~-eirher Pslairidmifor- defendant.t All -that.-he-meant to' assert -was,- that- thie objections in the demuirrer a,gainst tbie coosmissiob isnd tlse.discovery, as well as that imateon thie gound of ~niistincfnest,.were-nbt ehouigh'to.s;ioport it, ahid-there- fore ~tle 'derrturrer musiit be over-rruled. Ai1r. JVA5tEFIEI~D said, that hisi-Lordship wouldI of course direct aro order for an injunction to- stity -trial at the same tilme. The Lo id.CUANCELLOJt- refuased any, bider, except to set asitle -the tesnurrer.-- ' -. - --- , _? T--?, -- -In sm.%rv- - .' ^