said bill, was an indictable offence." Now, either this is a statement of the law first introduced into the demurrer, and a statement of something with respect to the libel, which the defendant has given himself the trouble of making out by contemplating what the law is as applicable to the matter stated in the bill, or rather to the matter contained in the declaration upon which the action is brought; or it is, on the other hand, an allegation, that in the bill itself the passage in question is stated to be a defamatory libel. This part of the demurrer, therefore, as it appears to me, reduces the question to this point; whether, because the cause of action is the publication of what is alleged to be a defamatory libel, if an action be brought on account of that defamatory libel, the defendant in the action shall not have the benefit of the proceeding by discovery and commission, or either of them, to defend himself at law, though the law of the country has said and declared, that he can most effectually defend himself by proving the matter of the alleged libel to be true. Mr. Macaulay further says:-" And for further cause of demurrer this defendant showeth, that the discovery and commission sought by the said bill, appear on the face of the said bill, to be sought for the purpose of enabling the said complainant to prove, on the trial of the said action, the alleged truth of certain pleas therein mentioned to have been pleaded by the said. complainant to the said action, but which pleas are not in the said bill set forth with sufficient distinctness and particularity, to enable this court to ascertain, whether the discovery and commission sought by the said bill are material to the defence of the . said actions." This must depend entirely upon the opinion which the court forms on reading the bill; and I confess, that after reading the bill, and considering the allegation in it, this cause of demurrer seems to me to fail.

The demurrer proceeds to say: "And for further cause of demurrer, as to so much of the said bill as seeks any discovery touching the matters contained in the libel or statement therein set forth, and whereupon the said action is founded, this defendant showeth, that such matters appear on the face of the bill to be of a scanda

lous and defamatory nature against this defendant, and imputing to him moral turpitude, and as to the residue of the said bill," &c. Now our forms have always said, that we cannot look into the bill, to see what is the residue of the bill. Here, therefore, would be an objection in point of form. As to the residue of the said bill, the demurrer proceeds; "this defendant showeth, that it doth not appear on the face of the said bill, that the witnesses, whom the said complainants seek to examine under the commission thereby prayed, or any or either of them, were or was resident in this country at the time of the publication of the libel or statement in the said bill mentioned." Now, upon this point, it has been said, that, according to the doctrines of the Court of King's Bench, if application were made there for a commission, these plaintiffs would have to show that their witnesses were in this country, when the libel was printed. That amounts to holding, that a man must be prepared with his witnesses at the moment he publishes the libel, and that he must keep them here, until the person, who has a right to complain of that libel, shall think proper to avail himself of his legal remedy. I cannot, however, concur in such a doctrine; and upon that ground, therefore, I apprehend this demurrer cannot be maintained. It is true that the demurrer adds in the alternative,-" or have or hath at any time since such publication left this country, or gone into other parts beyond the seas." Then I say in answer to that, that if the libel relates to transactions which took place in many distant parts of his majesty's dominions, or in other foreign countries, and if the allegation in the bill be, that you cannot go to trial without bringing the persons from' those foreign countries, and that Mr. Macaulay wished to drive on the trial of the cause, because he knows you must stand in need of that sort of testimony; I cannot conceive the necessity of inserting in the record an allegation that these persons have gone abroad, when it may be that nine tenths of them have not been

here.

Such are the grounds of demurrer alleged by the defen lant. Now the first of these causes is to be taken to be this, that

the plaintiffs have not shown any right or title to a discovery, or to a commission or an injunction; and we ought to consider it as if the matter were not libellous, but were matter proper for the jurisdiction of this court in cases where it aids defences to actions. Now, putting aside all the reasoning that applies to the particular nature of the matter, of which a discovery, and as to which a commission is required; what is this bill,but that which has been a case within the jurisdiction of this court ever since I knew any thing of it,-namely, that when a man brings an action at law, he can in many cases have the aid of this court to enable him to maintain that action? Equal justice must be done; and if a man wants aid in order to make out his defence, justice must not be denied to him any more than it would be denied to a plaintiff. Here an action is brought by an individual against me for an injury which he says I have done to him; a plea is put on the record, which avers that I can prove by witnesses, who, though they cannot be brought here, may be examined by commission abroad, and that I can prove by discovery if it is given, that no injury whatever has been done to you; and therefore, with a view to ascertain whether any injury has or has not been done, there must be an investigation by discovery on oath from you, and by the examination of witnesses under a commission, whether the matters in question are or are not true; for if they are true, the law says that no injury has been done to you, whatever injury may have been done to the public.

Then it is said, that this is carrying the matter a great deal further than it has ever been carried before. I do not think that is the case. I agree with the Vice-Chancellor with respect to those cases, to which he alludes in the case of Macaulay v. Thorpe. In the first of these cases, the House of Lords appears to me to have gone upon this-not that it was a case in which, if all the circumstances had been such as would call on the Court of Exchequer to have exercised the jurisdiction which it was asserted to have, they would have reversed the judgment of the Court of Exchequer-but because they were of opinion, that upon the record and upon the pleading, it was

not such a case. In the case of Cojamaul v. Verelst, the defendant in equity was charged with false imprisonment, and with cruel treatment of an individual, in his character as governor of one of the British Colonies for which he might have been impeached. An action was brought against him, and he says, "There is no cause of action; what I did, I did righteously, I did it in a way which you have no reason to complain of."

The case of Fabrigas v. Mostyn,* before Lord Mansfield, was the case of as gross a tort as can well be conceived. He observed that it was no objection to the trial of such an action in England, that it involved questions with respect to the law of Minorca: "For," says he, "the way of knowing foreign laws is, by admitting them to be proved as facts; and the court must assist the jury in ascertaining what the law is." And he adds as a general rule-" It is a matter of course in aid of a trial at law, to apply to a court of equity for a commission and an injunction in the mean time; and where a real ground is laid, the court will take care that justice is done to the defendant as well as to the plaintiff."

The cases are infinite in which this court deals with torts; take almost all the cases of policies of insurance, which have been very much misunderstood in Westminster Hall. We know perfectly well, that, in the early period of our jurisdiction, the actions on policies of insurance were separate against each underwriter; but the Court of King's Bench applied a remedy, as they thought, to the inconvenience, by making the party consent to what is called a consolidation rule; and they put off trial after trial, until all would agree to be bound by the result of one trial. Then what was the usual course taken by those who were to defend themselves? In some instances they asked for a commission in the Court of King's Bench; but it was and probably is, the ordinary practice to go into the Court of Exchequer and file a bill for a discovery of all transactions abroad, and in some instances for a commission, The consolidation rule considering all as one in the Court of King's Bench, the Court of Exchequer said, "you being in substance

and fact the only party in the Court of King's Bench, we will consider that action against each and every one of you, as an action against all of you, and we will compel a discovery." What was the discovery in those cases? Frequently of the most fraudulent torts, with respect to the loss of ships and cargoes, that could possibly be stated. It would be a difficult thing to say, that actions could not be brought upon various other grounds, besides those upon which the underwriters sought to be relieved from the obligation they entered into on creating the policies of insurance. Supposing one ship runs down another ship at sea, which is a very great injury, the owner of the ship, who supposes that he has a right to complain, brings an action for damages; and he brings the action at the time, when the ship, that is represented to have run down his, is abroad, and the owner of that ship, who is liable for the damage occasioned by his mariners' conduct, cannot have the testimony of the master of that ship, or of any of the mariners on board of it, as to what were the actual facts of the case. Would not the defendant in such an action be entitled to a commission, to give him the benefit of the evidence of witnesses, who might displace the whole grounds of the action? Suppose, for instance, that Mr. Wakefield had made an assault on Mr. Garratt; that Mr. Garratt brought an action against Mr. Wakefield for the assault; that Mr. Wakefield had pleaded that Mr. Garratt assaulted him first; and that Mr. Wakefield came here, stating that Sir Giffin Wilson and Mr. Sugden, who were present at the time of the affray, but were now abroad, could prove that first assault. The assault is a crime; yet will any body doubt but that in a case of that kind, this court would say, "Mr. Garratt, you must not go so fast; you must wait till those gentlemen who were present at the time, come back, so that we may see what is the real truth of the matter." Such cases may be multiplied over and over again; and, 1 confess, I cannot get out of them. Looking at the various transactions in which this court exercises jurisdiction, if you exercise the jurisdiction in one case of the sort, you must extend it to another. I therefore cannot help

thinking, there is no doubt about the commission.

The next question is with respect to the discovery. Now this is not a case that goes to penalties or forfeiture; and although a party may refuse to answer any question that has a tendency to criminate himself, (I say not only the question, the answer to which might directly criminate himself, but the answer to which may be in the course and direction to criminate him), yet this court does not say, that in such a case there is an end of the jurisdiction. Though it does not compel the party to answer, yet, as in the case of Parkhust v. Louten, the suit goes on; for the facts may be proved by evidence.

With respect to the question of moral turpitude, reference has been made to the doctrine laid down in Mr. Phillips' book on evidence. "The last case to be mentioned on the subject" says that learned author, "is, where a question is asked, the answer to which has a direct tendency to degrade the witness' character, though it may not subject him to a criminal prosecution." The words, it must be observed, are not, "The answer to which has a tendency," but "The answer to which has a direct tendency" to do so. Then, after stating the different opinions which have been held on this subject, comes the following passage: "With respect to other witnesses, the best course to be adopted both in point of convenience and of justice, is to allow the question to be asked, at the same time allowing the witness to shelter himself under his privilege of refusing to answer, and, if he refuses, to leave it to the jury to draw their own conclusions as to his motives for such refusal." For my part, I never could agree to the proposition, that a witness may be entitled to refuse to answer a question, and yet the jury are to deal with him as if he had given an answer degrading to his character. The rules are established for the benefit, not of the witness, but of society; and if the question is one which ought not to have been asked, no inference is to be drawn from a man's declining to answer it. The cases, which Mr. Phillips afterwards enumerates, are all cases of questions, not

+ Parl. I. c. 8. p. 278, 279, 280, Fifth Edition.

merely involving moral turpitude, but relating to criminal acts, or what would be evidence of criminal acts. But if we are to say, that a defendant is not to answer in this court questions which merely degrade him in moral character, without exposing him to any forfeiture or penalty, what is to become of nine tenths of the proceedings in equity? There is scarcely a bill filed, which does not contain imputations of fraudulent conduct.

In the present case, however, I am not bound to decide as to whether a defendant must answer to questions involving matter of moral turpitude. This is a demurrer to all the questions in the bill, and, therefore, the point is-Are there no questions in it, which can be answered without degradation to moral character, and which have not such a connection with other questions as to have a tendency to bring out criminality? There clearly are such questions; and, therefore, the demurrer must be over-ruled.

July 19.-Mr. Sugden moved for an injunction to stay the trial of the action.

The injunction was granted.

Dec. 20, 1824.—A demurrer to a bill for a discovery and a commission in aid of the defence of an action for libel being overruled, a commission to examine witnesses abroad will be granted, before answer, though the defendant in equity denies by affidavit, the truth of the justification pleaded at law.

Quære-Whether,

Quære- Whether, according to the strict practice of the court, affidavits can be read in opposition to the motion for a "commission?

After the demurrer had been over-ruled, Mr. Macaulay filed long affidavits, which denied the allegations pleaded in justification at law, and set forth in the bills, and which gave detailed explanations of those transactions to which the passages charg ́ed as libellous were supposed to relate.

The affidavits then stated, that the defendant had been actively engaged, (chiefly in connexion with different societies) in

promoting the abolition of the slave trade, the amelioration of the condition of slaves in the West Indies, and the gradual abolition of slavery in his majesty's West India colonies; that by such exertions he had excited great prejudices, and violent irritation and hostility against himself, on the part of various persons, and more especially of persons resident in the West Indies, who are, or conceive themselves to be, interested in the continuance of slavery; that the alleged libel was part of a systematic plan which had been long carried on for injuring the defendant's character, on account of the part which he had taken against slavery and the slave trade; that he had frequently observed in the newspapers and almanacs published in the West Indies, false and scandalous libels on his character; that in all the newspapers published in his majes ty's colonies in the West Indies, and on the continent of South America, a violent spirit of hostility had long prevailed against the defendant and such other persons as had taken an active part on the same side with him in the aforesaid matters; that in these newspapers he and they were habitually slandered; that it appeared from the Jamaica newspapers, that, in December 1823, the House of Assembly in that colony, roted a sum of 1000l. to be remitted to the colonial agent in this country, for the purpose of being employed in conducting the controversy respecting slavery; and that similar votes had been passed in others of his majesty's West India colonies. The defendant further swore, that there were persons resident in this country, by whose testimony the truth of the matters in issue might be ascertained; that, although there were not any witnesses residing in the West Indies or at Sierra Leone, whose testimony, if true, would enable the complainants to defend the action at law, or to prove the pleas, therein pleaded; yet the defendant, in consequence of the prejudices, irritation and hostility, prevailing against him in the West Indies, could not safely trust his charecter upon trial on evidence to be procured there by commission; and the rather because he did not believe, that he could in the West Indies obtain commissioners or agents to execute or attend the execution of such commission, who would be willing

to encounter the danger and obloquy to which a faithful execution of their duty would expose them; and because he was advised that it was doubtful, whether a witness giving false evidence under such a commission, could be indicted for perjury there; and because if such an indictment for perjury would lie and were preferred in the West Indies against a witness giving such false evidence, the prejudice, hostility, and irritation against the defendant, prevailing for the above-mentioned reasons in the West Indies, were so strong, that there would be no prospect of such indictment being found, or, should the same be found, of its being fairly tried.

The Solicitor-General moved, that a commission might issue in each suit to Sierra Leone, and the West Indies, and that the injunctions to stay the trial of the actions might be continued till the return of the commissions.

Mr. Sugden and Mr. Wakefield, appeared also for the plaintiffs.

Mr. Shadwell, Mr. Pepys and Mr. Garratt, were for the defendant.

Against the motion, it was argued, first, that the truth of all the statements, on which the right of the plaintiffs to a commission rested, was now denied upon oath. Secondly, that in the present case these commissions, in consequence of the circumstances stated in the affidavits, could not be fairly executed. Therefore it was inconsistent with the ends of substantial justice, that they should be issued.

On the other side it was contended, that the affidavits, though they had been read in order to enable the court to judge of the propriety of admitting them, could not be used upon the present motion. Mr. Macaulay's duty was to have put in his answer, and not to have filed affidavits; for he had no right to dispose, in the shape of affidavit, of the truth of the case relied on either at law or in equity by his opponents. Still less was it to be endured that he should, as he had done in these affidavits, utter the most libellous aspersions against the inhabitants and legislators of the West India islands. In truth, the motion was almost a motion of course.

December 20.-LORD CHANCellor.
I will not say, that it is impossible that

an affidavit can alter the rule of the court; but I will go the length of saying, that it will be difficult to make out that affidavits can alter that rule, where the party could have put in his answer. However, not being able to say that the thing is impos sible, I have heard the affidavits in order to judge of them.

If it were proved by the affidavits of third persons, that it was impossible that the justification could be true, there we should have at least a disinterested witness; but how can we act upon such a principle as this that a plaintiff at law, whose action of libel is met by a justification, shall come into this court to prevent, by means of his own affidavit, the examination of witnesses abroad in support of the defendant's case? There is no principle of jurisdiction, upon which the defendant's justification can be disposed of in that way. The law of this country has said, that, if a man brings an action of libel to which pleas of justification are put in, the plaintiff shall not do away with the justification by his own evidence. If there be any individual, upon whose mind there can be a strong influence, it must be that individual, who seeks in a court of justice compensation for the injury done to his character; and I can never establish the principle, that such a party shall prove his case by his own evidence.

22.-LORD CHANCELLOR.

After the long discussion, which took place upon the argument of the demurrer to these bills, my opinion was, that in a case of civil action for libel, I could not refuse to grant that species of commission which I take to have long been within the jurisdiction, and part of the law of the court, and which we have been in the habit of granting in other cases of civil action. And it appeared to me, that the decision of the House of Lords, in the case of Governor Verelst, sanctions the opinion which I formed, after weighing the subject most carefully and taking into account all the inconveniencies with which the issuing of commissions in such suits is likely to be attended. If the order over-ruling the demurrer is wrong, there are two ways of setting me right; the party, conceiving himself to be aggrieved, may either petition

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