when having learned, as the fact was, that the witnesses by whose testimony the plaintiffs could establish and prove the se 邊 SHACKELL V. MACAULAY. A bill stating that two distinct actions for libel have been commenced against the plaintiff in equity, to which he has put in pleas of justification, and praying a discovery, and also one or more commissions to examine witnesses abroad in aid of his defence at law, is multifarious. The bill was filed by Edward Shackell, Thomas Arrowsmith and William Shackell, against Zachary Macaulay. It stated, that there had been in October and November 1823, and still was printed and published, a weekly newspaper, entitled "John Bull;" that towards the latter end of the year 1823, a controversy arose relative to the situation of the West Indian islands, and the slave population there; that the plaintiff, Edward Shackell, as the printer and publisher of that newspaper, engaged in such controversy, and published in the said newspaper divers articles of intelligence, arguments, and observations, in and about such controversy; that the defendant had been for many years actively engaged in divers societies, professing to have for their object the abolition of the slave trade, the improvement of the condition of the negro population of the West Indies and the civilization of the west coast of Africa; that the defendant took an active part in the above-mentioned controversy on the side opposite to that advocated in the said newspaper; and that in the course of such controversy, the plaintiff, Edward Shackell, printed and published, on the 26th October 1$23, a number of the newspaper containing a passage, which was set forth in words and figures; and on the 9th of November, another number containing also a certain passage, which likewise was set forth in words and figures. The bill then proceeded to allege, that Zachary Macaulay took no notice of these numbers of the newspaper till the end of January 1824, *This case, one of the most important in principle which has been decided for many years, came on in three successive stages. We have thought it better to give the whole in one continuous statement, though two of the stages of argument, and two of the decisions, were prior to this term. veral allegations contained in the before- justificatory pleas to the two actions. The E 2 without having one or more commissions for the examination of such witnesses. The prayer was, "that the defendant might make a full discovery of the matters aforesaid, and that one or more commissions might issue for the examination of witnesses residing on the west coast of Africa, or in the West Indies, or other parts beyond the seas, as to the several matters aforesaid; and that the plaintiffs might have the benefit of the testimony of such witnesses respectively on the trial of the said actions; and that, in the mean time, the plaintiff might be restrained by injunction from further proceeding in the said actions, and each of them, and from all other proceedings at law against the plaintiffs, or any or either of them, in regard to the matters aforesaid." To this bill the defendant, Mr. Macaulay, put in a general demurrer in the following form :-"This defendant, by protestation, &c. doth demur to the said bill, and for cause of demurrer showeth, that the complainants have not, in and by their said bill, shown any right or title to the discovery, or to the commission and injunction thereby sought; and for further cause of demurrer, this defendant showeth, that the discovery and commission by the said bill sought, relate to several distinct matters by the said bill alleged to have been pleaded by the said complainants to two several and distinct actions at law, in the said bill alleged to have been commenced by this defendant against the said complainants, and which several actions by the said bill appear to relate to several and distinct matters, and to be founded on several and distinct causes of action; and such several and distinct matters so pleaded by the said complainants to the said two several actions, ought not to have been joined together in one bill." Mr. Pepys and Mr. Garratt, appeared for the demurrer : The Solicitor-General, Mr. Sugden, and Mr. Wakefield, in support of the bill. The argument for the demurrer did not raise the general question, whether a bill for a discovery and commission in aid of a defence to an action of libel, could be sustained, but proceeded entirely on objections to the form of the pleadings. The first objection taken was, that the plaintiffs had prayed process against the defendant to stand and abide the order of the court; and that the bill thereby became a bill for relief: Rose v. Gannell.* This point was not decided. The objection principally relied on was, that the bill was multifarious, because it sought a commission and discovery in aid of two distinct defences to two distinct actions. The evidence obtained under a commission ought not to be published till the cause in which it was to be used came on to be tried; but if such a bill could be sustained, the depositions, which were to be used in the second cause, would be published at the trial of the first. In the case of Dew v. Clarke, † the court had lately allowed a demurrer on a similar principle. Mr. Sugden contended, that that inconvenience might be avoided, by issuing separate commissions in relation to the two actions, and having them returned separately. To do so would be quite consistent with the frame of the bill, which prayed for one or more commissions. Vice Chancellor.-That is impossible; and the form of the order shows it to be quite contrary to the practice of the court. The commission is to examine witnesses as to the matters in the suit; nor was there ever an instance of issuing one commission to examine as to one part of the allegations of the bill, and another commission to examine as to another part of these allegations. June 30.-VICE CHANCELLOR. In this case the defendant in equity, has brought two several actions for two several printed papers called by him libels, and said to have been published by the plaintiffs in equity. It is contended, that he might have joined both these causes of action in the same declaration. It may be so; hut that is not a point which I have occasion, in any degree, to consider here; for he has not thus joined these two causes of action, if he might have done so. He has thought fit to bring two separate actions, in each of which he is entitled to a distinct and separate defence. Το these actions the defendants at law have put in distinct pleas in justification; and they have now filed a bill for a commission for the examination of witnesses to furnish matter in aid of these defences, which they have put upon the record by their pleas. The question is, whether the principles or the practice of a court of equity will permit one bill to be filed for a commission, which is to furnish matter of defence in two distinct actions. As far as my experience goes, this is altogether an experiment. I have no recollection of any bill, ever filed for a commission to furnish matter of defence to two distinct actions; and I cannot but think this record has been framed without the oppor tunity of giving very strict attention to the difficulties and injustice which would grow out of such a course of proceeding, if it could be maintained. The commission, upon such a bill, proceeds upon an order of the court, authorizing certain persons to take evidence upon the matters contained in the pleadings; and the matters contained in the pleadings would necessarily be the whole matters referring by way of defence to the two distinct actions brought at law. Now the first consequence would be, that the plaintiff at law would necessarily be delayed in the trial of each action, until the defendants had been able to prepare themselves by testimony to defend themselves in both. This alone, it is plain, is great injustice, without proceeding further; but the injustice does not rest here. Suppose that the commission is returned, the testimony is not to be published until the action is ready for trial at law ; for the court does not permit the publica tion of testimony taken under a commission in aid of a trial at law, until the trial at law is to take place; and for this obvious reason, because the testimony taken on that commission may happen never to be used at all. If the witnesses come within the jurisdiction of the court, at the time of the trial, the depositions cannot be used; the witnesses themselves must be examined; the court therefore does not permit the testimony to be published before the trial, because it would furnish to the adverse party an opportunity of knowing previously what these witnesses would state, if they happened to come within the jurisdiction, and of shaping their defence accordingly : All which would afford a great temptation to perjury, and would defeat the ends of substantial justice. Such being the rule of the court, founded on clear principles, the consequence is, that all these depositions taken upon this commission would be published upon the first trial; then, before the second trial comes on, the parties, by reason of the former publication of the depositions, are in possession of the evidence by which the second action is to be met, and they are exposed to all that injustice, which it is the object of this regulation to prevent. It is said, that this inconvenience may be avoided, for the court may grant a distinct commission with respect to each distinct cause of action. The first inquiry is, whether that is the form in which these plaintiffs have shaped their case here; is this a bill in which they call on the court to grant distinct commissions with respect to the separate defence in each distinct action? It was said in argument that such is the form of the bill, because they pray that one or more commissions may be granted. When a bill prays one or more commissions, it does not mean one or more commission to be founded on a new principle or precedent, but one or more commissions according to the practice of the court; that is, if one commission cannot satisfy the whole justice of the case, then that there may be one or more commissions to other places, and so on; each commission comprehending all the matter alleged in the pleadings. Suppose, however, that this bill had been framed as the case is put in argu ment, would there be no injustice in granting two distinct commissions in respect of the separate matter which is to form the defence of the two distinct actions? According to the practice of the court, the moment the commission is returned, the party defendant in equity is entitled to his costs. The first commission is returned; what would be the case then? Would the party defendant in equity be entitled to his costs? No; for there would be a commission yet to be returned relative to the other action, and he could not have his costs until that commission was also returned. That would be obvious injustice. It is not alleged (unless it be in the under-writing cases which have been alluded to), that a court of equity has ever done any thing which in any manner approaches to the principle which is now attempted to be sustained in argument; and if in those under-writing cases, any thing similar has been done, I presume that the court must have been influenced by the particular circumstances of these suits, and therefore that what has been done in them, could hardly furnish a general principle. It is said, that if the court has never done what it is now asked to do, it is not too late to make a precedent. Now this court has been much too long established for any judge hastily to set about making a new precedent. If a precedent has not been found in favour of the particular practice which is proposed, the inference is, that the reason why no such precedent has been found, is, because it has been always thought inconsistent with justice; for this cannot be the first case which would have required such a precedent to be made, if the precedent could have been made consistently with principle. The non-existence of a precedent is a sort of declaration, that the proposed mode of proceeding would not be conducive to the general ends of justice. These are the views which I am obliged to apply to this case. I am of opinion, therefore, that the objection taken by this demurrer cannot be removed upon any consideration of the principles and practice of the court, and that a bill will not lie for a commission to examine witnesses in order to furnish a defence at law in two separate actions. Consequently, for the reasons I have stated, this demurrer must be allowed. If A. brings an action against B. for the publication of a libel, and B. puts in plea of justification, and afterwards files a bill stating the matters contained in the plea, and that the witnesses by whose evidence he could prove their truth are abroad, and therefore praying a discovery from A. of the matters so alleged, and one or more commissions to examine witnesses abroad; a general demurrer to such a bill cannot be sustained. In consequence of the opinion of the Vice-Chancellor upon the above-mentioned demurrer, the same plaintiffs filed two bills against Mr. Macaulay. The one of them was confined entirely to the libel of the 26th of October, and the other to the libel of the 9th of November. With this difference, they were each of them, in every respect, as to their allegations, interrogatories, and prayer, similar to that bill comprehending both libels, the tenor of which has been already stated, and to which a demurrer was allowed on the ground of multifariousness. To each of these bills the defendant demurred. The day fixed for the trial of one of the actions being close at hand, the Lord Chancellor ordered the trial to be put off till the demurrer was disposed of. Mr. Shadwell, Mr. Pepys, Mr. Brougham, and Mr. Garratt, were in support of the demurrer. The Solicitor General, Mr. Sugden, and Mr. Wakefield, were for the bill. : The demurrer was in the following form "This defendant, by protestation, &c. doth demur to the said bill, and for cause of demurrer shows, that the said complainants have not in and by their said bill, shown any right or title to the discovery, or to the commission and injunction thereby sought; and for further cause of demurrer this defendant showeth, that the discovery and commission thereby sought appear on the face of the said bill to be sought in aid of the said complainant's defence to an action therein mentioned to have been brought against them by this de fendant, for a defamatory libel by the said bill admitted to have been published by the said complainant, Edward Shackell, against him this defendant, the publication of which libel, as appears on the face of the said bill, was an indictable offence : "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, 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 action: but "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 scandalous and defamatory nature against this defendant, and imputing to him moral turpitude: "And as to the residue of the said bill, 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, or have or hath, at any time since such publication, left this country, or gone into parts beyond the seas: For which cause, &c." The demurrer put in to the other bill was in precisely the same form. In support of the demurrer it was contended, that a proceeding like the present was altogether anomalous and unprecedented; nor, (except in the still pending case of Thorpe v. Macaulay,* indeed might be regarded, in respect both of the parties and of the circumstances, as the same with that now before the court), 5 Mad. Rep. 218. which had it ever been attempted to harass and impede a plaintiff, who, to vindicate his character, was prosecuting an action of damages against a libeller, by making him a defendant in equity to a bill for a discovery and a commission. Considering how frequent such actions were-how embittered the passions of the parties in such cases generally were-how eager to avail themselves of every mode of harassing each other; is it credible that the records of the court would not have furnished numerous instances of bills like the present, if they were consistent with the fundamental principles of equitable jurisdiction? The non-existence of a series of precedents, where the daily transactions of life would naturally call them into frequent use, if they did exist, is the best proof, that a particular course of proceeding is not in accordance with the doctrines and practice of equity. man If bills like those which the plaintiffs here have filed, can be sustained, the whole law of libel is subverted. It is not enough that there should be means of punishing a libeller; what is of infinitely more importance to the injured party, is, that he should have the means of satisfying the world by the decision of a court of justice, that the scandalous imputations, which have been thrown out to the disadvantage of his character, are false. This he can do only by an action of libel; for there the libeller may plead that what he has stated is true, and prove the truth of it if he can ; and the doctrine of the law of England is, that no shall protect himself against a claim for damages in respect of a libel published by him, unless he can prove the truth of the matter complained of as libellous. But if the libeller can file a bill here for a discovery and a commission, the remedy at law is entirely nugatory; means of delay are put within his power, by which he may protract the refutation of his calumnies to an almost indefinite period. He has only to allege that there are witnesses resident abroad, by whose testimony he could establish his allegations; then the trial at law will be put off, till these commissions are issued, executed, and returned': in the mean time, the injured party stands in a worse situation than before he instituted proceed |