PROCEEDINGS BETWEEN, &c. CHAP. II. title deeds, or other documents, disclosing the parties to a title, or to a contract, or other proceeding, will refuse to produce them, and in such cases, after a courteous and proper formal application, it may become necessary to file a bill for a discovery and production of the document, in order to ascertain the proper party to sue and be sued, as well as the cause of action. Secondly, who was the wrong doer liable to be sued, and Secondly, although in direct injuries it might be supposed that no difficulty could exist as to the party to be sued, it is sometimes otherwise; and in cases of malicious injuries, they are tain the facts. frequently on purpose committed so cautiously as to render dis how to ascer covery of the real wrong-doer exceedingly difficult. And yet of necessity, in general, the sufficient discovery should be obtained before the commencement of any proceeding at law. In cases, whether of torts or contracts, after exhausting every other civil means of ascertaining who is the party liable to be sued, it should seem that a written advertisement, stating the injury and offering a reward for the discovery of the perpetrator, but taking care to avoid any libellous expression, would on principle be legal. (c) In the case of a libel in a newspaper, the proprietors are obliged to disclose their names and places of abode, by filing an affidavit at the Stamp Office; and the act declares that production of a certified copy thereof and of a copy of the paper, shall be received in evidence against them of their liability. (d) But that enactment does not extend to any person who is not the proprietor or publisher; and therefore to connect the former with the publication, endeavour should be had to produce the manuscript he delivered to the printer. (e) The Stage Coach Act requires the proprietors of a coach to paint thereon the names of the proprietors, and the inscription or plate is to be evidence against them. (f) If the printer of a libel promptly give up the original author, or discover the person who brought the paper to him, this is legally and equitably considered as ground of mitigation; (g) and in general it is advisable, (c) Ante, vol. i. 453, 4. (d) 38 Geo. 3, c. 78, s. 1, 2, &c. 9, 10, 11. Rex v. Amphlett, 4 Bar. & Cres. 35; 6 Dowl. & Ry. 125; Cook v. Ward, 6 Bing. 409; 9 Bar. & Cres. 382. In Mayne v. Fletcher, 9th May, A. D. 1829. K. B. Jones, Serjeant, moved for a new trial, and the Court held, that the production of any newspaper sufficed, under the 11th section of the Act, with on his payment of any costs out proof of the defendant's publication thereof; and per Bayley, J. It is only prima facie evidence, and the defendant may shew that some other person has published a false copy. MS. (e) Adams v. Kelly, 1 Ryan & Moody's R. 157. (f) 2 & 3 W. 4, c. 120; Barford v. Nelson, 1 B. & Adolp. 571. (g) Anon. 2 Atk. 472. BETWEEN, &c. already incurred, to abandon the proceeding against him, and to CHAP. II. proceed only against the principal wrong doer. In cases of PROCEEDINGS trespass or other tort, when the name of the wrong doer is not known, nor can be discovered after reasonable diligence, perhaps a bill to perpetuate the testimony of witnesses as to the right and injury, might be sustained. (h) In cases also of Contract, difficulties frequently arise as to the parties liable to be sued. In these cases of contracts, as well as torts, it is advisable to address a courteous letter to the party supposed to be liable, stating the right and injury, or cause of action, and requesting him either to make compensation, or if he decline so doing, then at least to disclose whether he and what others, requesting him to name them, were concerned in the injury, and intimating that in case he should decline explicit communication, then it will become necessary to file a bill of discovery; and that if, for want of candour, that proceeding should be rendered necessary, the costs thereof may fall on him. (i) And in case of his refusal or neglect, in some cases, it may be advisable to file such bill for discovery; and it should seem, on general principles, that unless the answer would take the case out of the Statute of Limitations, (k) or would subject the party to a criminal proceeding, or to a penalty or forfeiture,(/) he would be bound to answer, notwithstanding he might thereby sustain some pecuniary loss, or otherwise prejudice his private interests; (m) and a bill even for the discovery of usury or other illegality is sustainable after the time for prosecuting for any penalty has expired; (n) and the same rule prevails at law whenever the time for suing for a penalty has expired. (0) It has been expressly decided that a landlord may, by bill for a discovery, compel his tenant to disclose whether he has assigned a lease to an assignee, and to whom, in order to enable such landlord to sue the latter; though if the lease should contain any clause of forfeiture in case of assignment, it would be otherwise, unless the forfeiture be expressly waived; (p) and such a bill may also be filed against the original lessee, to ascer PROCEEDINGS CHAP. II. tain whether an old lease has not expired, (q) though it is said that as an assignee of a lease is a purchaser, he might demur to such a bill against himself. (r) BETWEEN, &c. Even a bill lies against a lessee and an equitable mortgagee by deposit of a lease, to compel the former to execute, and the latter to accept an assignment, so that the lessor might safely sue him at law, on the principle qui sentit commodum sentire debet et onus; (s) though this would in general be unnecessary, if such equitable mortgagee has taken possession, in which case he would be estopped from insisting that he is not assignee, unless he could prove that in truth he was merely an under lessee. (t) As respects the right to obtain a discovery of parties to be made defendants in an action, or of other facts, the general rule seems to be, that where the discovery is immaterial, (u) or where on the face of the bill, it appears there can be no remedy, a discovery would be merely impertinent, and would not be enforced. (v) But that where the bill avers that an action is brought, or where the necessary effect in law of the case stated by the bill, appears to be, that the plaintiff has a right to bring an action, (w) he is entitled to a discovery to aid that action so alleged to be brought, or which he appears to have a right and an intention to bring; (x) and it is not necessary that an action should have been brought previous to a bill of discovery, in support of an action, (y) though it was in one case said, that a bill of discovery does not lie to create evidence for a future cause. (z) But it has never been laid down, that a person can file a bill, not venturing to state who are the persons against whom the action is to be brought, nor stating such circumstances as may enable the Court to judge upon the right to sue, but must state the circumstances, and aver that he has a right to an action against certain named defendants or some of them. (a) Upon these principles a demurrer was allowed to a bill, which did not allege with sufficient certainty, by whom the duties claimed by (4) Tothill, 69; 8 Vin. Abr. 539; 1 Madd. Ch. Pr. 203. (r) 8 Vin. Abr. 550; Fonbl. Treat. (s) Lucas v. Comerford, 3 Bro. C. C. (1) Peake's Law Evidence, tit. Cove nant. (u) Redesd. Tr. Pl. 155, 6, 3d edit., and cases there mentioned, and 1 Madd. Ch. Prac. 198. (v) See Rondeau v. Wyatt, 3 Bro. C. C. 154; Finch. 36, 44; Redesd. Tr. Pl. 15; 1 Mad. Ch. Pr. 198. (w) Moodaly v. Moreton and East India Company, 2 Dick. 34; S. C. 1 Bro. C. C. 468; 1 Mad. Ch. Pr. 198. (x) French v. Finch, 2 Ves. 294; but see note (w), supra, and 1 Mad. Ch. Pr. 198, 9, contra. (y) Id. ibid. (*) 1d. ibid. (a) Mayor and Citizens of London v. Levy, 8 Ves. 404. the city of London under letters patent, in respect of which a discovery was prayed in aid of an action were payable; (b) though, if the bill had stated that by reason of combination, it was so managed that the plaintiff could not bring an action, and therefore there ought to be an account of the fees in a Court of Equity, such bill might have been sustained. (c) Formerly, in cases even of trespass no inconvenience resulted to the plaintiff from his unreasonably including too many persons as joint trespassers in an action, for the acquitted defendants had no remedy for their costs; and thence it became the practice perhaps, without any pretence whatever, to proceed jointly against all who might by any probability have been present, and even so as thereby unjustly to endeavour to exclude any adverse testimony. But this injustice, as regarded actions of trespass, was in a degree put an end to by the statute 8 & 9 W. 3, c. 11, which gives acquitted defendants their costs, unless the Judge shall certify that there was reasonable ground for joining them as defendants. (d) But as this act extended only to actions of trespass, and it had become a practice to include any number of defendants in actions of trover, or on the case, and in replevin, and against executors, (e) the same provision was by the recent Law Amendment Act extended to all personal actions. (f) Since this enactment it is certainly the duty of an attorney to ascertain who are the precise parties whom it is at least reasonable to include in the action. In cases of contracts, until the recent act, a claimant incurred the risk of including too many or too few parties as defendants. In general, even at the present day, if he in his first action include too many, on their own supposed contract, the objection will, on the trial, be ground of nonsuit, and entire failure in that action. (g) If on the other hand he joined too few, then any one of the defendants actually sued might plead, in abatement, the nonjoinder of an omitted party; and, if such plea were true, the plaintiff was compelled to begin de novo, and if the omitted party were out of the realm, the plaintiff must have proceeded by special original and outlaw the absent party (though irregularly (b) Id. ibid 8 Ves. 398. (c) Ibid. 8 Ves. 405; 1 Mad. Ch. Pr. 199. (d) 8 & 9 W. 3, c. 11, s. 1.; see cases Tidd. 9th edit. 986. (e) 3 & 4 W. 4, c. 42, s. 32; see former cases, Tidd. 9th edit. 986. (f) Section 32, enacts, That where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the CHAP. II. PROCEEDINGS BETWEEN, &c. PROCEEDINGS CHAP. II. so, (g) before he could proceed with effect against the defendBETWEEN, &c. ants in England, and in which proceedings to outlawry there was considerable risk of irregularity. (h) To remedy this defect in the law, a most important new provision was introduced in the recent act for the amendment of the law, which in effect puts an end to pleas in abatement when the omitted party is out of the kingdom, by requiring a party pleading nonjoinder in abatement, to aver in the plea that the party omitted was, and is, resident within the jurisdiction of the Court; and to state and verify in his affidavit, the place of residence of such person with convenient certainty. (i) Since this act no plea in abatement for nonjoinder can be effectual when the omitted party resides out of the kingdom, and if he reside here and the plea be true, the plaintiff may immediately enter a cassetur and begin de novo against all the proper parties; and in such second action he is to have a verdict against such persons as he shall prove to be liable, although he fail as to the rest. (j) Thirdly, what the cause or ground of ac to be ascer tained. Thirdly, it will next be the duty of the complainant's attorney, well to ascertain the precise cause of action being the right and tion, and how injury, whether independent of contract or founded on contract. The particulars of these may be ascertained by any means short of the breach of personal confidence. If they cannot be obtained by civil means without legal measures, then 'a bill for a discovery may in most cases be filed; as to compel a defendant to admit or deny whether he did not promise marriage to the complainant, and so as to enable her to sustain an action for the breach; (k) or whether he did not by some memorandum in writing, signed by him, within six years, effectually take the case out of the Statute of Limitations; (7) so a bill lies for the discovery of assets, to enable the plaintiff to bring an action at law against an executor or administrator; though in this case, the bill must charge, that assets or goods of the testator have come to his hands; (m) or the creditor or legatee, or next of kin, may cite and compel such personal representatives to exhibit a (g) Bryan v. Wagstaff, 5 Bar. & Cres. 314. (h) Tidd. 9th edit. 128. (i) 3 & 4 W. 4, c. 42, s. 8, enacts, "That no plea in abatement for the nonjoinder of any person as a co-defend"ant shall be allowed in any Court of "Common Law, unless it shall be stated "in such plea that such person is resi"dent within the jurisdiction of the "Court, and unless the place of resi"dence of such person shall be stated "with convenient certainty in an affi"davit verifying such plea." And sec tion 9, enacts, "That to any plea in (j) 3 & 4 W. 4, c. 42, s. 10. (1) Cock v. Wilcock, 5 Mad. Rep. 331; Mac Gregor, v. East India Company, 2 Simons, R. 454. (m) 1 Ch. Cas. 226; 1 Madd. Ch. Pr. 207. |