and moral character and condnet, strenuously en-
gaged in promoting, by all the means in his power,
the cause of humanity and philanthropy, and as an
unworldly philanthropist. 1992 doua ecu od
The bill then farther charged, that, the Plaintiffs
could not! defend themselves against the said action
at law, without proving the several matters charged
in the bill and contained in the pleas: that some
correspondence, or written communication, had
taken place between the Defendant and the Plain
tiffs, and alsød between the Defendant and, some
other persons or person relating to the matters
aforesaid, or some of them, from which the truth
thereof would appear and which correspondence
the Defendants refused to discoves although now
or Hately in his power; eustody or possession, as
well as divers, books, &e relating to the matters
aforesaid, or some of them, from which the truth
thereof would appeareiznos odt to moitsta
-The bill then further charged, that divers of
the witnesses by whom alone, the Plaintiffs could
prove the several matters aforesaid, were abroad
in the west coast of Africa and in the West Indies,
and in other parts beyond the seas and that the
Plaintiffs were unable to proceed to trial in the said
action, without having one or more commissions for
the examination of such witnessef bas trong trong
The bill then contained interrogatories adapted, to
all the facts before stated and charged; called upon
the Defendant to produce all letters; &c. and prayed
for a commission ancommissions for the examination
of witnesses residing on the west coast of Africa,
and in the West Indies, and that the Plaintiff might
have the benefit of the testimony of sugh witnesses
respectively on the trial of the said action, and that

e

1827.

MACAULAY

SHACKELL and others.

27906 B

1827.

MACAULAY บ.

SHACKELL

1

in the mean while the Defendant might be restrained, &c. ton doh h hut dowode thebiomet To this bill the Defendant put in a demurrer, and others. shewing for cause, that the complainants have not, in and by their said bill, shewn any right or title to the discovery, or to the commission and injunction thereby sought; and for further cause of demurrer, that the discovery and commission, thereby sought, appear, on the face of the bill, to be sought in aid of the said complainants' defence to an action therein mentioned to have been brought against them by this Defendant for a defamatory libel, by the said bill admitted to have been published by the said complainant Edward Shackell, against the Defendant, the publication,of, which, libel, asappears on the face of the said bill, was an indictable offence; and for further cause of demurrer, 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 complainants to prove, on the trial of the said action, the alleged truth certain pleas therein mentioned to have of been pleaded by the said complainants to the said action, but which pleas are not in the said bill set forth with sufficient distinctness and particularity to enable the Court to ascertain whether the discovery and commission squght by the said bill are material to the defence of the said action; 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

1

762

1

10 900
whereupon the said action is founded, the Defendant

shewed, that such matters appear on the face of the
bill to be of a scandalous, and defamatory mature
against the Defendant, and imputing to him moral

1827.

/MACAULAY

JSHACKELL

turpitude; and as to the residue of the said bill the Defendant shewed, 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 and others. thereby prayed, or any or either of them, were or was resident in this country at the time of the publication of the libell 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.lt nisiquos but of to

On the 19th of July, 1824, the demurrer came on to be argued before the Lord Chancellor, who ordered that it should be over-ruled. bths Bid

Upon the over-ruling of the demurrer, an order was made, bearing date the 20th day of July, 1824, on the motion of the Respondent, that an injunction should be awarded for stay of the Appellant's proceedings at law, until the Appellant should fully answer the bill, and the Court should make order to the contrary; but the Appellant was in the mean time at liberty to call for a plea and proceed to trial › therein, and for want of a plea to enter up judg{ment; but execution was thereby stayed.

192 On the same 20th of July, 1824,"an order w was madel that the injunction should extend "to stay trialib ols Tow mistros of two) oft oldens

1

On the 228 of December, 1824, upon the motion of the Respondents, and upon hearing read an affidavit of the Respondents, and an affidavit ! of the Appellant, it was ordered that the Responbdents should be at liberty to Sue out one b more commission or commissions for the examinaortion of witnesses at Sierra Leone, and such of the West India Aslands as the Respondents might be Inom mif of guituqui bas Jusbustoɑ silt tellisys

or

1827.

MACAULAY ບ.

SHACKELL

advised, returnable without delay, with the usual directions in that behalf and it was ordered, that

the injunction should extend to stay trial of the said and others. action until the return of the said commission or how dogoinom misvoft Javevo.

H

commissions.

درا

The Appellant, by his affidavit, in opposition to the motion, specifically, and in detail, denied the truth of the charges and insinuations contained in the alledged libel, and of the allegations in the bill founded upon it; and further said, that there were persons resident in this country, by whose testimony the truth of the matters in issue might be ascertained'; and he verily believed, that although there were not nor was any witnesses or witness residing in the West Indies, or at Sierra Leone, whose testimony, if true, would enable the Respondents to defend the action, or enable them to prove the pleas therein pleaded; yet the Appellant believed that in conse quence of the prejudices, irritation, and hostility, prevailing against him in the West Indies on the account therein mentioned, he could not safely put his character upon trial on evidence to be produced in the West Indies by co by commission; and the rather because the Appellant did not believe that he could,

in the West Indies, obtain commissioners or agents
to execute, or attend the execution, of such com
mission, who would be willing to encounter the dan
ger and obloquy to which a faithful execution of
their duty would expose them; and because the
Appellant was advised, that it was doubtful whether
a witness, giving false evidence under such commis.bo
sion, could be indicted for perjury there; and be
cause if such indictment would lie, and an indict
ment for perjury were preferred in the West IndiesT

Er du iw 7lb tuoitin oldu bservbs against a witness giving such false evidence the prejudices, and hostility, and irritation against the Appellant, prevailing in the West Indies on the account therein mentioned, were so strong thatio and others. there would be no prospect of such indictment being found, or, should the same be found, of its beingout fairly tried, bonitos oitnieni bas 29gids out to The appeal was presented against the orders averbol ruling the demurrer, and directing the commission.oqu on the ground that the publication of the libel beingzot an indictable offence, the Respondents were not ent titled to the assistance of a court of equity, their bar case being founded upon and arising out of the com-Tom mission by them of such indictable, offences and V that, there was no precedent of a bill for a discoveryn li and commission in aid of pleas to an action for dibel,itos averring the truth of the matters contained in thesofq libel; and the establishing of such a precedent would oup put an end to actions for libel the only effectual mode of vindicating characteronomio

baoubory s of 9971979 (o Isint noqu roborando aid For the Appellants:Mr. Shadwell and Mr. Benyset ni 190g1 9415 DAB For the Respondents The Attorney General,ood Mr. Sugden, and

06 TO 219-moy nisido asibal 120W tai

In the course offer of bushte to stuɔɔze of of the argument the following observations were made of blow on doi lo vituoz ludido ot yupoldo bas 199 Mr Shadwell in argument having referred to thei cases upon bills complaining of piracy of literallyqqA productions in which the courts of equity had refused injunction and account upon the ground that the o works alleged to be pirated were Henous or Crimi

The argument bccupied twbadys Il being to ong to inger fully, those points only are noticed upon which observations were made by the House.