1833.

THE KING OF

SPAIN v.

HULLETT.

and that his said Catholic Majesty threatened and intended to proceed at law against these Respondents in respect of the matters in the said original bill mentioned, and particularly to bring an action against these Respondents in his Majesty's Court of King's Bench, for the sum of which he claims an account by his said original bill, and that he had also confederated with the said Don Justo de Machado, to serve the purpose of his said Catholic Majesty, and intended to bring in his own name actions for the recovery of the said monies.

That his said Catholic Majesty, and also the said Justo de Machado, ought to be restrained from commencing or prosecuting any such action.

That his said Catholic Majesty had not any claim or pretence of claim against the Respondents, except in respect of alleged transactions and relations subsisting between the said Don Justo de Machado and his said Catholic Majesty; but the Respondents showed, that even if his said Catholic Majesty ever had any such claim against the said Don Justo de Machado, or through him against the Respondents, yet his said Catholic Majesty had already satisfied his said demand; for the Respondents charged that the said Don Justo de Machado was possessed of or entitled to considerable property in Spain, and that lately he became, by reason of the death of his mother and other relations, entitled to additional property to a large amount, and that his said Catholic Majesty had seized, confiscated, and applied to his own use the whole or the greater part of the said property, alleging as an excuse or reason for so doing, that the said Don Justo de Machado withheld from the said Appellant monies belonging to

him the said Appellant; and by that means his said Catholic Majesty had satisfied the demands which he had or claimed to have against the said Don Justo de Machado, or through him against the Respondents; and by their said cross bill they submitted that the said Appellant was entitled to no relief against the Respondents, in respect of any transactions between him and the said Don Justo de Machado, or between them and the said Don Justo de Machado, or if he should be deemed entitled to any relief, that he must account and give credit for the whole value of the property so by him seized or confiscated, and of all the goods of the said Don Justo de Machado, which at any time had come into the hands of his agents, or of any agent or officer of the Spanish government.

They further charged, that the Appellant was indebted to the said Don Justo de Machado in various sums of money.

That the Respondents, without the discovery thereby prayed, could not set forth with accuracy, or support the claims which they had on the monies in the said original bill mentioned, or on any other monies belonging to his said Catholic Majesty.

That his said Catholic Majesty had had various communications relating to all or some of the matters therein mentioned respectively, made to him by, and by him to, divers persons, of the names respectively of Saez Aguado, Villa Hermaso, Recacha Colomarde, Balbon Longa, Uriarte Heredia, Ofalia Alcudia, San Miguel, and Florez Estrada; and that divers writings touching the said matters, or some of them, had with his privity, or by his

1833.

THE KING OF
SPAIN

V.

HULLETT.

1833.

THE KING OF

SPAIN v.

HULLETT.

order, and on his behalf, been sent and received to or by the said persons respectively, or had been sent by the said persons to him, and that the true purport and effect of all the communications therein-before mentioned should be set forth, and that all the said papers should be produced.

That his said Catholic Majesty alleged, that the said Don Justo de Machado had, and in fact the said Don Justo de Machado claimed, some interest in the said matters, and a great or some part of the monies in the said original bill mentioned belonged to him, and had been admitted by his said Catholic Majesty to belong absolutely to him.

That his said Catholic Majesty had then, or lately, or at some time had in his possession, custody, or power, or in the possession, custody, or power of his agents, ministers, or servants, or some of them, divers books of account or book of account, cash books or cash book, memorandum books or memorandum book, diaries or diary, journals or journal, letter books or letter book, and other books, deed or deeds, agreements or agreement, copies or copy of agreement, despatches or despatch, copies of despatches or of despatch, orders or order, decrees or decree, minutes or minute, copies or copy of orders or copy of order, copies of decrees or copy of decree, notices of claims or notice of claim, memoranda or memorandum, entries or entry, and particularly entries relating to the capture and seizure of vessels, letters or letter, copies of letters or copy of letter, abstract or abstracts, extracts or extract, copies or copy, and other papers and writings, relating to or shewing the truth of all or some of the matters therein-before mentioned, which his said

Catholic Majesty refused to produce, though his said Catholic Majesty well knew, as the fact was, that without the production of the said papers, and the discovery of all the matters by the said cross bill enquired after, the Respondents could not have justice in the said original suit; the more especially as his said Catholic Majesty intended to amend his said original bill, and materially to alter the case stated in it, which these Respondents submitted he ought not to be allowed to do till he should have fully answered their said cross bill, the discovery thereby prayed being such, as, besides being essential to these Respondents' defence to the said original bill, would shew the untruth of the allegations which the said Appellant intended to introduce by amendment into his said original bill.

The prayer of the cross bill was, that the Appellant might be ordered to make to the Respondents the discovery thereby sought, and that it might be declared that the Appellant was not entitled as against the Respondents to any account of the monies in his said original bill mentioned, or of any other monies being part of the proceeds of the rentes in the said original bill mentioned, but that if any account should be directed of the said monies, then that an account might be taken of what was due to the Respondents, or to the said Don Justo de Machado, in respect of the transactions and matters therein-before mentioned; and that his said Catholic Majesty might in such account be charged with all monies and property belonging to the Respondents, or the said Don Justo de Machado, which had been seized, detained, or confiscated by or by the orders of his said Catholic Majesty, or the Spanish government, or the

1833.

THE KING OF
SPAIN

v.

HULLETT.

1833.

THE KING OF

SPAIN

v.

HULLETT.

agents and officers of the Spanish government; and that his said Catholic Majesty might be ordered to pay to the Respondents what should be found due to them, and that they might have the benefit of the whole which should be found due from his said Catholic Majesty by way of set-off, or in the nature of a set-off, or counter claim against his said Catholic Majesty; and that his said Catholic Majesty and his agents might be restrained from commencing any action at law against the Respondents, or either of them, in respect of any of the matters in the said original bill, or therein mentioned; and that his said Catholic Majesty might also be restrained from proceeding in the said original suit until he should have granted a full discovery of all the matters of which a discovery was thereby prayed, and of all the writings, papers, and documents therein mentioned, and for further relief.

On the 11th of July, 1828, the Respondents put in to the Appellant's original bill an answer, which was to the same effect as the cross bill.

On the 30th of July, 1829, the Appellant appeared to the cross bill. On the 30th of January, 1830, the Appellant obtained an order of course to amend.

On the 4th of February, 1880, the Respondents moved to discharge this order for irregularity, on the ground that it had not been obtained within six weeks after the answer of the only persons who were effectually made defendants was to be deemed sufficient. The Vice-Chancellor discharged the order as irregular. But as it afterwards appeared that the Defendants had accepted the 20s. costs, this was held a waiver of the irregularity of the order to amend, and on that ground the