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He must pay his costs and add them to his security.

The plaintiffs must pay the costs of F. Neilson and Smith, Harford and Sewell, and they may add them to their security.

The Vice Chancellor further said, that he thought it was a case in which there should be only one time fixed for redemption, following the decree of the Master of the Rolls in

Bartlett v. Rees, 40 Law J. Rep. (N.s.) Chanc. 599; s. c. Law Rep. 12 Eq. 395.

The order made was as follows

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1. An account of what is due to the plaintiffs under their mortgage in the pleadings mentioned, and for their costs of this suit to be taxed by the Taxing Master, including in such costs what the plaintiffs shall have so paid for the costs of the defendants, C. C. Neilson, J. B. Smith, C. R. Harford and H. Sewell, and that the total amount due to the plaintiffs be certified. And it is ordered, that upon the defendants, S. Bowley, L. Winterbotham, T. Marling, A. Lawrie, and C. F. Kemp, some or one of them paying to the plaintiffs what shall be so certified to be due to the plaintiffs within six calendar months after the date of the Chief Clerk's certificate, at such time and place as shall be thereby appointed, the plaintiffs do convey the premises comprised in their said mortgage security free and clear of all incumbrances done by them or any persons claiming by, from and under them, or by those under whom they claim, and deliver up upon oath all deeds and writings in their custody or power, relating thereto, to the defendants, S. Bowley, L. Winterbotham, T. Marling, A. Lawrie, and C. F. Kemp, or to such one or more of them as shall redeem the plaintiffs, or they shall appoint. And it is ordered, that in case the said last named defendants, or any of them, shall so redeem the plaintiffs, the defendants or defendant so redeeming the plaintiffs be at liberty to apply to this Court, as they or he may be advised, and in such application it shall not be necessary for the defendants or defendant so applying, to give to the plaintiff's notice thereof. And this order is to be without prejudice to any question which may arise as to the rights or interests of the said defendants, as between themselves to or in the mortgaged premises. But it is ordered, that in default of the defendants, S.

as

Bowley, L. Winterbotham, T. Marling, A. Lawrie, and C. F. Kemp, or any of them, paying unto the plaintiffs what shall be certified to be due to them by the time aforesaid, the said last named defendants, S. Bowley, L. Winterbotham, T. Marling, A. Lawrie, and C. F, Kemp, do from thenceforth stand absolutely debarred and foreclosed of all equity of redemption of the mortgaged premises. And any of the parties are to be at liberty to apply as they may be advised.

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Practice-15 & 16 Vict. c. 86. s. 40— Ord. 5th of February, 1861, r. 19-Notice of Motion-Affidavit-Order on Motion— Cross-examination-New Evidence-Costs.

A party who swears an affidavit, which is used at the hearing of a motion, on which an order is made for the motion to stand on terms till the hearing of the cause, cannot be cross-examined on that affidavit, even although the one party may have given notice to the other that he means to use the affidavit at the hearing of the

cause.

When the Court orders a motion to stand till the hearing of the cause, it in effect reserves to itself the right of dealing differently with the costs of the motion, and those of the cause.

This was a motion in the cause on behalf of the plaintiffs, for an order that the defendant, who had been called on behalf of the plaintiffs, to be crossexamined on his affidavits, and who attended but declined to be sworn, might at his own expense, at such place and time as the examiner should appoint, attend and be cross-examined, and then and there at his own expense produce all documents in his possession or power relating to the matter referred to in the affidavits or either of them; or that, in

default thereof, the defendant should stand committed to the proper prison. And further, that he might pay the costs occasioned by his aforesaid refusal, and of that application.

The facts of the case were these: The bill was filed on the 9th of October, 1871, for an injunction to restrain the defendant from infringing the plaintiffs' trade marks. Notice of motion for an interim injunction was duly given to the defendant, and on the 2nd of November he filed two affidavits in answer to it. The motion was opened on the 9th of November, argued, and an order made that it should stand over, on an undertaking, till the hearing of the cause.

On the 15th of November, 1871, the defendant's solicitor was served with a notice calling upon him to produce the defendant for cross-examination on the two affidavits, before the examiner, on the 5th of December, 1871.

On the 17th of November the defendant's solicitor demanded thirteen guineas for bringing the defendant from Bradford to London for the cross-examination. The solicitor was afterwards paid for that demand ten guineas.

On the 5th of December the plaintiffs' solicitor attended before the examiner, but the cross-examination was adjourned till the 22nd of December, 1871. Subsequently to the 5th of December the defendant's solicitor was paid another ten guineas for the defendant's expenses of attending the cross-examination on the 22nd of December.

On the 22nd of December, 1871, the defendant attended the cross-examination, but declined to be sworn, on the grounds that as the affidavits had been used on the motion for the injunction, and an order had been made on it, he could not be cross-examined on the affidavits. The plaintiff's gave the defendant notice that they intended to use the affidavits at the hearing of the cause. The examiner. wished to take the cross-examination, but ultimately referred the matter to the Court.

Mr. Horton Smith, for the plaintiffs.-I say that, inasmuch as the motion for the injunction has been ordered to stand till

the hearing (which has not yet taken place), this is "a cause or matter depending in the Court;" that the plaintiff's intend to use the affidavits at the hearing; and that they are therefore entitled to crossexamine the defendant upon them. I also submit that the objection, if seriously relied upon by the defendant, should have been taken before he received the twenty guineas, otherwise there is a waiver of it.

Mr. Rigby, for the defendant.-It is not regular to cross-examine the defendant on these affidavits. The motion for the injunction was argued, and an order made on it; and unless new evidence is admissible the cross-examination is wrong. If a cause is not at issue, or there is no interlocutory application, de facto, before the Court, the filing of an affidavit by one of the parties does not entitle the others to cross-examine on it—

15 & 16 Vict. c. 86. s. 40;

mo

Ord. 5th of February, 1861, r. 19. The Act only applies to cases where affidavits have been filed, to be used in tions or other proceedings" actually before the Court. The motion for this injunction is not now actually before the Court. What the plaintiff's here want is to go into a cross-examination of this defendant on all the merits of the case, and so ascertain whether they shall or shall not go on with the suit. But that is a course which they cannot be allowed to take— Lloyd v. Whitty, 19 Beav. 57;

But,

Kay v. Smith, 20 Beav. 566; s. c. 24 Law J. Rep. (N.s.) Chanc. 788; was overruled by Manby v. Bewicke, 8 De Gex, M. &

G. 470; s. c. 26 Law J. Rep. (N.S.)
Chanc. 20;

The Catholic Printing and Publishing
Company v. Wyman, 32 Law J.

Rep. (N.S.) Chanc. 53;

Hooper v. Campbell, 13 W. R. 1003;
Oodleen v. Oakley, 2 De Gex, F. &
J. 158;

Clarke v. Lay, 2 Kay & J. 28;
Coles v. Morris, 36 Law J. Rep. (N.S.)
Chanc. 833; s. c. Law Rep. 2
Chanc. App. 701.

If the plaintiffs are right in their contention, they may put in evidence up to the very hearing of the cause; because

this attempt is nothing more than one to create new evidence, which is irregular— East Lancashire Railway Company v. Hattersley, 8 Hare 72-86;

Bird v. Lake, 1 Hem. & M. 111 &
119;
Cook v.

Hall, 9 Hare App. 20; s. c. 22 Law J. Rep. (N.S.) Chanc. 12; Wrightman v. Wheelton, 23 Beav. 397;

[WICKENS, V.C.-I think, Mr. Rigby, your great difficulty is the receipt of the twenty guineas.]

Mr. Rigby. My client will repay it, if he is not entitled to keep it. But, then, he has been improperly brought up from Bradford to London for a cross-examination, to which he ought not to be submitted. There have therefore been faults on both sides-" communis error."

Mr. H. Smith made an offer to compromise the matter.

Mr. Rigby declined the offer.

Mr. H. Smith in reply.-I contend that there has been a clear waiver by the detendant in this case of any objection on his part to this cross-examination.

But if not, then, I say, that none of the cases cited by the other side apply to this one. Here there is, most emphatically, a matter, or proceeding, depending in and before the Court, because the motion for the injunction is not yet disposed of; the matter is kept alive by the undertaking; an order has been made, which still enures; the plaintiff's mean to use their affidavits at the hearing; the detendant has had complete notice of all that; and the cause cannot be stopped until the plaintiffs bring it on at the hearing on the merits. Therefore they are entitled to the order they now move for.

WICKENS, V.C.-I do not clearly see any difference between the evidence which the plaintiffs seek to obtain by this crossexamination and new evidence. But as I understand the practice of the Court it is this: When the bearing of a motion is ordered to stand, on certain terms, till the hearing of the cause, no new evidence can be filed by the parties on the motion. The motion must be dealt with at the hearing, in the manner in which it was originally brought on. Any other mode

of proceeding would be not only irregular, bnt inconvenient. The result is therefore nearly, if not absolutely, the same as if the only order made on the motion had been that the costs might be costs in the cause. The distinction seems to be that the Court reserves to itself the means of dealing differently with the costs of the motion and the costs in the cause.

No doubt there have been errors on both sides in this case, but I am convinced that a motion, situated as this is, is not a pending one, for the purpose of such evidence as is here sought for.

There may have appeared to have been something like a waiver, but I do not think I have jurisdiction to decide the case on that ground.

Considering that there has been communis error in the case, I think the proper order to be now made is this that the defendant do repay the twenty guineas, and subject to that, that the motion be dismissed without costs.

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Bill of Discovery-Action for Libel6 & 7 Will. 4. c. 76. s. 19.

A person complaining of a libel in a newspaper may file a bill against the printer and publisher to ascertain the names of the proprietors, for the purpose of bringing his action against the proprietors alone.

This was a bill for the purpose of ob taining discovery of the name of the proprietor of the Pall Mall Gazette, the more effectually to enable the plaintiff to bring an action at law for certain libels on the plaintiff which were not set out in the bill, but were alleged by the bill to be contained in that newspaper. No action

had been instituted when this suit was commenced.

The defendant to the present. bill was the publisher and printer of the newspaper.

Section 19 of 6 & 7 Will. 4. c. 76, provides that," If any person file any bill for discovery of the name of any proprietor of any newspaper in order more effectually to bring or carry on an action for damages alleged to have been sustained by reason of any libellous matter contained in any such newspaper respecting such person, it shall not be lawful for the defendant to plead or demur to such bill; but such defendant shall be compellable to make the discovery required; provided that such discovery shall not be made use of as evidence or otherwise in any proceeding against the defendant, except only in that proceeding for which the discovery is made."

The whole of 6 & 7 Will. 4. c. 76, was repealed by 32 & 33 Vict. c. 24, but this section, among others, was re-enacted by and in the schedule to 32 & 33 Vict. c. 24.

The latest Statute Law Revision Act, 33 & 34 Vict. c. 99, repealed the 6 & 7 Will. 4. c. 76, so far as it was not already repealed.

The defendant demurred for want of equity.

Mr. Davey, for the demurrer, contended that as the defendant to the present bill would be a stranger to the action for libel which the plaintiff threatened, no discovery could be granted

Glyn v. Soares, 3 Myl. & K. 450; s. c. 5 Law J. Rep. (N.S.) Ex. Eq.

49; Cardale v. Watkins, 5 Madd. 18; Fenton v. Hughes, 7 Ves. 287; Kerr v. Rew, 5 Myl. & Cr. 154; Balls v. Margrave, 3 Beav. 448. Mr. Greene and Mr. Jolliffe, for the bill, relied on the Act of Parliament.

Mr. Davey in reply.

The Vice Chancellor reserved judg

ment.

WICKENS, V.C. (on Feb. 10), said: This is a general demurrer to a bill of discovery purporting to be filed under the provisions of the Act 6 & 7 Will. 4. c. 76.

s. 19, or (more accurately) under the provisions of the Act 32nd and 33rd Vict. c. 24, which repeals and re-enacts the clause in question. The former Act, after imposing certain stamp duties on newspapers, requires that the names of the printer and publisher of every newspaper, and those of every proprietor of a newspaper resident out of the United Kingdom, and of two at least of the proprietors of a newspaper resident within the United Kingdom, should be declared to a public officer so as to be ascertainable by the public at any time, and provided by s. 19 (ubi supra), for the discovery of the name of a proprietor by any person wishing to proceed against him for libel: then the Act 32 & 33 Vict. c. 24, repeals certain provisions of that Act, including those for enabling the public to ascertain the names of the proprietors, and also sec. 19. But that section is continued and re-enacted by the repealing Act. The Act 33 & 34 Vict. c. 99, repeals the original Act so far as not already repealed. The result seems to be that section 19 of the original Act is still in force, but in force as an enactment of 1869, and not as an enactment of 1836.

The plaintiff in this case alleges by his bill that certain numbers of the Pall Mall Gazette, of which newspaper the defendant Enoch is printer and publisher, contain certain articles or paragraphs and other matter libelling the plaintiff, and that he had sustained great loss and damage by reason of such libellous matter; and he seeks a discovery from the defendant of the names of the proprietors or proprietor of the Pall Mall Gazette on the days when the inculpated numbers were issued, in order the more effectually to enable him to bring and carry on an action in a court of common law for damages sustained by the plaintiff by reason of the said libellous matters respecting him. The statements in the bill shew that the plaintiff instructed his solicitor to bring an action for the libels complained of against the proprietors or proprietor of the newspaper; that the plaintiff's solicitor applied to a person whom he supposed to be the proprietor, and was referred to a solicitor, who declined to state, or at least did not state,

when asked to do so, the name of the proprietor or proprietors, but suggested, as the usual and proper course, that the action should be brought against the publisher (the present defendant), on whose behalf he was willing to meet it. The bill does not set out the alleged libels, and, in fact, contains no more distinct allegation as to their nature or character than what I have already mentioned, though it appears incidentally, from the correspondence stated in it, that the pages of the publication in which the alleged libels occur have been pointed out to the defendant's advisers.

There is also no distinct statement of the plaintiff's intention to bring an action, or of his ignorance of the proprietors' names. The deficiency of allegation in those respects was, however, not strongly insisted on at the hearing, probably because they would be obviated by amendments. The first of them might be of some general importance as a matter of pleading but for the anomalous and unusual nature of the suit. If the defence were the legitimate one, that the alleged libel is not a libel, the mode of pleading here adopted might place the defendant at considerable disadvantage. It is to be gathered, however, from the correspondence that this is not the objection intended to be insisted on in this Court; and as a matter of fact it was not pressed in the argument. Under these circumstances, and not without considerable hesitation, I hold that there is in the present case just sufficient allegation in the bill to save it from a general demurrer, if in substance the plaintiff has a right to the discovery he asks. The objection to his right, as I understand it, is thus put. It is said that when the legislature gave the right of filing a bill of discovery in certain cases, it must be taken to have authorised a bill which shall be subject to the ordinary rules governing such bills, in this, the natural Court for filing them, one of which is that the bill can only be maintained against a person who is, or is to be, a party to the record at law, and not against a witness whose evidence may go to charge some third person. And it is said that any other construction would enable a person complaining of a NEW SERIES, 41.-CHANC.

libel in a newspaper to file a bill against any human being, whether connected with the newspaper or not, for the purpose of discovering the names of the proprietors. if accidentally known to him. It seems to me that those objections cannot succeed. In the first place, it is to be observed that the statute mentions a bill of discovery to be filed in "any Court." When the clause was first enacted, the Court of Exchequer in equity (in which it may be observed witnesses were for some pur. poses considered proper defendants to bills of discovery) was in existence, as a general Court of equity, but the expres sion, "in any Court," can hardly be cut down to the Courts of Chancery and Exchequer, since, when the clause was re-enacted, the latter was not a general Court of equity.

The legislature can, perhaps, have hardly intended to give a person complaining of a libel a right to file a bill of discovery for the purpose in question, in Courts having no practice and no machinery applicable to such bills. Still to read the expression, "bill of discovery," as importing into the clause the special rules of the Court of Chancery, would seem a little unreasonable, where the bill may be filed in any Court. Moreover, the Act seems to presume that the bill authorised by it would be pleadable or demurrable, if not protected by the enactment, and in any case the very object of it must have been to enable the plaintiff to extract from the defendant the name or names of some person or persons, other than himself, who might be sued at law (though, according to the defendant's contention here, not alone or otherwise than in conjunction with the defendant in equity). The supposition that if the plaintiff knows the name of one proprietor he can make him tell the names of all the others; but that, not knowing one name, he cannot get the information from the printer or publisher, who is the agent of the proprietors, and is put forth to stand between them and the public, is one that does not commend itself to one's common sense, and is not to be accepted without absolute necessity. It is not necessary to consider whether the enactment would cover the case of a mere witness, in the strict sense

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