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LAWRENCE,J. “What is desired in ordinary cases is to shew, by denying the fact, that there is no truth in the charge ; otherwise it might be of too light a nature for the court to interfere. But the application is now made for us not to interfere, until an answer can be had from the West Indies. Now we require that the party should deny the charge in the libel, he has done so here; and there is this peculiarity in the case, that the party now applies for leave to state that, which the other party would be in no situation to deny, if it went to defeat his right to the rule. The libel is not merely that he did tell Lynch that Col. Fullarton had a commission to inquire into the conduct of Colonel Picton, for I have some doubt, at least, whether if he contented himself with saying that Sullivan said that to Dr. Lynch, it would be a libel, though he publishes this of a man in a high situation : but all this will not affect the case in the least, for ihere is other matter which has nothing to do with this. I think, however, that the rule must be as Serj. Best says, that, if the party is ready to bring forward his affidavits, the court may inquire whether the matter is true, and, perhaps, then they will not grant the information. But it is very different where he requires time for a mandamus to have that, which, if brought, would not be of any avail.”
LE BLANC, J. “ This is an application to the discre. tion of the court whether it will grant further time to procure an affidavit. The court must then lake into its consideration whether it is such an affidavit as it will put in the opposite scale against the affidavit which is then before them. The affidavit proposed to be taken before the judge of the island ought not to be suffered to contradict and to weigh down the affidavit taken in a regular judicial proceeding.'
· Rule A ESOLU TE.
1806, LUBBOCK against Claggett. Same against Ports.
lidated, there was a rule nisi obtained for a new trial, on a Consolidation a point of law reserved, and the defendant agreed to abandon Fule. it, the defendants in other causes were permitted upon moa tion to hare the name of another defendant inserted in his place in order where the benefit of the rule' to shew cause. IN these cases, which were actions upon a policy LUBBOCK
of insurance, the plaintiffs had obtained a verdict , versus against the defendant Claggett, and the defendant Potts had previously obtained a rule to consolidate the actions, and agreed to be bound by the verdict. A rule was obtained in Michaelmas term in the name of Claggett, to shew cause why the verdict should not be set aside, and why there should not be a nonsuit entered upon the ground of illegality in the voyage, the same being contrary to the navigation laws. Upon this, Claggett, who disliked the defence, agreed to settle the loss, the origi, nal and first ground of defence having been that the loss itself was fraudulent. Claggett and others therefore signed a letter authorizing the plaintiffs to receive exchequer bills for the loss, and disclaimed, taking any advantage of any legal objection, and upon an affidavit of these circumstances;
The Solicitor-GenerAL* and Garrow shewed cause against the rule for entering a noasuit, and agreed, that, if others of the under-writers were desi-. rous of litigating the question, the consolidation rule might be opened, and they might be permitted to make their objections in point of law.
* Sir V. Gibbs.
1806. Erskine and Park were of counsel for the des
ci fendant, Potts, and other under-writers, and there was LUBBOCK versus much difficulty as to the costs. AGOETT.
Lord ELLENBOROUGH, C. J. at first thought that Claggett and the two others, who had been defendants in the cause wbich was tried and agreed to pay debt and costs, should pay costs up to the time of making the motion for a new trial, and considered all the defendants as making a defence in partnership up to that time: that they might withdraw themselves from all liability from the present time but not previously. At length, it was seen that there would be great difficulty, in adjusting the proportions of costs ; and his lordship said, after consultation with the rest of the .court; “ I think it will be most convenient, at present, to discharge this rule, and you must afterwards move to open this consolidation rule on such considerations as may be made to appear, and to apportion the costs in such a way as the court shall think proper, on that
application, when the facts are before us. It will be every difficult to arrange the costs, but perhaps it may . be laid before us at another time, and in the defendants arranging their defences, all waste of expence ought to be avoided, if it can be avoided, unless you can sarrange it by consent. Here the plaintiff stews that the motion for the entering of the nonsuit was made without the consent of the defendant Claggett."
Afterwards a rule was made to discharge the rule for the new trial in this cause,and it was further ordered, that the name of James Potts be inserted in the rule made in this cause, on Monday on the feast of SI. Marlin, in the said Michaelmas term, instead of the present defendant Clagget, and that the cause against
the said James Potts be advanced and placed in the 1806. same condition as that against Claggett would have been LUBBOCK if the said rule of Thursday next after fifteen days of verous
CLAGGETT. St. Martın had not been made, and, that the consolidation orders when made rules of this court, shall apply to such defendants as do not withdraw thein- . selves from the defence ; and that the plaintiffs and such defendants respectively shall be entitled to such and the like benefit of the decision, which may take place in the cause against the said James Potts, as if the same had taken place in this cause, and, that the plaintiff's be at liberty to take their costs, and sigo final judgment in this cause against such of the other defensa dants as do withdraw themselves from the said order,