Moodalay against Morton. The same against The East India Company.

LINCOLN'S INN HALL

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Original Citation: (1785) 1 Bro CC 469

English Reports Citation: 28 E.R. 1245

July 8th, 1785.

See Prioleau v. United States, 1866, L. R. 2 Eq. 667.

[469] Moodalay against Morton. The same against The East India Company. Lincoln's Inn Hall, July 8th, [1785].

Master of the Bolls for Lord Chancellor--[S. C. 2 Dick. 652.]-[A demurrer will not lie to a bill merely for a discovery to enable the plaintiff to go to law, on the ground that the plaintiff had not brought his action.] Demurrer to a bill against the East India Company and their secretary, praying a commission to examine witnesses in India, and that the defendants might discover by what authority plaintiff was dispossessed of a lease for supplying Madras-with tobacco (the plaintiffs intending to bring an action), overruled.

This bill was filed against the East India Company, and against Morton their secretary.-It stated that a cowl, or lease, of the permission to supply the inhabitants of Madras with tobacco for ten years, had been granted to the plaintiffs, and signed by John Smith (a person properly authorized by the Company), that the plaintiffs, as lessees, covenanted to provide the settlement at a reasonable price, and that tobacco being considered in the East Indies as a necessary of life, had been, for time immemorial, supplied to the settlements of the East India Company, in this method. The bill further stated, that in 1782 (before the expiration of the ten years), the Company, by their servants in India, dispossessed the plaintiffs, and granted another cowl to other persons for the supplying of tobacco ; and that the plaintiffs intend to bring an action against the East India Company, but cannot support the same without the evidence of persons resident in the East Indies; the bill, therefore, prayed a commission for the examination of witnesses; and that the Company and their secretary might dis¡cover by whom, and under what authority, the second cowl was granted, and, for that purpose, might set forth letters, &c., of their servants in India, &c.-To this bill the defendants put in a general demurrer.

Mr. Madocks, Mr. Hardinge, Mr. Nedham, and Mr. Lloyd, for the plaintiffs. The

1246 MOODALAY V. MORTON 1 BRO. C. 0. 470.

court will retain a bill in aid of a legal title ; the only objection which can be brought to the prayer of this bill, for a commission to examine witnesses, is, that the action at law is not yet brought, but that objection has been overruled. It is sufficient that a foundation for an action has been laid, by the plaintiffs being dispossessed by the Com¡pany's servants. The bill is for the discovery, whether the persons who have done the act are servants of the Company ò if they are not, they will be liable in their own persons : but it is impossible to learn, whether they acted by the Company's authority, except in this way.-In a case before Lord Bathurst, a bill as filed for a commission to examine witnesses [470] in India, to prove an assault committed by Mr. Verelst. The action was not commenced, and the defendant demurred ; but it was then held, that the circumstance of the action not being actually brought was immaterial, and the reason that the demurrer was allowed, was because the court would not compel a discovery of criminal matter. In Wych v. Meal, 3 Wms. 310, it was held that the servant of a public Company should not demur to a bill of discovery of papers and orders, as the Company cannot be indicted for perjury, if their answer is false.

His Honor mentioned the case of Egerton v. Mostyn, where it was held, that before an action brought, a bill for perpetuating the testimony of witnesses could not be supported.

Mr. Hardinge replied to this, that in the case of Egerton v. Mostyn the trespass had been committed by a known defendant, here the bill was to discover by whom the trespass was committed. In Heathcote v. Fleete, 2 Vern. 422, such a bill was held to be well brought.

Mr. Attorney-General [Arden], Mr. Solicitor-General [Macdonald], and Mr. Mitford, for the defendants. There is no instance of a court of equity granting a commission to examine witnesses in a suit not existing, it is matter of discretion, not of right; a bill to perpetuate the testimony of witnesses cannot be brought until after the action is commenced, unless in cases where an action will not lie, as where it is apprehended that, after all the witnesses are dead, new claims will be made.-Then as to the discovery prayed, it is not a discovery of the parties who have done the injury. The plaintiffs state that Smith and others granted them the lease to supply the settlement with tobacco, and that they have been dispossessed, but they do not pretend that they cannot bring an action against the new leases, which, as they are in possession of the old lease, they certainly might do. But, by suggesting that the Company have papers in their possession, by which it will appear the dispossession was by their authority, they call upon the secretary to produce those papers.-In the case cited from 'Williams, it was admitted that the Company, if natural persons, would be obliged to make the discovery, and therefore the party could call upon their servant; but, in this case, it does not appear that the principals had any thing to do with the matter. In another view, this is a matter of great importance to the Company ; for the grant of the lease, and the removal of the lessees [471], are incident to their character as a Sovereign Power. It was an exercise of their dominion as such, and no act of sovereignty can be questioned in a bill here, or in a suit at law.

Master of the Rolls (see also the report of the judgment, 2 Dickens, 653).-At the outset I thought the cases of a corporation and of an individual were different; but I am glad to have the authority of Lord Talbot, that they are not.-In ordinary cases, when an action has been brought, the Court, as auxiliary to the remedy, will grant the commission.-This is constantly done in the Exchequer in Insurance cases.-I admit that no suit will lie in this Court against a Sovereign Power, for any thing done in that capacity ; but I do not think the East India Company is within that rule.-They have rights as a Sovereign Power, they have also duties as individuals ; if they enter into bonds in India, the sums secured may be recovered here. So in this case, as a private Company, they have entered into a private contract, to which they must be liable.- If the discovery prayed were of a matter which would be felo de se, it would be improper to suffer any delay or expence ; but here is a prima facie ground of action, the Company has put other persons in the way of doing the plaintiffs an injury.-But it is said that no action has been brought.-In addition to the cases cited on this part of the question, I remember one in point, that the commission may be before any action is brought. The discovery may be necessary, before the declaration can be drawn, if the suit be by original (which I believe it must against a corporation); I think, therefore, the plain¡tiffs are entitled both to the discovery and commission. Mr. Solicitor says it would be perilous that the secretary should discover matters prejudicial to the Company ; if any

1 BSD. C. C. 472. FONNEREAU V. POYNTZ 1247

part of the letters called for are so, he need not discover those parts. In a case of Walpole and Ellison v. White, it was so ordered, that the discovery should be only of the parts of .the letters which were necessary. (Note : The practice is, that the party may seal up such parts of the documents, as he shall pledge himself, by affidavits, do not relate to any of the matters in question. See Wilson's Ca. Ch. 222.) Demurrer overruled. (Eeg. Lib. 1784, B. fol. 712.)