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defendant's special plea, and afterwards for the consideration of the court; the judgment which I am now about to deliver, is to be considered as the opinion only of my Brothers Bayley and Holroyd, and myself. We are of opinion that judgment must be given for the defendant.

*The action is for goods sold and delivered and on the common money 18"] counts, the venue being laid in London. The defendant has pleaded the general issue and the statute of limitations upon which no question arises. He has also pleaded, that before and at the time of the accruing of the several causes of action in the declaration mentioned, and also before and on the first of January, 1816, and from thence continually until the sequestration of his estate in the plea after mentioned, he was a merchant and trader in gross and by retail, residing and carrying on his trade at Edinburgh, in Scotland; and then has proceeded to allege, with all due formalities, a sequestration and a decree of the lords of council and session, discharging him from all debts contracted before the 21st of May, 1816, being the date of the application for sequestration, and has averred that the plaintiff's several causes of action accrued before that day, and were proveable under the sequestration. To this plea the plaintiff has replied, that the several causes of action accrued in England. The defendant has demurred to the replication, and the plaintiff' has joined in demurrer.

The plea is framed upon the statute 54 G. 3, c. 137, of which statute the sixty-first section gives the discharge. The statute is entitled "an act for rendering the payment of creditors more equal and expeditious in Scotland." And the question is whether a trader residing in Scotland, and during such residence contracting a debt in England, can be discharged from it under a sequestration issued in Scotland, in conformity to that statute, in like manner as from a debt contracted in Scotland. The statute is an act of the parliament of the United Kingdom, competent to legislate for every part of the kingdom, and to bind the rights of all persons residing in England,

*equally with those of persons residing in Scotland. There is, there19] fore, no question as to the authority of the power by which the statute was passed, and the question must turn entirely upon the construction and effect of the statute. By the sixty-first section, the bankrupt is enabled, with the concurrence of the persons therein mentioned, to apply to the Court of Sessions by petition, praying that he may be held as finally discharged of all his debts contracted before the application for sequestration; and the court is authorised, under the circumstances therein mentioned, to pronounce an act or order in terms of the prayer of the petition. The expression here is "all debts," and it is used without any reference or regard to the place where the debts may have been contracted. It must be admitted, however, that notwithstanding this generality of expression, it is possible that debts contracted in England, may be out of the general operation and view of the statute, and, therefore, not to be comprehended within the terms, "all debts." But there is not a single expression in the statute importing that debts contracted in England, are to be excluded from its operation; and there are many provisions manifestly showing the contrary.

By section 15. Any creditor, without reference to his country or resi dence, or the place at which the debt was contracted, may petition for a sequestration, the deposition being made before any judge ordinary or justice of the peace, and the sequestration is to be of the debtor's whole estate and effects, heritable and moveable, real and personal, for the benefit of his whole, just, and lawful creditors,

By sect. 17. The interim manager is to take possession of the bankrupt's whole estate and effects, and of the title deeds and instructions 20*] of his estate; and the bankrupt must, if required, grant powers of attor ney, or other deeds necessary or proper for the recovery of his estate and effects situate in foreign parts.

By sect. 25. The bankrupt is required to exhibit a state of his affairs, specifying the whole estate and effects, heritable and moveable, real and personal, wherever situate. By sect. 29. When the nomination of a trustee has been approved, the court shall ordain the bankrupt to execute proper deeds of conveyance, making over to the trustee his whole estate and effects, heritable and moveable, real and personal, wherever situate, with full powers of recovery and sale for behoof of the creditors, and on refusal to do so, may be punished by imprisonment; and whether such deeds be executed or not, the whole estate and effects, of whatever kind, and wherever situate, (in so far as may be consistent with the laws of other countries when the effects are out of Scotland,) shall be deemed to be vested in the trustee for behoof of the creditors.

By sect, 33. The bankrupt is to make oath, that the state of his affairs contains a full and true account of all his estate and effects, heritable and moveable, real and personal.

By sect. 41. The trustee is to proceed to recover and convert into money the whole estate under his management or power, whether at home or in foreign parts.

By sect. 43. Oaths of verity upon debts may be taken before any judge ordinary or justice of the peace: and where any creditor is out of the kingdom of Great Britain and Ireland, an oath of credulity by his agent, taken in the same manner, shall be sufficient.

*Upon the view of these clauses it is manifest, that all the property of the bankrupt of every kind and wherever situate, is to be taken [*21 from him for payment of his debts; and that creditors, wherever resident, may prove their debts and receive their share of the estate.

But this is not all: notices are required to be given in the London Gazette, as well as in the Edinburgh Gazette, on important occasions: as of the meetings to choose an interim manager and a trustee, sect. 16: of the appointment of the trustee, and the two days appointed for the public examination of the bankrupt upon the state of his affairs, sect. 32: of meetings of creditors for directing a sale of remaining effects, and of the time of the sale, sect. 56 of the bankrupt's petition for his discharge, of which the court is to resume the consideration at a distance of not less than three months, sect. 61: and of a meeting after the expiration of three years for the disposal of outstanding effects, sect. 75.

Now it appears to us, that the legislature would not have required these notices unless it had been intended that the discharge should operate upon English as well as Scotch creditors. No sufficient reason has occurred to us for giving the opportunity of inquiring into the affairs and conduct of the bankrupt, and of objecting to his discharge, to persons against whom the discharge would be inoperative with reference to a proceeding in an English court. If it be said, that it was intended only to enable English creditors to take the benefit of the sequestration if they should so think fit, and to object to the discharge for the purpose of retaining their right of suit in Scotland, this argument will contain an acknowledgment that English creditors may have the benefit of the sequestration; and then, it being clear that the [*22 bankrupt is deprived of all his property for the benefit of all his creditors who choose to partake of the distribution of it, by an act of a legislature having authority over all parts of the United Kingdom, justice seems manifestly to require that no one who may partake of the benefit, should be allowed to sue the debtor, whose all has been thus given up, if by accident he may happen to meet with him in England. And, therefore, we think we ought not to narrow the effect of the language of the sixty-first section, but to give to the phrase, "all his debts," the meaning usually and ordinarily belonging to those words.

Several cases were quoted in the argument at the bar, which I will now

proceed to notice. The cases of Smith v. Buchanan, 1 East, 6, and Potter v. Brown, 5 East, 124, arose upon discharges under the authority of American states, that is, of legislatures not competent to bind the subjects of this country. Pedder v. M Master, 8 T. R. 609, arose on a discharge at Hamburgh, and came before the court on an application to discharge the bail and enter an eroneretur on the bail-piece, which of course would not be done if the effect of the discharge was doubtful. Quin v. Keefe, 2 H. Bl. 553, came before the court first in the same way, and afterwards upon a plea which was badly pleaded, and there was no decision on the merits. It was the case of an Irish certificate, and of a debt contracted in England, while the defendant was residing here. The case of Jeffery v. M Taggart, which was before this court in February, 1817, on a motion for a new trial, arose, indeed, upon this act 23] of the 54 G. 3, c. 137, *but the question was entirely different from the present. It was an action of assumpsit brought by the trustee under a Scotch sequestration in his own name. The demand had vested in the trustee under this statute, so far as by the law of this country it could do, but as the assignee of a chose in action cannot, by the common law of this country, sue in his own name but must sue in the name of the assignor, and as this statute gives no express power to the trustee to sue in his own name, and the statute 1 Jac. c. 15, s. 13, does expressly give such a power to the assignees under an English commission, it was decided that the action was not well brought in the name of the trustee.

Upon this view of the cases, it appears that no one of them contains a decision contrary to our present opinion, which is founded not upon any general principle, but upon the effect of the particular statute on which the defendint's plea is framed. And for the reasons already mentioned, the judgment of the court is to be entered for the defendant.

Judgment for the defendant.

24]

*M GREGOR v. THWAITES, et al.

Declaration for a libel purporting to contain an account of a proceeding which had taken place before a magistrate respecting a matter in which he was merely asked for advice, and not called upon to act in his magisterial capacity. The libel itself alleged that A. B. and C. D. stated the matter charged to the magistrate, a great part of which was not actionable when spoken, but became so when written. Plea, that A. B. and C. D. did go before the magistrate and make the statement set forth in the libel, and that it contained a correct account of the proceedings before the magistrate, and that the facts charged in it were true. The jury found that the matters contained in the libel were not true, but that it contained a correct account of the proceedings which had taken place before the magistrate: Held, first, that, as the matter brought before the magis trate was not brought before him in his judicial character, or in the discharge of his magisterial functions, the defendant could not justify the publication on the ground of its being a correct report of the proceedings which had taken place before the magistrate. Held, secondly, that it was no justification that the defendants, when they published the libel, mentioned the names of the parties who stated the matter of the libel to the magis trate, because as to part of the slanderous matter no action would lie against the party who stated it to the magistrate; it had become actionable merely from its having been published by the defendants in print, and therefore, by stating the names of the persons from whom they heard it, they gave the plaintiff no right of action against them. Held, thirdly, that, in order to justify the repeating of slander, it was necessary that the party repeating it should, at the time of repeating it, offer himself as a witness to prove the uttering of the slander, and therefore, that, as the defendants did not state that they themselves heard the slander uttered by A. B. and C. D., but merely stated that A. B. and C. D. had said so and so, the plea was bad.

DECLARATION charged, that the defendant published the following libel in the Morning Herald newspaper, in the shape of a report of certain pro

ceedings in the city of London. "Mansion-house. Yesterday Mr. Prince, a common councilman, with Captain Antrim, of the ship Lloyd's waited upon the lord mayor elect, (who sat for the lord mayor) to request his lordship's advice as to the disposal of three orphan children who had been brought on shore under the following melancholy circumstances. Captain John Antrim stated, that on the 31st of July last, he sailed from Honduras. Before he departed from that settlement he consented to receive on board one of the families of the unfortunate Poyais' settlers, the remnant of whom had sought the protection of the British authorities at Honduras, and had received all the succour which the governor had it in his power to give them. [*25 The unfortunate creatures who had survived the effects of their short residence at the desert swamp to which they had been taken, were sent back by the different vessels which sailed from Honduras. The family which Captain Antrim consented to receive, consisted of Thomas Chalmers, his wife and three children. The husband and wife when received on board were both ill with the fever, and died in the course of the passage. The captain said he had landed the three orphans, who were utterly destitute, at Poplar, and he now requested his lordship's advice as to the best means of getting them provided for. The captain then handed in the following certificate to his lordship." The libel then set out a certificate of the governor of Honduras, that the persons in question were received on board from motives of charity. It then stated some questions put by the lord mayor elect and the answers given to them, and the final advice of the lord mayor, that application should be made to the parish officers to relieve the children. It then proceeded as follows. Mr. Prince observed, that the captain, in consequence of his charity in receiving the poor emigrants, had himself caught the fever, and had narrowly escaped, He stated, that above 200 of the victims of delusion had returned from the Mosquito shore to Honduras in a state of utter destitution and of disease, which terminated the sufferings of a great part of them soon after. They must have all died, but for the charity of the people, and the authorities of Honduras. The poor creatures had been led by MGregor to expect a land where they would live in the greatest plenty, where every thing was flourishing, and but litttle labor would be required; it was mentioned to them, as a mark of the improvement of the place, that a fine theatre had been established, and [*26 other establishments formed, indicative, not merely of civilization and comfort, but of luxury. Captain Antrim mentioned a charge which the poor creatures had preferred to him against MGregor. Most of those who sailed from Leith were poor people, who had by their frugality saved small sums of money of from 157. to 301. MGregor learned the property which the settlers had with them, and telling them that Scotch money would not pass at the settlement, persuaded them to give it all up to him, and take his draughts for the amount upon his bankers at Poyais. The savings were all given up to him, and it is, perhaps, unnecessary to add, that the settlers on their arrival at the houseless wilds of Poyais found that no such thing as a banking house was in existence. Captain Antrim regretted that he had not arrived sooner, as another ship had sailed, with settlers for the same place just before his arrival, who he feared would also fall a sacrifice. He had thought it his duty to make the statement publicly, that the poor might be put on their guard." The second count stated, as inducement, that certain persons had emigrated from Great Britain to Poyais, on the Musquito Shore in America, with the intention of forming a settlement there, and on their arrival at Poyais, the emigrants had undergone great sufferings from sickness, disease, and other accidents, whereof some of the emigrants had died, and many others had been thereby compelled to remove to Honduras, and from thence had returned to Great Britain; and that shortly before the committing of the grievances by the defendants, in that and the following count men

tioned, an application was made to the lord mayor elect of the city of London, at the Mansion House, *in the said city, by certain persons, to wit, *27] one Mr. Prince and one Captain Antrim, relative to certain children of

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the said emigrants; yet the defendants, further contriving and maliciously intending, &c. The count then set out, that part of the libel contained in the first count, beginning with the words, Mr. Prince observed, that the captain, in consequence of his charity, &c." The third count was similar to the last, and set out that part of the libel beginning with the words " Captain Antrim mentioned a charge," &c. Plea first, not guilty; secondly, to the whole declaration, that on the 13th of October, 1823, at the Mansion House, &c., one Mr. Prince, a common council man, with Captain Joshua Antrim, of the ship Lloyds', did wait upon the lord mayor of the said city of London elect, who sat for the lord mayor, to request his lordship's advice as to the disposal of three orphan children, who had been brought on shore, as stated in the said supposed libels; and the said Joshua, on that occasion, then and there did make such statements, and mention such charge, circumstances, matters, and things, and hand to his lordship such certificate as in the said supposed libels are respectively mentioned; and the said lord mayor elect did then and there ask such questions, and made such statements, as in the said supposed libels are also in that behalf mentioned, to which questions such answer was given as therein is mentioned; and the said Mr. Prince did also make such observations as therein are mentioned; and the said report in the said newspaper was and is a true, fair, and correct account of the said proceedings before the said lord mayor elect, and what took place on that occasion, and the several facts and circumstances therein detailed and adverted to are likewise true; and the said report contains no false or untrue *28] statement or allegation whatever, wherefore the defendant published, &c. Third plea, that the report, or account in the said newspaper, of the said proceedings at the said Mansion House, whereof the said supposed libels in the declaration mentioned were and are composed, was and is a true, fair, and correct report and account of the said proceedings, and which proceedings did actually take place at the said Mansion House, as is stated in the said supposed libels, to wit, at, &c. Fourth plea, that the several matters and things in the libels contained were and are true in fact. 'There then followed pleas similar to the two last, pleaded separately, to the first and second counts of the declaration; and replication, &c., de injuria sua.

At the trial before Abbott, C. J., at the London sittings after last Michaelmas term, the jury found that the libel did contain a true, fair, and correct report of the proceedings which had taken place before the lord mayor elect, but that the facts stated in the libels were not true. In last Hilary term the plaintiff had obtained a rule nisi for liberty to enter up judgment, notwithstanding the verdict found for the defendant upon those pleas, which alleged that the libel contained a true account of the proceedings before the lord

mayor.

Scarlett, and E. Laws, now showed cause against the rule. The circumstance disclosed in the plea found for the defendants, that the publication was a correct account of proceedings which took place before a magistrate, is an answer to the action. It rebuts the presumption of malice, which, in ordinary cases, arises from the publication of any matter injurious to the reputation

of another, and, upon that ground it has been held lawful to publish *29] the proceedings of courts of justice, even though they contain matter injurious to the feelings of individuals. Rex v. Wright, 8 T. R. 293, Currie v. Walter, 1 Bos. &. Pul. 525. Assuming that the magistrate had no jurisdiction over the subject matter brought before him, and that the question is to be considered as if the matter had been communicated to the lord mayor elect in his private character in the presence of the defendants; still this publication is justifiable within the rule laid down in Lord Northampton's case,

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