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denied the principal facts alleged against him as aforesaid, and was eventually admitted to bail, himself in 1001, and two sureties in 501. each, for his appear. ance again on Tuesday then next before the said justice, to answer the said charge or complaint, to wit, at London aforesaid, in the parish, &c., aforesaid. Wherefore, the said defendants printed and published, and caused to be printed and published, the said supposed libels in the introductory part of this plea mentioned, in copies of the said public newspaper called the Morning Herald of the said 10th of July, as and for, and the same being a true, fair, just, and correct report and account of the said proceedings which so took place on the said 8th of July, in the year aforesaid, at the said police office on the occasion aforesaid, and the said report or account thereof, composing the said last mentioned supposed libels, was so printed and published as aforesaid, in the said copies of the said newspaper, as public news of the rsary said last *mentioned proceedings, and with no other intent, and for no
y other object or purpose whatsoever, to wit, at, &c. Sixth plea, as to the printing and publishing, and causing to be printed and published, the said several supposed libels in the said declaration mentioned, which contain all or any part of the following matter : that is to say, “ Andrew Duncan the attorney, who was charged a week ago with attempting to violate the person of a girl of thirteen, named Ann Chandler, was again examined, but no further evidence was heard, and he was ordered to enter into recognizances to the amount of 2001. for his appearance at the sessions, and all the witnesses were bound over to prosecute.” The said defendants by like leave, &c., here say, that the said last mentioned several supposed libels were, and are copies only of one and the same supposed libel, printed and published by the said defendants in several copies of the said public news. paper, called the Morning Herald, of Tuesday the 16th of July, 1823, aforesaid; and that after the said proceedings at the said public police office in the last preceding plea mentioned, had taken place as in that plea is mentioned, and which did actually take place as is therein stated and set forth; and before the said 16th of July, 1823, to wit, on the 15th of July, in that year, the said Andrew was publicly examined at the said police office before the said justice, respecting the said charge or complaint in the said last plea mentioned, but no further evidence was on that occasion heard respecting the said charge or complaint; and he, the said Andrew, was then and there ordered by the said justice to enter into recognizances to the amount of 2001., for his appearance at the sessions of the peace to be holden in and for the seen said county of Middlesex, to answer the said charge *or complaint.
° And all the witnesses so examined as in the said last plea mentioned, were bound over to prosecute for the same at such sessions, to wit, at, &c. Wherefore, the said defendants printed and published, and caused to bo printed and published, the said supposed libels in the introductory part of this plea mentioned, in copies of the said public newspaper called the Morning Herald, of the said 16th of July, as and for, and the same being a true, fair, just, and correct report and account of the said proceedings, which so took place on the said 15th of July, at the said police office on the occasion last aforesaid; and the said report or account thereof, composing the said last mentioned supposed libels, was so printed and published in the said news. paper as public news of the said last mentioned proceedings, and with no other intent, and for no other object or purpose whatsoever, to wit, at, &c.
The seventh plea was pleaded to a part only of the supposed libel of the 10th of July, in all other respects it resembled the fifth plea.
The eighth plea varied in like manner from the sixth. To these pleas the plaintiff demurred, and assigned several special causes, most of which are noticed in the argument.
Patteson, in support of the demurrer. The second plea is clearly bad, inasmuch as the libel does not profess to be an account of every thing which
took place at Bow Street. It only gives a summary, or what the writer considered the result, of what took place. That being so, unless the publication can be assisted by the plea which sets out what actually did take place, the plea is bad, Lewis v. Walter, 4 B. & A. 605. In that case the libel purported to be a *speech of counsel at the trial of the plaintiff on a criminal reses charge; and it stated, after setting out the speech, that a witness was lo called who proved all that had been stated by counsel, and that the defendant was immediately after that acquitted upon a defect in proving some matter of form. The plea stated that in fact such a speech was made, and that the witness called, proved all that had been so stated : but it did not set out the evidence, or justify the truth of the charges made in the counsel's speech : and the court held that the plea was insuflicient. The principle of that decision applies here; and the second plea is not aided by that which sets out the depositions. This publication in a newspaper was circulated throughout the country, but the plea put upon the record where an action is brought against a party cannot be so circulated; and it would be of no effect in taking away the sting of the libel unless published in the same newspaper. Then, if that be so, none of the pleas can cure the original defect in the libel, in not having stated the evidence.
The third plea states that the matters contained in the libel are true. Now, if the import of that plea be that the libel contains a correct statement of what took place at Bow Street, it is open to the same objection as the second plea. If, on the other hand, the import be that the plaintiff is guilty of the charge brought against him, it is a bad plea, because it ought to have been more particular, and the facts ought to have been enumerated, and time and place ought to have been alleged, l'Anson v. Stuart, 1 T. R. 748, Homes v. Catesby, I Taunt. 543, Jones v. Slerens, 11 Price, 235. This plea is also bad, *because it is uncertain whether it means that the report was rareo true, or that the charge was true.
The same objection applies to the fourth plea as to the second.
There is another objection also which applies to these three pleas, namely, that the matters alleged amount to the general issue; for, assuming the libels to be a correct account of what took place at Bow Street, the pleas do not justify the main charge, but go only to the motive, which is a mere negation of malice, and that might be proved on the general issue only; and the effect of pleading that in bar would be to withdraw the question of malice from the consideration of the jury, Lewis v. Walter, 4 B. & A. 605.
The fifth plea, which is contined to the first libel, states all the depositions. One objection to that plea, which applies also to the seventh, is, that it appears upon the face of the plea that the libel does not contain a true account of all that took place, because it does not contain the evidence of the surgeon, which is very material to show the innocence of the plaintiff'. Supposing, however, that the statement of the evidence in the plea can supply the defect in the publication, and that that does contain a true summary of what took place at Bow Street, then the question will be raised, whether a party is to be allowed to publish an account of ec parte proceedings at a police office, containing scandalous and defamatory matters against any individual. It has been expressly held, that it is an offence to publish ex parte proceedings at a police office. That was ruled by Heath, J., in Rex v. Lee, 5 Esp. 123, and in Rex v. Fisher, 2 Camp. 563, by Lord * Ellenborough, on the reco ground that such publications have a tendency to pervert the public mind, and to disturb the course of justice, by preventing a fair trial. In Rex v. Fleet, 1 B. & A. 379, this court granted a criminal information against a party for publishing in a newspaper, a statement of the evidence given before a coroner's jury, and the opinions of Lord Chief Justice Abbott, and Mr. Justice Bayley, seem to be founded chiefly upon the ground that such a publication had a tendency to prevent a fair trial; and in Rex v. Clement, 4 B. &
A. 218, this court supported a fine imposed upon the editor of a newspaper for publishing proceedings while the parties were still on their trials. All these cases were certainly cases of indictment or information, but no distinction can be taken in this respect between an indictment and an action. The indictment proceeds on the ground that the publication has a tendency to prejudice the public administration of justice, by preventing a fair trial, and that it is, therefore, unlawful. Now, if a party sustain a special injury thereby, he ought to be allowed to maintain an action. There is, indeed, this distinction between an indictment and an action for a libel, that truth is no justification in the former case, but it is in the latter. The reason of that, however, is, that an indictment lies because the act committed has a tendency to promote a breach of the peace; and therefore, truth, as it may produce that effect, is no justification. That distinction might apply to these cases if the publication of ex parte proceedings tended to a breach of the peace, but the reason assigned why an indictment lies in such cases is, that the tendency of the publication is to prevent a fair trial. Now, that is injurious to the
01 party whether he be *innocent or guilty. Besides, here the proceed
Ting did not take place before a tribunal to which the public could claim admittance as of right, Cox v, Coleridge, 1 B. & C. 37. In that respect these proceedings differ materially from those in a court of justice, which is open to all the world. Then if a party is present at such examination by the permission of the magistrate, he can have no more right to publish any natter which passes there, and which is injurious to an individual, than if it took place in any private room. Besides, it appears from what fell from Lord Kenyon, in Rex v. Creevey, 1 M. & S. 273, that even the proceedings of a court of justice cannot be published under all circumstances. Rex v. Mary Carlisle, 3 B. & A. 167, shows that a party is not at liberty to publish any matter which is seandalous and injurious to another, merely because it passes in a court of justice; and so, a fortiori, he cannot publish matter which has passed in a police office, which is not an open court of justice, and where the proceedings are ex parle. The publication of them has a neces. sary tendency to prevent a fair trial in the ulterior stage of the investigation. Rex v. Wright, 8 T. R. 293, will probably be cited on the other side, but that was a publication of a report made by the House of Commons; and in Rex v. Crecvey, I M. &. S. 273, it was held that a speech made in that house cannot lawfully be published if it contains libellous matter. Then as to the policy of such publications. There is indeed one contingent advantage which may arise from them, but that is counterbalanced by numerous inconveniences. 500 The possible advantage is, that by accident the * publication may catch
+ the attention of persons who otherwise might never hear of such a proceeding, and who might come forward as witnesses for or against the party accused ; and might, therefore, have a tendency to assist the administration of public justice.
On the other hand, if reports of this description are to be published, it will, under all circumstances, be at the expense of harrassing the feelings of every person who is unfortunately taken up upon any charge. When once such a charge is published, it is extremely difficult to take off the effect of it by any counter statement, and it may possibly meet the eye of thousands who may never hear that the party accused was ultimately proved innocent or guilty. The inconveniences, therefore, intinitely outweigh any good that may arise from such publications.
E. Lawes, contra. The question is, whether to publish a true account of the substance of what passed before a magistrate at a police office, respecting a prisoner there present, and charged with an attempt to commit a rape, published in a newspaper as public news without comment of any sort, or any malicious or defamatory motive, be justifiable ; and if so, whether the parti. culars of the defendant's examination, as well as all the indecencies mentioned
in the depositions, must be detailed in the publication, or whether it is sufficient to state fairly the substance of what passed before the magistrate. It may be admitted, that reports of legal proceedings may be libellous whether ex parte or not, but all the cases in which they have been held to be so libellous, may be reduced to three classes ; first, where the account published has been false or highly colored, *Waterfield v. The Bishop of Chichester, *240 2 Mod. 118, or, secondly, where the narrator has added some comments or opinion of his own reflecting on the court or the party, Stiles v. Nokes, 7 East, 493, Lewis v. Clement, 3 B. & A. 702, Rex v. Fleet, 1 B. & A. 379, Carr v. Jones, 3 Smith, 491, Rex v. Lee, 5 Esp. 123, Rex v. Fisher, 2 Campb. 570, or, thirdly, where he has made the report a vehicle of blas. phemy, Rex v. Mary Carlisle, 3 B. & A. 167. The same doctrine applies to reports of proceedings in Parliament, Rex v. Lord Abingdon, 1 Esp. 228, Rex v. Creevey, 1 M & S. 279. The publication in question does not contain a false or highly colored account of the proceedings; nor is it accompanied with comments reflecting on the character of the individual ; nor is there any thing immoral or indecent in it; it is not, therefore, within any of the excepted cases, the publication, therefore, not having been prohibited by any express order of the magistrate, is lawful within the general rule, as containing a fair and true account of the proceedings of a court of justice. There is no express authority to show, that such a publication can be made the subject of a criminal charge, much less that it is the subject of a civil action at the suit of the party accused. In Rex y. Lee, 5 Esp. 123, the decision of Heath, J., was perfectly correct, because the libel contained, besides the depositions, expressions and representations prejudicial to the character of the person accused, and therefore, the evidence offered to show that the statement of facts was warranted by the depositions before the magistrates was not admissible. It is true that the learned Judge expressed an opinion, *that i n the publication of ex parte evidence before a trial was of itself highly criminal, but that opinion was extra judicial. In Rex v. Fisher, 2 Campb. 570, the publication, instead of merely given the examination, contained observations prejudicial to the party accused; and in Rex v. Fleet, 1 B. & A. 379, the publication contained a comment upon the facts which had occurred, and charged that the civil power had occasioned great mischief and had called out the military unnecessarily.
Assuming, however, that the publication of evidence taken before a magistrate in a preliminary inquiry is an indictable offence, it by no means follows that the party accused can therefore maintain an action against the publisher before any trial has taken place. Here it is alleged, that he never was suspected of the offence charged in the libel. But it appears upon the record that he was suspected, and that in consequence of those suspicions he was examined before a magistrate. There is an averment also that the charge is undetermined. That of itself is an answer to the action. He may or may not be guilty. The defendants have made no charge against him, they have only stated that he had been charged in the legal way before a magistrate. Now, if he be found guilty and the law be put in execution against him, he cannot be said to have sustained any injury by this publication, and if he be acquitted, he will have sustained no injury from it. The only case in which he could sustain injury would be, if he were wrongfully convicted in consequence of the publication ; but he has brought his present action before a trial has taken place, and before he can have sustained *any injury: the rose declaration, therefore, does not disclose any sufficient cause of action, and on that ground the defendants are entitled to the judgment of the court. There is a great distinction between proceedings in a civil action and proceedings by indictment. An indictment for a libel has nothing to do with the character of the person libelled up to the moment of the indictment. The object of it is to prevent a breach of the peace; but in civil actions, the loss of character is the ground of the action. Another distinction is, that to maintain an action the party must have sustained an injury. Thus, though a pub lic nuisance should be a particular inconvenience to a party, it does not follow that he can maintain an action. To do that, his inconvenience must be shown to be different from that of the rest of the king's subjects, Iveson v. Moore, I Salk. 15. Now, at the time when this action was commenced, the plaintiff had not sustained any particular injury. He had only suffered that inconvenience which is supposed to result to the public from such a publication, viz. the tendency of it to impede the due administration of justice. The third distinction between indictments and civil actions for libels is, that in the former truth is no answer ; in the latter it is. But, both in a civil action and in an indictment the libel must contain something more than defamatory matter, there must be an evil intention in the party publishing the libel, and an action cannot be maintained where there is a total absence of malice in the defendant. In Carpenter v. Tarrani, Cas. Temp. Hardw. 339, the action was for these words, “Carpenter was in Winchester jail, and tried for his life, and would have been hanged had it not been for Leggat, for breaking open the 1995 "granary of farmer A., and stealing his bacon;" and there Lee, J.,
I said, “If these words had been only a narrative of what passed at the trial, he might have pleaded it so, and have justified, though at the trial it could only have been given in evidence in mitigation of damages ; the true gist of the action with respect to the defendant being, whether he spoke the words falsely and maliciously." But Curry v. Walter, 1 Esp. 456. i Bos. & Pol. 525, is an authority expressly in point, for the libel contained an account of an application to the Court of King's Bench for a criminal information. Now that was an ex parte proceeding, and Eyre, C. J., laid it down, that a bona fide report containing the substance of the speech delivered in court was not actionable, and that opinion was afterwards confirmed by the Court of Common Pleas. It is true, that in that case some stress was laid upon the circumstance of the proceeding having taken place in a court of justice which was open to all the world ; but in this case although it was in the power of the magistrate to exclude the public, Cox v. Coleridge, 1 B. & C. 37, Rex v. Borron, 3 B. & A. 432. Yet he did not do so, and therefore, in fact, it was an open court. The case of Curry v. Wuller, remains uncontradicted by subsequent authorities. It is recognised by Lord Ellenborough, in Styles v. Nokes, 7 East, 493, and in Rex v. Fisher, 2 Campb. 570. In Rex v. Wright, 8 T. R. 293, it was held, that the printing of a true copy of a report of a committee of the House of Commons, containing a charge inju rious to an individual was not libellous. Upon the same principle, the publication of that which passed before a magistrate cannot be libellous. These esse two cases are authorities *expressly in point, and they are only op
J posed by a few nisi prius dicia. The argument on the other side assumes, that such a publication will prejudice a fair irial founded on a fair accusation. Now it is to be observed, that is an action will lie for such a publication, it might on the same principle be maintainable in respect of slanderous matter contained in a hand bill issued for the apprehension of persons suspected of offences, (Delaney v. Jones, 4 Esp. 191, is an authority to the contrary,) or for saying that the grand jury had found a true bill against A. B. for such an offence. Secondly, it assumes that the hearers will keep the proceedings secret. Thirdly, that what may lawfully be communicated to as many people as the police office will conveniently contain cannot lawfully be communicated to others. Fourthly, that there will be a trial. Now no intention to prosecute is averred in this case, and the case may have been compromised or otherwise abandoned But, in fact, publications of this sort have a tendency to protect innocent persons by communicating knowledge of the accusation to their friends and enabling them to come forward in their defence. It is also calculated to bring forward wito