applying for a criminal information, although the publication be injurious to an individual; and the reason why the publication of the proceedings in courts of justice, though injurious to individuals is lawful, is, that the general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. [Rex v. Wright, 8 T. R. 293, Bayley, J. Assuming it to be lawful to give a history of a trial, does it therefore follow that it is lawful to publish every part of it which is injurious to an individual? Is not a party bound to abstain from publishing that part which is injurious to individuals?] It may be a very nice question, whether a particular matter be so injurious to an individual as to make the subsequent publication of that matter, libellous or not; and the editors of newspapers cannot

be competent to form a correct judgment upon such a subject. To *477] hold, therefore, that they must abstain from publishing any part of the proceedings of a court of justice, which contains slanderous matter, would have the effect of preventing the publication of such proceedings altogether: besides, there are many cases where strong observations on the conduct of u witness are properly made by counsel, in the course of a cause. A correct report of the proceedings in such a trial cannot be given without giving those observations. It is important to the public to know, not only the verdict in a cause, but the ground upon which such verdict proceeded, and, in many instances, that verdict may have depended upon the credit given by the jury to a particular witness. It may, therefore, be fit, that the public should be informed of the observations made by counsel, on the testimony of that witness. [Holroyd, J. No facts are stated in the plea to show that the observations of counsel were warranted.] It is not a true report, if anything is contained in it which did not pass at the trial, or if any thing is suppressed, which would in any respect have qualified that part which reflects upon the conduct of the plaintiff; but otherwise it is a true report, as far as respects this case, although it may not state every thing which was said upon the trial. The observations here made upon the plaintiff, are in respect of his having resorted to an antiquated form of action, and it sufficiently appears from the report, that such was the form of action. If any evidence, or other matter omitted in the report would have shown these observations to have been unfounded, then it is not a true report, and the plaintiff should have taken

issue upon the plea. It can never be essential to the *truth of a report,

*478] that every unimportant matter should be stated; otherwise the plead

ings, &c., must be set out at length.

BAYLEY, J. It may be, and I think, is extremely beneficial that the public, should be apprized of many things which occur in courts of justice, and of a great variety of the cases which there undergo discussion. The publication of such cases is lawful, because it is useful to the public, but it does not thence follow that any person is at liberty to publish every thing which occurs in courts of justice, or that he is at liberty to publish not only the whole, but even part of a trial when that part is libellous on an individual. The libel in question purports to set forth a speech of counsel for the defendant, containing many severe observations on the conduct of the attorney for the plaintiff in the cause. If the evidence had been stated in the libel, the reader of it might have formed his own judgment, how far the observations were well founded. The question is, whether the defendant without detailing the evidence was at liberty to issue to the world this speech of counsel which contained matter injurious to the present plaintiff. The speech of a counsel is privileged by the occasion on which it is spoken; he is at liberty to make strong, even calumnious observations against the party, the witnesses and the attorney in the cause. The law presumes that he acts in discharge of his duty, and in pursuance of his instructions, and allows him this privilege because it is for the advantage of the administration of justice, that he should

have free liberty of speech. But, although for the purpose of the administration of justice, a counsel has that privilege, it does not follow that all persons may afterwards publish *in a newspaper the observations made by him in the course of a cause which are injurious to individuals. Those [*479 observations are made in the hearing of numerous auditors, and of the jury, and for the purpose of influencing the latter in their decision. The auditors and the jury have an opportunity of judging how far such observations are warranted by the evidence, but here the publisher of this libel gives his readers no such opportunity. There are cases in which the slanderous matter has been justified by the occasion on which it was uttered and the subsequent publication of that matter has been held to be actionable, or indictable, Rex v. Creevy, 1 M. & S. 273. Rex v. Lord Abingdon, 1 Esp. 226. There the defendants were held to be liable criminally for publishing in a newspaper speeches which they had uttered in parliament, and that is not a new doctrine, for in the case of Lake v. King, 1 Saund. 120, a petition presented to a committee of parliament was ordered by the House of Commons to be printed for the use of the members, but it was published elsewhere, and such publication was held to be unjustifiable, because it went beyond that which the privilege of parliament required. So it seems to me, that the subsequent publication of a speech made by a counsel in the course of a cause containing observations injurious to the character of a party, attorney or witness in the cause, is not lawful, because such publication is not required for the due administration of justice. It is said that it will be a hardship on the proprietors of newspapers, to hold that it is not lawful to publish the speeches of counsel in all cases, inasmuch as they, the proprietors, are not competent to form a judgment as to what is libellous, and what not; *but they ought [*480 not to publish any thing, if they are not competent to judge, whether it be injurious to an individual or not. My opinion is, that a party is at liberty to publish a history of the trial, viz. of the facts of the case, and of the law of the case as applied to those facts, but that he is not at liberty to publish observations made by counsel injurious to the character of individuals. It was not necessary for the purposes of this cause to go so far as I have done, yet as that, after much consideration, is my opinion, I think it right to declare it. It seems to me that, although the counsel was privileged to speak the matter alleged in this libel, no other person was privileged to publish that matter, and on that ground I think the plea is bad.

HOLROYD, J. I think that the plea which states that the libel is in substance a true report and account of the trial, is not a sufficient justification. Notwithstanding the facts disclosed in the plea, it may be perfectly true, that the publication may have been made from the malicious motives alleged in the declaration. Then there is no denial in the plea that the libel was published with such motives, nor are there any circumstances or facts stated to show to the court that this publication was for the purpose of giving such information to the public, as it was proper or requisite they should have. With a view to the due administration of justice, counsel are privileged in what they say. Unless the administration of justice is to be fettered, they must have free liberty of speech in making their observations, which it must be remembered may be answered by the opposing counsel, and commented on by the Judge, and are afterwards taken into consideration by the jury, who have an opportu nity *of judging how far the matter uttered by the counsel is war[*481 ranted by the facts proved. Therefore, in the course of the administration of justice, counsel have a special privilege of uttering matter even injurious to an individual, on the ground that such a privilege tends to the better administration of justice. And if a counsel in the course of a cause utter observations injurious to individuals, and not relevant to the matter in issue, it seems to me that he would not, therefore, be responsible to the party injured in a common action for slander; but, that it would be necessary to

sue him in a special action on the case in which it must be alleged in the declaration and proved at the trial, that the matter was spoken maliciously and without reasonable and probable cause. This may be illustrated by the common case of a false charge of felony exhibited before a justice of the peace there an action upon the case, as for defamation, will not lie, because the slan der is uttered in the course of the administration of justice; but the party complaining is bound to allege that it was made without reasonable or probable cause. It by no means follows, however, because a counsel is privileged when, in the course of the administration of justice, he utters slanderous matter, that a third person may repeat that slanderous matter to all the world. The repeating of such slander is not done in the course of the administration of justice, and therefore is not privileged. In Lake v. King, 1 Saund. 120, the reprinting of a correct copy of a petition to the House of Commons, which had been printed for the use of the members, was held to be illegal. Rex v. Creevey, I M. & S. 273, and Rex v. Lord Abingdon, 1 Esp. 226, are also in

point to show that, although the slanderous matter uttered may be *482] privileged by the occasion on which it is spoken, the subsequent pub

lication of that matter may be criminal. Besides, this plea only states that the report was true in substance. I think that is not sufficient; it ought to have stated some facts to show that it was true in substance; and then it would be for the court to judge whether it was true in substance, or not. But I am of opinion that a person is not justified in publishing throughout the kingdom caluninious observations which a counsel in a cause may think it his duty to make. If this plea had proceeded to state any thing to show that it was material and necessary that the public should be made acquainted, not only with the facts of the case, but with the observations made on them, and had shown that those observations were warranted, and that the plaintiff deserved the imputation thrown on him, the plea might have been good; but that would have been a very different plea from the present. I think, therefore, that the plea is defective in point of law, and that there must be judgment for the plaintiff.

LITTLEDALE, J. I think that this plea, which states that the libel was in substance a true and accurate report of the trial, is not sufficient. By substance, I apprehend, is meant the inference which the person who published the libel draws from the whole of what passed at the trial. The plea, therefore, amounts to this, that the libel, in his judgment, is a true account and report of the trial. Now, in my judgment, it appears upon the face of the declaration that the libel does not contain a true and accurate report of the trial, because it neither details the speech of the counsel for the plaintiff nor the evidence, nor *even the whole of the speech of the counsel for the *483] defendant. But even supposing that this had not appeared on the face of the declaration, and that the libel professed to give the speeches of both counsel and the evidence, still I think that this plea, which states that the libel contained in substance, a true and accurate report of the trial, is not good in point of form. In an action for a libel, it is necessary to set out in the declaration the words of the libel itself, in order that the court may see whether they constitute a good ground of action. In Wright v. Clement, 3 B. & A. 503, a declaration stating that the defendant published a libel, containing false and scandalous matter, "in substance as follows," and then setting out the libel with innuendos, was held to be bad in arrest of judgment, because it professed to give only the general import and effect of the libel, and not a copy of it. For the very same reason, it appears to me that it is not suffici ent to state in a plea that the libel is in substance, a true and accurate report of the trial. I think the plea ought to show the libel to be a true account and report of the trial. I do not mean to say that it is necessary that the supposed libel should contain every word uttered at the trial, or that unnecessary matter may not be omitted. If issue had been taken on this plea, the jury, in

order to decide whether the libel was in substance, a true report of the trial, would have to consider the relation of all the different parts of the libel to each other, and to say if, upon the whole, it was a fair abstract. Now, that would be a most difficult issue to try; but there would be no difficulty if the issue were whether the libel was a true and accurate report of the trial. The question as to the general *right of proprietors of newspapers to pub[*484 lish an account of proceedings in courts of justice, does not necessarily arise in this case. If they profess to give an account of the trial, I am of opinion they ought to give a true and accurate report of the trial; so that the court, when the record comes before them on demurrer, may see whether it was a trial proper to be published; and, on the other hand, if it goes to issue, that the jury may be able to decide if it be a true and accurate report. I think that the only case in which an editor of a newspaper can justify a libel on the ground that it contains an account of a trial, is where he really gives a true and accurate report of it; and even in that case it will be for the court to consider whether it was lawful to publish it. I am, therefore, of opinion that this plea is bad, and that there must be judgment for the plaintiff.

Judgment for the plaintiff.

*SCRATTON v. BROWN.

[*485

By lease and release dated in 1773, A. B. lord of the manors of M. H. and P. P. bargained and sold unto C. D. E. F. & G. H. “all that messuage, tenement, boat-house, &c., and also all that and those the sea-grounds, oyster-layings, shores, and fisheries of him A. B., commonly called and known by the name and names of M. H. and P. P. shores or sea-grounds, with full and free liberty to C. D. E. F. and G. H. and their heirs and assigns for ever to fish, dredge, and lay oysters thereon, and from thence to take and carry away the same; which said sea-grounds, oyster-layings shores and fisheries, extended from the south at low water mark, to the north at high water mark, and from certain sea grounds on the east to other sea grounds on the west. And all which said sea-grounds, oyster-layings, shores, and fisheries thereby granted, released, &c., contained in the whole by estimation eight hundred acres of land covered with water, or thereabouts, as the same were beaconed, marked, and stubbed out. Reservation to the grantor, his heirs, and assigns, lord of the two manors, of all manner of fish royal, and all wrecks of the sea, flotsam, jetsam, and ligan within the said manors, and all manner of franchises." And by the tenendum the grantees were to hold the messuage, tenement, and boat-house, sea-grounds, oyster-layings, shores or fisheries, hereditaments and premises, with the appurtenances of the grantor, lord of the two manors, by such suit of court, and other services as were or of right ought to be done and performed by other the freehold tenants of the same respective manors seised of estates of inheri tance in fee: Held, that by this deed the right of soil in the sea shore passed to the grantees.

It appeared that since the date of the deed the sea had imperceptibly and gradually encroached upon the land, and consequently that the high and low water mark had varied in the same degree. It was held, that by the deed, the right of soil in that portion of land which from time to time lay between high and low water mark passed to the grantees.

TRESPASS for breaking and entering three closes of the plaintiff, situate in the parish of Prittlewell, in the county of Essex, being respectively to the southward of the cliff, and part or parcel of the now beach or shore, and with spades, &c., turning up the soil of the said closes, and taking and carrying away large quantities of shingle and stones, and converting the same to the defendant's use. Plea, not guilty. At the trial before Graham, B., at the Spring assizes, for the county of Essex, 1825, it appeared that the plaintiff, was tenant for life of an estate at Southend and Prittlewell, bounded on the south by the sea, and that he was also lord of the manors of Middleton Hall, and Prittlewell Priory. The defendant was a manufacturer of Parker's

cement, and had, at different times, taken stones, for the purpose of *making the cement, from the sea beach and sea shore adjoining the *.86] plaintiff's manors. Some of them had been taken between high and

low water mark, and some had been taken above high water mark. The plaintiff, in order to show that the space between high and low water mark elonged to him, proved that from time to time he had exercised acts of wnership there. The defendant took the stones under the authority of one Taylor, in whom was vested an interest in the shore conveyed by the plaintiff by lease and release, bearing date the 27th and 28th of September, 1773. to 7. Lee, D. Harridge and W. King. The release was made between those persons and D. Scratton, the present plaintiff, described as eldest son and heir-at-law of D. Scratton, deceased. It recited that by lease and release of the 17th and 18th of January, 1770, and by a recovery suffered in pursuanre thereof, in Hilary term, 10 G. 3, the messuage, tenement, or boat-house, seagrounds, oyster-layings, shores, fisheries, and hereditaments thereinafter mentioned, amongst other hereditaments therein comprised, were conveyed and assured, or intended so to be, unto and to the use of the said D. Scratton, (deceased,) his heirs and assigns for ever; and that D. Scratton, had contracted with T. Lee, D. Harridge and W. King, for the absolute sale to them and their heirs of the said messuage, tenement, boat-house, sea-grounds, oysterlayings, shores, fisheries, and hereditaments, for the sum of 6000l. The indenture then witnessed, that in pursuance of the recited contract, and in consideration of the sum of 60007., paid as therein mentioned, which was agreed to be the full consideration money, for the absolute purchase of the messuage, tenement, or boat-house, sea-grounds, oyster-layings, shores, fisheries, and premises, he the said *D. Scratton, had bargained, sold, *487] released, &c., unto the said T. Lee, D. Harridge, and W. King, in their actual possession then being, by virtue of a bargain and sale made to them, the day next before the date of the release, for one year, and to their heirs and assigns, all that messuage, tenement, or boat-house, with the gardens, stables, outhouses, and buildings thereunto belonging, situate at a place called Southend, in the parish of Prittlewell aforesaid; and also all that and those sea-grounds, oyster-layings, shores, and fisheries of him the said D. Scratton, commonly called by the name or names of Milton, otherwise Middleton Hall, and Prittlewell Priory shores, or sea-grounds, or by the name of one of them, or by whatever name or names the same were or had been theretofore called or known, situate, lying, and being in the parish of Prittlewell aforesaid, or in some other parish or parishes thereunto next or near adjoining, with full and free liberty to and for the said T. Lee, D. Harridge, and W. King, and their heirs and assigns for ever, to fish, dredge, and lay oysters thereon, and from thence to take and carry away the same, at their and every of their free wills and pleasures; which said sea-grounds, oyster-layings shores, and fisheries did extend from the south, at low water mark, to the north at high water mark, and abutted west, towards Leigh aforesaid, upon the lands or sea-grounds of E. Tyrrel, Esquire, called Chalkwell Hall, and owards the east upon the sea or oyster grounds of Thomas Drew, Esquire, in the said county of Essex; and all which said sea grounds, oyster-layings, shores, and fisheries thereby granted, released, and conveyed and mentioned, or intended so to be, did contain in the whole, by estimation, eight hundred acres of land covered with water, or thereabouts, as the same were *beaconed, marked, and stubbed out, and were then in the tenure or *488] occupation of the said T. Lee, D. Harridge, and W. King, their under tenants or assigns, together with all and all manner of ways, &c., (saving, except, and reserving unto the said D. Scratton, his heirs and assigns. lord or lords of the respective manors of Prittlewell Priory, and Milton, otherwise Middleton Hall, out of the grant and conveyance thereby made, all and all manner of fish royal, and all wrecks of the sea, flotsam, jetsam, and ligan,