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lieu of tithes as aforesaid, all tithes, both great and small, and all payments in lieu of tithes appertaining to the said rectory, and arising and payable upon, out of, or for all and every or any of the lands and tenements within the parish of Calton cum Willingham, should cease, determine, and be for ever extinguished (Easter offerings, mortuaries, and surplice fees only excepted.) The commissioners were also to ascertain the average price of a bushel of wheat for twenty-one years then last past; and at the expiration of fourteen years from the making of the award, either the parishioners or the rector might insist upon having a new average taken; and the yearly rents or payments to him in lieu of tithes were to be increased or diminished, in proportion to the dif. ference between the price of wheat upon the average so taken and that originally taken by the commissioners. The commissioners having ascertained the several matters required by the act, awarded a certain annual payment to the rector, in pursuance of the act, and then awarded, that from a day preceding the date of the award, “all and all manner of tithes, both great and small, arising, growing, and renewing, as well out or from all the lands or grounds by the said act intended to be divided, allotted, and inclosed, and exonerated from tithes, as out of all the homesteads, homecloses *and all other reaso lands and grounds within the said parish, should cease and determine, and be forever extinguished.” In April, 1824, the rector, W. Boldero, was rated to the poor in respect of the annual payment to him by virtue of the award, which in the rate was described as “corn-rent as composition for tithes." The question for the opinion of this court was, whether the rector was liable to be rated in respect of that composition ?
Nolan, in support of the order of the sessions, was stopped by the court.
Marryal, contra. Ir tithes are let for a term of years, the rector or vicar is not rateable in respect of them; and here it may be said, that as no variation in the settlement can be made until the expiration of fourteen years from the date of the award, the tithes have, at all events, been let for that period. The rector in this case has not received tithes, but rents issuing out of the lands in lieu of tithes. It has been held that the clerk is rateable where the tenant is allowed to retain his tithes ; but when they are let, the owner can no more be rated for them than a landlord in respect of the rent of a farm. Under this act the money received by the rector is not for tjthes, but is a rent, and is so called in the act, and the rector has not the choice of receiving the tithes if he pleases ; they are necessarily retained by the occupier of the land. 'The case is very similar to Char field v. Rushton, 3 B. & C. 863, where the parson was held not to be rateable. Lowndes v. Horne, 2 W. Bl. 1252, pro ceeded on the *ground that the payment to the parson was not a rent. #1 ( Littledale, J. It does not follow, because it is called a rent, that all the legal attributes of rents attach. You must look to the substance of the thing. The mode in which the amount of payment is to be ascertained, shows that it ought to be exempt from the burthen sought to be imposed. The commissioners are to ascertain what yearly sum will be equivalent to a certain portion of the lands in the parish, and to award that to the rector. Now, according to Rex v. Hull Dock Company, 3 B & C. 516, the value of the land is the rent it will bring, after paying the poor rate, so that the amount of the poor rate would be deducted from the value of the part awarded to the rector. To hold that he is rateable, would, therefore, be to make him, in effect, pay the rate iwice over.
BAYLEY, J. It is perfectly clear that tithes are rateable to the poor; but this question arises upon an act passed in the 39 G. 3, extinguishing tithes in the parish of Calton, and securing to the rector a certain annual payment in lieu of them. Before that time, Lowndes v. Horne, Rex v. Toms, Doug 401, and Rann v. Picking, Cald. 196, had been determined, from which cases this principle may be collected ; that if, under an inclosure act, a sum of money is given to the rector or vicar, in lieu of tithes which were rateable, that money will also be rateable, unless the liability is taken away by express words in the statute. It appears to me that, in the present case, the money payment is liable to the same burthens as the tithes for which it was substituted. It is, indeed, called a rent, but, in fact, is nothing more than a sum of *490 money *paid annually in lieu of tithes, and is not to have all the atiri.
'y butes of a rent, although the act gives the same mode of recovering it. Then it has been urged, that in valuing the land the poor rate would be deducted, and therefore, the rector would, on that account, get a smaller sum, and ought not to be rated in respect of it. But there is a falacy in that: for, before the statute, the land was charged with a poor rate, payable both by the occupier and the tithe owner; and in the calculation by the commissioners, that part only which was payable by the occupier would be deducted ; and unless the inoney in the hands of the rector were liable in the same manner as the tithes, a loss would be sustained by the parish. For these reasons, I think that the rate was a good one, and was properly confirmed.
HOLROYD, J. I think that the sessions were right in confirming this rate. It is clear, as a general proposition, that not only tithes, but also compensations in lieu of them, are rateable. But it has been argued that we ought, in this case, to consider the tenants of the lands as occupiers of the tithes on a prospective bargain. They cannot, however, be so considered ; for by the act and the award the tithes are extinguished. The compensation is expressly stated to be in lieu of the tithes themselves, and there are no words exempting it from this burthen. I think, therefore, that it was rateable. It is true, that rent of land paid to a landlord is exempt; but it by no means follows that this payment is a rent, although it is called so, and a distress given for the recovery of it. 7. *LITTLEDALE, J. It appears to me that this money was rateable.
I The statute 43 Eliz. c. 2, makes a parson liable in respect of the profits which he receives as parson; and I think that he is equally liable in respect of a corn rent paid by way of composition, as in respect of tithes them. selves, the act of Parliament not containing any express exemption. The payment is not strictly a rent although in common parlance it may be so called. Many things are commonly called corn rents which are not so in reality. It is paid to the rector in lieu of the tithes which are extinguished, but the ability of the rector is not diminished by that extinguishment, and it has been shown by my brother Bayley, that the question is not affected by the mode in which the value of the land would be calculated.
Order of sessions confirmed.
FLINT, Gent., one, &c., v. PIKE, &c.
Dan action for a libel which purported to be a report of a trial, the defendant pleaded
that the supposed libel was in substance a true account and report of the trial : Held, apon demurrer, that this plea was bad. Semble, that although it be lawful for a counsel in the discharge of his duty to utter mar.
ter injurious to individuals, yet the subsequent publication of such slanderous matter is not justifiable, unless it be shown that it was published for the purpose of giving the public information which it was fit and proper for them to receive, and that it was wai ranted by the evidence.
DECLARATION stated, that before the publishing of the libel thereinafter mentioned, the plaintiff' was an attorney, and had been retained, to bring and prosecute a certain writ and plea of waste in the Court of C. P., in which Vol. X.-84
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Thomas Redfern, and others were plaintiffs ; and Sarah Smith, was defend. ant. It then set out the declaration in waste and the plea, that the defendant had not made any waste; and that issue having been joined on the plea, it came on to be tried at the Derbyshire *assizes, 1823; and that the jury rere found that the said Sarah Smith, had not made any waste. The decla. " ration then stated, that the defendant, well knowing the premises, &c., but contriving, &c., maliciously published of and conceraing the plaintiff, the libel, &c., which purported to be a report of the said trial. The libel professed to give a short summary of the facts of the case; and then stated, that A. B. was counsel for the plaintiff's; and that C. D. was counsel for the defendant; and that the latter was both extremely severe and amusing, at the expense of Mr. Flint, the plaintiff's attorney. It then professed to give a few outlines of the speech of the counsel for the defendant, and the part of the speech set out contained some very severe reflections on the conduct of the present plaintiff, with respect to his having brought the action of waste, and having advised that form of action with a view to his own profit. But the evidence given at the trial was not set out. Plea, that the supposed libel was, in substance, a true report of the trial of the said issue. Demurrer and joinder.
Manning, in support of the demurrer. The plea is bad, because it states that the libel contains a true account of the trial in substance. A party is not at liberty to publish the result of evidence, Lewis v. Walter, 4 B. & A. 605, Duncan v. Thwaites, 3 B. & C. 556. Neither can he justify publishing what in his judgment, inay be the substance of a trial. But assuming the plea to be good, in point of form, it is no answer to this action. It is true that an action will not lie for slander spoken, either by a party, or a counsel, in the course of a judicial proceeding. * Brook v. Montague, Cro. Jac. 90, rue
[475 i Rolle's Abr. 87, (M.) pl. 1, Hodgson v. Scarlett, 1 B. & A. 232, but the reason why a counsel acting in discharge of his duty, is privileged when he utters even slanderous matter is, that experience has proved it to be for the advantage of the adıninistration of justice, that counsel so acting should have unlimited freedom of speech. That reason does not apply to any subsequent publication of that slanderous matter, and therefore, that is not privileged. Slanderous matter, however injurious to an individual, uttered by a member of Parliament, in Parliament, is not actionable or indictable; because it is for the public advantage that members of Parliament should have unlimited freedom of speech. But the subsequent publication of the slanderous inatter, although originally uttered in Parliament, has been held to be criminal, Rex v. Creevey, 1 M & S. 273, Rex v. Lord Abingdon, 1 Esp. 226. Upon the same principle, the subsequent publication of slander, uttered by a counsel in the course of a judicial proceeding, is wrongful, and therefore, actionable. Supposing such a ple:t as this not to be bad in itself, and under all circumstances, as tending to too vague an issue; still, in the present case, it is repug. nant to the libel itself, which, upon this part of the record, the defendant admils that he has published. For it is evident, upon reading the libel, that the paragraph could not be, in substance, a true account of the trial.
N. R. Clarke, contra. As to the form of the plea. The allegation that the libel is, in substance, a true report of the trial is equivalent to an allegation, that it is a true *report, for if it had been stated that it was a true res report, it would have been sufficient to have proved it true in sub-1 stance. In Weaver v. Lloyd, 2 B. & C. 678, one of the pleas, to a declaration upon a libel was, that the matters contained in it were true “in substance and effect ;" and the court held, that this must mean that each particular of the charge contained in the libel was true in substance; requiring, therefore. as strict proof as they would have done if the plea had been that the matters contained in the libel were true. Then, as to the other point, Curry v. Walter, i Bos. & Pul. 525, is an authority to show, that an action cannot be inaintained for publishing a true account of the speech made by a counsel, in 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 parti. cular 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 #499 be competent to form a correct judgment upon such a subject. To
*"] 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 correc! 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 qualitied 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 oinitted 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 *1407 issue upon the plea. It can never be essential to the *truth of a report,
that every unimportant matter should be stated; otherwise the pleadings, &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 detail: ng 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 rugo him in the course of a cause which are injurious to individuals. Those 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 Abingilon, 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, i 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 not to publish any thing, if they are not competent to judge. whether!
ser (*480 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 inatter, 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. Not. withstanding 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 opportunity *of judging how far the matter uttered by the counsel is war 161 ranted by the facts proved. Therefore, in the course of the adminis.lt tration 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 10 the party injured in a common action for slander ; but, that it would be necessary to