1824. DUNCAN v. THWAITES. That both sides, aud all the decisions and opinions of Judges, that have any bearing on the question, were quoted on the one side or the other. It would be an unnecessary employment of the time of the Court to comment on all these authorities. It is sufficient to say that there is not one of them which plainly supports the affirmative of this proposition, and that there are many expressly declaring the negative. The case approaching nearest, and certainly approaching nearly, to the affirmative, is that of Currie v. Walter, reported in 1 Esp. 456, and 1 Bos. and Pul. 522. case, which is undoubtedly a great authority in itself, derives additional weight from the manner in which it is mentioned by Mr. Justice Lawrence, in the subsequent case of Rex v. Wright; but it has not received the sanction of subsequent judges, and it differs in some important facts from the present case. It was an account of a proceeding in this Court-a Court instituted for final determination, as well as preliminary inquiry, and whose doors are, as they ought to be, open to as many of the public as can be conveniently accommodated within its walls. The proceeding now in question was before justices of the peace, and was of a kind which they may lawfully conduct in private, whenever they think fit so to do. That proceeding, which was the foundation of the action in Currie v. Walter, terminated by a refusal of the application, and not by putting the subject into a train for further inquiry and trial. The proceeding in question terminated, in the first instance, by holding the accused to bail for his future appearance before the justice, and finally, by holding him to bail to take his trial before a jury. Such a trial therefore might be expected at the time of each of the publications. This Court has on more occasions than one, within a few years, been called upon to express its opinion judicially on the publication of preliminary and ex-parte proceedings, and has on every occasion delivered its judgment against the legality of such proceedings, as was done by Mr. Justice Heath, in the year 1804, in the case of Rex v. Lee (a). Other Judges have delivered (a) 5 Esp. 123. opinions to the same effect, and it is well known that many other persons have lamented the inconvenience and the mischievous tendency of such publications. They were, within the memory of many persons now living, rare and unfrequent. They have gradually increased in number, and now unhappily are becoming very frequent and numerous; but they are not on that account the less unlawful, nor is it less the duty of those to whom the administration of justice is entrusted, to express their judgment against them. I have pointed out some distinction between this case and Currie v. Walter, but we wish it not to be inferred from thence, that we think the publication of ex-parte proceedings, even in this Court, is to be a matter allowable by law; but that point will remain to be considered whenever the question shall properly arise; it does arise in this case. It was further contended, that even supposing publications of this kind to be so far unlawful as to render their authors amenable to the criminal law, by reason of the public inconvenience and mischief, yet that the party himself could not maintain a civil action in respect of such publications, or at least that the plaintiff was barred of his action in the present case by the denial of malice, which denial was supposed to be admitted by the demurrer. If, how ever, a plea is bad in law, a demurrer admits no fact alleged in it. I take it to be a general rule that a party who sustains a special and particular injury, by an act which is unlawful on the ground of public injury, may maintain an action for his own special injury; and if publications like the present tend to prevent or impede the due administration of justice towards persons accused of offences, it is impossible to say that the individual, whose trial may be affected by them, does not sustain a special and peculiar injury even in that view; and he certainly sustains an injury to his character of the same nature as the injury to any other person by any other species of defamation. I take it to be a general rule, that every act, unlawful in itself and injurious to another, is considered in law to be done malo animo towards 1824. DUNCAN v. THWAITES. 1824. DUNCAN v. the person injured; and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may THWAITES. have been made on some innocent occasion than for any other purpose. There are some acts which in themselves are not unlawful, but which become so only by reason of their injury to others, which in all civil actions are charged to be maliciously done. Take the common case of an offensive trade, the melting of tallow for instance, which is a trade not in itself unlawful, but if it be carried on to the annoyance of the neighbouring dwellings, it becomes unlawful with respect to them, and the inhabitants may maintain an action, and may charge the act of the defendant to be malicious; and no one ever objected to such a charge, although probably the defendant, in most cases, has no personal malice towards his neighbours, but acts only with a view to his own profit and gain. The publication in question impeaches the plaintiff's character: a publication impeaching private character is actionable, unless the occasion of publishing makes the publication excusable; and where the publication is a violation of the criminal jurisprudence of the country, and there is nothing to call for it, the publication is not excusable. These observations upon the plea are an answer also to the objections that were taken to the declaration, for if the facts stated in the plea do not furnish a defence, the introductory averments, even in those counts that contain such, do not shew that the action is not maintainable. The judgment of the Court, therefore, will be for the plaintiff upon the demurrer to all the pleas I have named, except the sixth and eighth, upon which the defendants are entitled to judgment. The judgment was ordered to be entered accordingly. END OF MICHAELMAS TERM. INDEX TO THE CASES ARGUED AND DETERMINED IN MICHAELMAS TERM, IN THE FIFTH YEAR OF GEORGE IV. 1824. VOL. V. PART I. BAGOT, Lord v. Williams (Judgment in an inferior Court, when an answer to an action in this, for the same cause) Barford v. Stuckey (Annuity) Page 87 - 118 126 Bloxsome v. Williams (Contract made on a Sunday, when void) 82 73 6 49 68 Doe v. Lynes (Feoffment, when a term for years is destroyed by) 160 Guthrie v. Fisk (Norwich Union Society, whether Secretary of, Hereford, Dean of, v. Macknamara (Pleading in an action for a false return) Holmes v. Love (Execution of Deeds) - Lewis v. Lee (Effect of divorce à mensâ et thoro as it affects the wife's liability) Lyttleton v. Cross (Plea puis darrein continuance-Executor- Morris v. Robinson (Abandonment-Sale of cargo, by master of ship, when binding) - Parker v. Ramsbottom (Usury-Bankrupt) - Petrie v. Bury (Pleading-Covenant) - Quieroz v. Trueman (Factor-Law of pledge) Page 56 98 165 62 Walmsley v. Abbott (Proof when sufficient, of an apothecary's Wells v. Iggulden (Overseers-55 Geo. S. c. 187., Pleading on - White v. Wright (A bargain for funded stock, when void for 13 110 Withers v. Bircham (Covenantees who have a several interest N. B. The remainder of the cases decided in Michaelmas Term |