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that he did not publish anything but what he admits iso«. and justifies." "3^7
Clarke. "This is the first time a libel was ever so Jom'm, divided as in the second plea; and we cannot take issue upon this plea; for how can we divide those parts of the plea and the libel, which he calls facts, from those which are not? If there are parts of the libel which may be justified, though others cannot, he ought himself to separate the bad from the good, specifically. Here it is only stated indefinitely,' as to such parts of the libel as purport to contain a statement of facts;' but he ought to have selected those parts which he means to justify; and, in actions for slander, you justify the words precisely as they are laid. To do otherwise would be to throw too great a burthen upon the plaintiff. The last plea only states, that two witnesses spoke one way, and Mr. Carr another, and the justification must now stand wholly upon that." He concluded " that the pleas were bad, first, upon the ground, that the matter attempted to be justified could not bejustified; and secondly, that the pleas were informal, in not sufficiently separating the matter attempted to bejustified, from that which was to be denied merely by the plea of not guilty."
Scarlett, contra. "The first plea is the general issue ; the second, a justification as to the whole, and the 3d and 4th, a justification as to parts; as to the second plea, two objections have been made, one of which is that the declaration charges the defendant with publishing a libel, intending to charge something upon hiin as to his being a clerk of the court of requests: now the defendant is only bound to admit something in his pleadings which he will justify, but he is not bound to put the same construction upon the Words which the plaintiff has put. The writer only means, that a person who held the office of judge of the court did certain facts which he there states. 1806. He admits only and justifies by these pleas the facts. cak% * Judicial Delinquency,' for instance, which is the versut title to the paper, contains no fact; and therefore J0""- cannot bejustifted. All that in pleading can be done is to state the facts, and to say that they are true; the jury is to draw the inference what the libel means to impute; and theplaintiff might have taken issue, if it is said that the defendant did not mean to give a fair account of the proceedings in the court of justice. The true question is, however, whether the facts stated in the libel are stated in the plea: no matter what the meaning of them is and justified i to publish accounts of proceedings in a court of justice cannot be a libel. In this court there was an information for a libel against one Wright,* who published a statement of proceedings in the House of Commons, and it was held no libel. Mr. Justice Lawrence, in that case, said, "it has been contended that the publication of the proceedings of courts of justice, when reflecting on the character of an individual, is a libel; to support which position, the case of Waterfield v. the Bishop of Chi' Chester had been cited. But on examining that case, it appears that the charge there was, that the ptaintiff'h&d not published a true account. Therefore, I do not think, that that case establishes ihe proposition to support which it was cited; and I am not aware of any authority that does support it. The proceedings of courts of justice are daily published, some of whicli highly reflect on individuals, but 1 do not know that any information was ever granted against ihe publishers of them. Many of these proceedings contain no point of law,, and are not published under the authority or the sanction of the courts, but they are printed for the information of the public. Not many years ago an action was brought
in the court of common pleas by Mr, Currie v. Walter, proprietor of ' the Times,' for publishing a libel in the paper of the ' Times,' which supposed libel consisting in merely stating a speech made by a counsel in this court on a motion for leave to file a criminal information against Mr. Currie, Lord C. J. Eyre, who tried the cause, ruled, that this wasnotalibel nor the subject of an action, it being a true account of what had passed in this court; and in this opinion the court of common pleas afterwards, on a motion for a new trial, all concurred, though some of the judges doubted, whether or not the defendant could avail himself of that defence on the general issue. Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public, that the proceedings of courts of justice should be universally known. The general advantage to the country in having those proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of the proceedings."
Lord Ellenborough, C.J. "That must be taken with some limitation. Many things are necessary to be stated in a court of justice, which might affect the feelings of families, and which it would be highly improper to permit to be stated to the public. 1 do nut mean to put strict restraints upon the publication of accounts of trials; but if it be done for the purpose of prejudicing an individual, it may yel be a libel. It is very difficult to draw the line between what is a fair publication and what is not." *
Scahlett. "In Astley v. Young * it is said if the
1806. matter is justified, the manner is immaterial; then these Carr facts may be easily collected from the mere observaverau tions, but it does not follow that the meaning of them J"""' is such as has been stated in the declaration. This does not charge the plaintiff" with perjury."
Lord Ellenborouch, C. J. "Do you mean to contend, that the justification does not admit the inuendoes?"
Scarlett. "If a man charge another to have asserted, that he had sworn falsely, meaning thereby that he had committed perjury, the defendant may shew that the plaintiff" swore falsely, but not admit that he stated him to have committed perjury."
Lord Ellenborotioii, C. J. "You must admit the sense, as stated in the inuendoes. You must either admit that sense, or must give another sense."
Le Blanc, J. (Currie v. Waller* being cited.) *' That was a paper without observations or any insinuation. You can only justify as to the facts; but, if the facts are found for you, will it acquit you of the libel? Will it acquit you of publishing proceedings in a court, with direct inference, and imputations ou the character of various persons i"
Lawrence, J. "Here, besides, you state the act which you charge to be a perjury ; and, if true, as you state it, there must be perjury. That therefore, is not like the case of charging a man with stealing a tree, which being affixed to the freehold and part of it, cannot be the subject of a felonious taking."
Scarlett, abandoning the distinction as to the difference between the meaning charged by the de
claralion, and that which he insisted was the meaning of the paper, endeavoured to defend the pleas upon the point of form, and to shew that the facts might be separated from the observations in the manner here done, and cited Dallison 33.
Lord Ellen Borough, C. J. "In order to avoid prolixity, you need not, in your plea, repeat the words; but may ascertain them by reference. Thus, for instance, you might have said, "as to all the matter contained between such a word and such a word, and as
to all the matter from the words—to the words ."
But even if they could be separated in this case by any industry, I mean the observations from the facts, how can they be so by this general mode of reference. It begius ' Liverpool quarter sessions,' and appears to be throughout, as if it was intended to be understood as a narrative of facts. But, as to saying that it contains no libellous matter, it is clearly impossible to contend for that position. Had it been a temperate account of facts, it might have begun by stating that a most interesting trial' had occurred. But is there in the words " Judicial Delinquence;" nothing of a libellous nature; and how is this to be separated? The libel li mixed with the narrative, so that we cHnnot separate it. We may think one part fact, and the judge at nisi prius may think another part to be intended for a statement of fact. But, there ought to be such precision, that it might be distinctly known to the court and jury, what is to be the proper province of both. If by reference it can be made clear, it may be so; as if you bad said, " perhaps, as to so much as purports to impute lo hiin the crime of perjury." But 1 would not be understood, that this is a decision which will justify the setting out of all the libel in the plea; for that would lead to a great length of pleading, which is quite unnecessary." (Upon Scarlett applying for leave
No. xxxv. N. s, aT f1