Court Of King's Bench, We...
Dlr. CHITTY rnoved to make arule absolute, obtained on Wed. nesday last, reseeeeing a lady imprisoned in Ipswich gaol, under a sctentc~c(of the cclesiastical Court. Mir. SCARLXTT rose, and said-" I amn to showv cause against tlis rule, or rather to move that it may be enlarged till next ternn It is moved on affidavits, which the lady's husband is most anxious to answer, but which it was impossible for hutl to answer by this day. The case has been published in all the newspapers with the namne of the lady's husband, andl witb a stateument calculated to ex- cite strong feelings against them. It is there stated, thlt Ait. Chitty moved for a lsabeascoipus; but thc rule, as drawn up, is for changing the custody, rind is founded on long affidavits of circtm. stasces wvhich, on 3 motion For a ha3eas corps, the Court cannot esasider." Mlr. Justice BAYLEY.-The application was made to me when sitting alone. If I recollect right, I told Allr Chitty that the matter which lie sited was more fit for the consideration of the Ecclesiastical Court than ours; and I gra'nted the rule for a iabeas corpus simply on the alleged detect in the signiflcavl, olr. CsrIT'rY.-Certainly, my Iord; arid the rale prays for a 7habeas corpux. it Is in the saine form with that in "The King v. Mayhew,l which is reporte.i, and therefore I thought myself jutstled in taling it in that form. The afldavitistuatetial-; be- ,cause the sin yauit commaznds the ladyto go home to her bis. band arid the affidavit sllows that shie could fiud no hionse where he coulb receive her. Mfr. SCARLETT.-There was a previou3 monition, stating the place, which she thought fit to disobey, and then the signflcavit issued. Your lordshlps have no power to change the custody, or finally dispose of the person, as the rule prays. The LOaD CHIEEF JUSTICE-lt is very Improper; such a rule ought never to have been drawn up; we ranaot enter into the fnerits of the decision in the Spiritual Court, but if the party be committed under a defective warrant, we may relieveher. Mr. SCARLETT. And yet all tbese things are to bestated in thc newvspapers, vwhich are resli' irrelevant, to gratity those who like to read ex4Car(e applications oS thig nature. ir. CS,tTTY..-.i amrinot accountable for the newspapers - no nc COUlit haa er been sen,t to them; and I stated nothing with a view to thenm. The LoarD CesrE} JusTzcE._lt is really grievous tlhat the time of the Court shoujd be taken up with matters which are not for their decision. jlMr. CArTT Y.-...y Lord, I certainly looked over the affidavits, andthejy`ppeared to me proper to be presented to the Court. I thought it right to state that this lady had been three years and a lalt in prison, because the circumsEance waa calculated rather to in- crease her claim to a speedy reuiedy. Tht af5davit ot the lady was in her own writing; engrossed by herself; thougis it is insinuated she is a lunatic. Air. SCARLRT_T.-The Chancellor, when be heard of this pro- eeed .4Lpas asked wheth4v your Lordshipy are avaretcat there -as ~eciu before himi respecting this lady's stae of mind, whi ye nu r liordships believe that ,tie ;~ has ssdof VWdyu fiaiyhsan income of 4001. or 5'001. a year, which she has re-. su5ea rw ,r - i ,roPQs3d that the raleshotild be enlarged to show cause at Ta x , r her-t i'uld be most fitly heard. MUr. SCASr.ETT, afherrepeais-4's expresisorn of anxiet toraeet the statements In t er ffrdavis.s ,' that the rule should be enlarged for a week, with an anderatanding tha. Zifecesary, the husband should have a longer time. This was finally agre-d to, n a further understanding that thie 713le should be drawn up 'only op reading the siprVfiavit, and streh parts ofthe affidavitsas mi,ght b relative to the point slisingupon!t. (%o- %irefeel it rigbtio State, that in thle reisort of the motion, wbhi appeared in out paper of Thursday, we v d not mention the namep ilie husbtnd, which was notstated inithe rirst instance biy Airt. Cilitty, but we rather think slipped cut inalhjertently in the VcDursc of the discussion. Ve truly st4tid thatsherule .was granted on the defect inithuestgimuAr's,it on ';antidtherefore ir carlIett is not.justified in his r;eujiak as appiledI t6.'e the nrewspaperas. ,Our report is, In all respects, au accuratee ibstiact.pf what passed in conyrt, with the omission of, the name5 which, 8a then learned tomi sel obviously did not 3nteid-to state, w'd did notthink it right to jVe. In general, ^srer ef?dusel . l their di3sc?retion, choets state nhames Jim ope'n jourt, we feel jueilid'd 'in r4portirix what, ill, mien h~e- Zightto'hear; but wlhercananae alip0out by mere a4ildent against the intention of- the speaker,'vre think it neeLesso extend an acci. dental inijury.] 1 _ . JT5K xXiAt'G t. JjSlAtH YLb thigb itwll bereoellected, was am indictienta -natth deleisd. ant^}Meein acommon gamIng-hlouse, t a.icthereVt apl o4f oalrrfola ecui?t. lm e'pzos,ecotor demnurred tQ thse plea n as pleas cdentin law; and, spon argumen3nt if iw&aeoldeh'bad. Tlftnes4 iathen haroce *ether tle jtdSgMnent<oughit to,6e-fiisl7 tflasttide-a ndnen hse'convicted of the offence, or merely that-he7answear ever to thle rmatwteot the cbsrargc,.' ,!hmlsueation rss Asgue4 on a foimet day, anul tbi Court took.tfinefo comisider bfht' 3rdpngat. 'l!tIaroiesD GH:aF Jusyjcz3oawdelfrered thud ji eidgi toth Csrk" t. thhis:case, tbe pstr4eof the demurrer was -merely that the lt~' ebsould answer;fe b itt Jstit'Was.tlstdIity,aflieqCort, hiomth. standing the prayer, to give-jmlgnment accrdting to-law. 'This Wa" decided lrii L teid&lfsi 4-FEait, 483; -anff "the Khi v.Sh4kespeare," 10 Eat,t Bo, oud, cdou ltot bql doabted. 'In ciil cales, 'there' was a vzell..rccogtnized d istrtlois. between pleas] In abatement and olIeas 'in bar. On de I rIe its the first, :the judgment wfas that the party alhould aiuisrweer over ; but 'on the latter, it was. final. In civil cacsc, also, when issu6 was joined even on a plea In abatiment, 'and that plea was found against the deflendaiit,, jiudgrnent 'also was linal, and thejury'who tried the issue must assess the damnages in the cause. On indictmenits for felony the -rule was unquestionably otherwise. On thtese, it wis hdl1den tfirt not only after demurrer, but after ver- diet on.a'plea in.bar, -the judgment was merely that ehe defendant should answer to the charge; aud thie reason given by Lord Ilile andl all othersfor this distinction wa.% that it was made in favour o life. A plea of autrefoir acquiit w4s not a plea in abatement, bt a plea in bar; and therefore the question was, ,whether It waa to be assimilated to cases ot felonvt or to civil actions. Now', its felonies, there was no distinction betwieen pleasi whichl confessed. aind those which denied the maLtter of thte charge; in bolth cases, the Prisoner might answer over ; and in both, the reason given was "1In favour of iife."Atcommton law, there wasperhaps uofelcmy,e:xceptpettYlarcciiy, for'w~hlcb judgment of deathrnii,t not be given ;. here wvas no case of misdemeanor in which such judgment could be given; and theire- fore the reason of the zule, always given as applicable to the former. would niot apply to the latter. As, thierefore, the reason of the ruile did not extendl to Ulisdemeaniors ; as the opinion of Lord Raymond was, that the rule did not extend to them; eLnd as the case of the Duke of Devorisltire, which alone could he cited for the dlefendant, waitnotproerl th cae o a leain ar,the Court thouight that-the ruleappicale o flones id ot ncldeiisdemeanors, and conlie. Judgent hat he dibadnt b covicted,of the premises in the THE KING V. GE AGE 5IAfnlotiSO, EsQ. This was a rule obtained by Dir. WILsLTAIASs, calling, on George Harrison, Esq., to show cause whiy an information, in thte nature of~ a qao ars'rants, should tdot lie filed ;%gainit him as illegally exer- cising the functions of Mayor of Chester. The objection to ir,lr IHarrison was, that he was elected when the majority of the.lder. mnen were net present ; and the question was, whether, lunder the terms of the charter, the electioln shouldi be by a majority of existing aldermen, or a majority of such aldermien ais happened te be present on the occasion. Mr. SCARLETT n1ow shoWed cause, and contended that the latter construiction was right. he CoujeT, however, tbuhMteh lte point too nice to be deter, mined on moton, and made the rule absolute, that it might be s.'.bjected to furthier inquiry. LEGALITY OJF POLICE RBPiOitTS.-DIuNCAN V. TiSWAITEt. The LoatpCHrES'JUSTICE read the jdgm'entof the Courtton this case, fiei prefacri the judgmenit by observing that the case had been argplea before the Judges at the sittings in October; and that the Judgmentimust be considlered as pyoceeding.fromn him- self and his brothers Bayley and Molroyd, as his br6ther Little. dale had abstained fram taking apart in the deliberation, because he had been concerned when at the bar for One of the parties in the cau e.teheu proceeded to state the pleadingswhinchweten-brought under the consideration of the C-ourt on tdenmurrer. The declaration conitairied a pleat number of counts, setting out two alleged libels as appearing in the Mornjing HeraldI of the 12th and 16th of July, but divisible into two classes-one class seating, by way of lisduce- ment, certain proceedings before M1r. Halls, a policee.magistrate, aod the other class merely statiag the libels, and contaifling no mention of suchi proceedlings. In giving judgment, however, it would be necessary only to advert particuarly to the first conSt, which applied to thie first libel; and to the thirteenth couint, whichi set forth the secnd paragraphi. Thie first count, after the usual inducements of good character, and of innocence of the par- ticular eliarge, atated that on the I1thi of July, the plainitiff was brough before r Halls, a pelice.mnagistrate, on a charge of lade, cently assauilting Anni Chandler; that several witnesses were exa- mined, of whom Ann Chandler was one ; that the case was adjoutrn- ed to at further hearing; and that, before any bill of indictment was pref'erred, or any trial had, and wrhile the charge remiained wholly undecided, the defendant, Intending to pervert the course of justice, and to injure and prejudice the plaintiff, maliciousjly gublished the first of the alleged iibels. That paragiraph stated sat the plain- tiff was, the day bcfore,examined on a charge of indecently assault, ing a female child. that the evidence again4t him contained disgusting indecencies which could not be dletailed; but that the dc. tendan.t denied thte chairge, and there were some trifling inconsisten- cies in the testimony of the children. The thirteeiith count stated an adjourned examiination, when the plainitiff was held to bail; and then set forth a second artidle, whichi consisted of a Statement that th-e plaintiff had been againt exarnined-that no fuirther evidence was atdduced, and that lie was, in thec result, held to hail to answer thie cae.Tedefendant pleaded the general issue; several pleas a,.1iein ta the plaintiff did commnit the assault alludted to, on which isusweretjoined ; andt also several othecr special plea.v, to whic teplain tif demurred, anid thec sufficiency of which was the queto before the Couirt. The third pica very s-hortly stated- "that the several niatter., and thi ngs c-ontained in the said alleged libels were and arc true." This plea was clearlybad in law ; it was uncertasn whether it meant that the proceedings at the police-office were truly, reported, or that the charge whichi was the subject of thes proceeding.,s wvas well tbunldesi: if it meant the last, It was in- bufficient according to several decishion-, for not specifvinlg timie and place ; if the first, it came withini thie objection to th'e fourth plea. The fourth ple:a, appliecd to thec whole declaration, alleged in general terms that the supposed libels were no other thatn true, fair, and correct reports of proceedlings whiclh tookt place in opfen court, before a miagistrate. Now, as thlere weremanycounts of the declaration ahich did not set forth aniy proceedlings, this plea, as applicable to them, ought at least to lhave specifiecd thec proceedings to wnich it referred:- as to those counts, therefore, it was badl anid being bad in part, was, according to the unifocrm rule of law, bad in the whole. The fifth plea, apphicable only to) the first article, set forth tkat a charge was made against the plaintiff ; that it was heard in open Court; and then, setting forthi at lengthf the depositions of Anne Chandler, ,Ae was a ?arr, just, and impartial account of thec preceedings. Nowv itwas manifest oen the face of this ples, that the articile was not a fair, just, and impartial accunt ot thec proceedings ; because it made no mention of the deptosition of the surgeon, who hiad distinctly ttated that the, prinicipal witnless, On being askedl by himi, denied the main fact on whlich thle accusation rested ;-thst idlea, therefore, was bad. The sixth plea applied only to the second article, and aitnpl,y alleged that the pl-aitiff was examiined again thiat ne furthrr evidence was adduced, but that lie was held to bail and as thais paragraph colatained nio remark on the evidlenee, andI nothing more than this statement off proceedlings2 thne Court hield this Plea good, and that judgmient upon it must be giiven for thie defend. ant. The iseventh plea reasnibled the fifthi, e;cecpt that it omlttWd ose allegationl in the first article, anti was bad for the samne canse. The eighith plea, like the sixthi, appliedl only to the second articlr and being the same in substance also, was valid. JBut now, said the Liord Chief Justice, I will advert to the secondI plea, on whichi in aurguent the greatest stress; was properly laid. rhat p leastates Ethtthe Plaintiflrdidl uindergo a long exanmination at the police-office, uPOn a char go of inidecently assaulting a Female chil namied Ann Chan)dler; that thte evidence dlid disclose a tissue of tdisgusting indecenjcies ; that the plaintiff denied the c1harge; that he was bound over to attend on a future day ; and that on that day the further proceedings8 took place, whic!h are set forth in th aco~ article. Trhis p lea then alleges that thie defendlant published the article as and for, what in. facet they %veere, ,tust, true, anid correct IePorts of proceedings which tookt place openly in the police-"fllce, as public news, and not froni any mialiciouis oruinworthy miotive what. soever. Thisplea is fotunded on a suppoasiton that it is lawful for thje conductor of a newspaper to pubslishi in his journala report ofexamiina- tionsaeta police.office taken witha view to further inquiry,,and where the charge is not finally decided; but the party accused is comimitted or held to bail-with these restrictions only, thlat tile proceedings should be open, and] thtat ttie report is accurate, just, and? fair anid hlence it is inferred, that however such report may affect an indivi- dual, lie can sustain no ac-tion against the publisher. The case on- this point'was arglued before us wvith greaAt learning : and( all the au-_ thorities which couhti be broughlt tto bear tupon it were presenited to onr considerattioni. It wouldl be a wvaste Of the tiune of the Court to enter into a minute examination of those authotities ; it is sufficient to sar', that there is not one w4hich will sulpport the Position on whiceh thist Plea is hbundett. The e-ase whiichi ap- proac'hts it miost nearly is that of " Currie v. Walter," the decisian of whtich at Nisi Prier is reported in .5 Espinasse'.t Reports anEf the fin-al dleternilnation of whlichl is to be found in I Bosanquet anAi Puller, 533. That cane iA undoabtedly of high authority in itself, and de- Irives addit' onal weight fromn the sanction otf ftlrJustice ILawrence; 'but it has been doulbted by subsequent Judges. TChere are, hlowever. distinctions beten tha case anti the present to whichi it is prn& per to.alludhe. The atir,.Icl complained of in thiat case wa15 a yeportof- a proceeding in this Court, the doors -of' whicjh w7ee always open, and oughitalways to be open, to as large at portion of th public as the Place Will acoti nunotlte. B3ut a poice-office is tiet nie. cessarily thus open:- the m -satrate maY sthut' it whlenever he thinks proper. Again, in "5turllriae v. WValter," the proceeding, though ex-parne, had terniiinated : it was a mnotion for a crimninal ini. formation,' which the Coutrt refusied to grant ; and therefore the case was not. put into saty train of more solemsn'inquiry. Bst in this in- stance the party was heldl to bail, in ordier 56 a trial,'zand therefore ihe publicationi took niice while the ptoceedings we-re still )"ending. In the "1King v. Lee," 't was holdten, thait the publication of pre. linuinary examinations ta-ken witti a view to t:Aia was a criminral act; andi miany learned Judges hiave teen occasion to lament and to reprobate such puablications, It is in -the rccollecthitn iof 'somne of us that They wiere once tisf-requelit; thiey have greatly increased oh late yeaTs ; huat they arc not, thierefore, 'the less unlawfuli. I. have Phinted out the distinctions between this cae and that of " Currie v. Walter," but it muist not be taken fagr granted that we hold the publication of ex-parte proceedings, even ti ,thi, Court, asUowable by law'. That case is not- now before uts; it isanos, therefore, necessary to decide it;- but we-musit not be supposed-to in. timnate that8suchpUblcations are legal. it wascneddb r -Lawes in arguraent, that, even supposing an indictmentwud licMr for the obsn'uction of puiblic justice, still the party himself alluded to In the report could not sustain an artion for disnages ; 'Indi tltp thatL the absence of 17140iosss Motive, which was admittiedl by the, demusrrer, woi.ld exonerate -thea publh8ishe. With- - respwt to -the first vo-sltion, -1 tafse it to be clear i 4t wilen IL6 tsnlaw III act is done by whtich an individual is particularly aggrieved, he meav sus- tain an action; and who can say thata man Is not aggnreca by a nuh1[cption which tends to injure his character, and to excite a pre- judice agB --t bil s? On the absenee of malice, allegeil in the' pla, it must be observ- that if the pleasbe bad in la-w, the statements which it contains aze not at^lttcd by the demurrer. But what is the rue4ning of malce ? Evcry act nni;:. a Itself anid itijurious to others is in law regarded qs ul7Wlilo1s, altoilhotzl tre !nay be no personal malice to the individuals affbeted. ThCre ,rt .om9 acts not in tbemneelves unlawful, but whieh beeome so in their consequences to others; and which -are niot done withb pUt.r pose to iniure, which nevertheless aye regarded as done aol aairo, ana furnish grocund for indictnment or action. Take the coanmop case of a soap mtnufactory, lea fuitiistself, anti ratCey. conducted with any desire te 'nOoy others;; -et' when it becomes a nuisance to the neighbours, tihey -have aright of.action, ando'the terw 1 umaliciously" iS emnploveda to charecterizethic offince. Thus 'every publi6ation impebching tbhe cligraetct i'f -another,- except un1- der circumstances svhich create a piivilcge, is 'thde inubject of an ac- tiOn. Jn stating tthe'objectiofsi so the pleats, X'-have'answcrcrirhoxe ruade tothie delearation as fo th co'qt- c illblch ikbftateled on the first libel. Judgmenit, therefbre m'ni t 'he 4ii'vC ' for tfib defendant, onl the'sixtb nd eighith pIe'..fi wlii;cbap~lyi the seconitl article, and for tchhe lilsn.titff onp the.secoatlviitil fourth, Jlfih, nd sevent,h pleas, rtslr,sy s applied fi'rd . ifr le'to k oshin'kcauSe why Richard 'Reed shonld not susrrender,: maid "give bpd beforew'agpde in. fchitsuheo if'eonsequsnen -of a verdicet of enanilaughiter- being fbouuclgitinst him,: flot o oh is vgkiled a child, ~~ T learned ecsuifisel wa~~ 'Proceeding. to, staite 'thait the thi, that the Urnrhdpe itt~iahih~ Reid to deprit, while the j*jrr~ te*o ta1thl TeL CarII rs JESTCE, dirwth! ule 0 Wuu4 ~awitlt out any furh~r-statcinhfit of faebt. IMI* W)LXk3XSir said that lie. app ace tehalf of Mtv. ~ax~n, aggnst whesn iuwiitof habcaw COrpiw bad beefr i9u44~to Px4uce tivi chiildren. TherLoium CirzEr JUSTIcr, Inquired witethei this iubject Iisid not better be heard in chambers. A1t. SCAAVETT Waddthat it WOUld be better t bav'e 'the dlscus. Pion before aJiudge in chambers; ot irwfrehbis learnedl friend would balveto relatelinthe publicbearng ajtale of domestic bickerlng. Mr. WILLIAMS Said, that in consequence of the hint froin ti,e Couitt, he vaheud'ifkaiin foron following up hispurpose of stating in public the cme of his client. iLIr SC~L~T aplid frawltoMandamewrjigainst theMayor and orpratono-J3oton tosho case why they abould not il. bet r. Oeak,one fthtircoinncounilvneK, t6 Inspect their ce.. cord, fo th puraseof acerainig te vralidity of certain marklet. The our sa unil s~eno'enck itbeing the last day of term. COURT OF KING'S BENCH. WEST3rl).qqRin' nYv. 90.