It is, however, true that Bayley J., in that case, appears to rest his judgment, not merely on the fact of the comment, but also on the illegality of the publication of the evidence. Duncan v. Thwaites (a) may also be cited as inconsistent with Curry v. Walter (b). There a plea was held bad on demurrer which averred that the alleged libel contained only a true, fair and just report and account of proceedings which had taken place before a magistrate at Bow Street. The proceedings before the magistrate, in that case, terminated in the party charged being held to bail and the witnesses bound over to prosecute. Here the party was finally discharged. The publication, from time to time, of imperfect proceedings stands of course on a different footing; that was the case in Rex v. Clement (c). So does the publication of what takes place before a magistrate, not in the course of regular judicial investigation, but upon some party applying to the magistrate for advice: what there takes place is coram non judice. In the late case of Davison v. Duncan (d) the general principle is thus set forth by Lord Campbell: "A fair account of what takes place in a Court of justice is privileged. The reason is, that the balance of public benefit from the publicity is great. It is of great consequence that the public should know what takes place in Court; and the proceedings are under the controul of the Judges. The inconvenience therefore arising from the chance of the injury to private character is infinitesimally small as compared to the convenience of publicity." A distinction has sometimes been suggested (a) 3 B. & C. 556. (b) 1 B. & P. 525. (c) 4 B. & Ald. 218. See In the matter of W. I. Clement, 11 Price, 68. (d) 7 E. & B. 229. 231. 1858. LEWIS V. LEVY. 1858. LEWIS V. LEVY. between proceedings in a Superior Court and those before a magistrate, on the ground that the latter may, if he thinks fit, lawfully conduct the proceedings in private (a). But that, at any rate, appears to be inapplicable where the proceedings are in fact public, as in the present case. [Lord Campbell C. J. The Superior Courts of common law have also the power of excluding the general public in certain cases: and it is occasionally exercised by Courts of equity.] If there be no distinction arising from the nature of the Courts, there can be none arising from the nature of the proceeding the proceeding here was final, as in Curry v. Walter (b), which has not been overruled; and in that case, as here, the proceedings were ex parte. It may be urged that here, in the course of the inquiry, something arose injurious to the character of the party. That, however, is no more than must often inevitably occur in legal proceedings. It is true that there is here an innuendo, suggesting that the defendant meant to impute wilful perjury to the plaintiff. [Lord Campbell C. J. You may consider that as negatived by the verdict.] Petersdorff Serjt., H. Mills and Laxton, contrà. First, the rule may be made absolute on grounds not requiring the decision of the general question. The heading of the article, "Wilful and corrupt perjury," gives the character of libel to the publication. [Lord Campbell C. J. That may be no more than a statement of the nature of the charge. If you can shew that the publication is necessarily, by law, a libel, you succeed: but, if you shew only that it may be a libel, the verdict shews that it is not.] In Lewis v. Clement (c) the de (a) See the judgment in Duncan v. Thwaites, 3 B. & C. 583. claration set forth an alleged libel, commencing, "Insolvent Debtors Court-Shameful conduct of an attorney," and then professing to give an account of a proceeding in that Court. The plea stated that the Court was a public Court of the King, and that the alleged libel contained a faithful and true account of the several proceedings there had. This plea was held bad on motion for judgment non obstante veredicto, on the ground that the defendant, by the prefatory words, had taken upon himself so to characterize the conduct of the plaintiff. [Erle J. Would you object to a heading "charge of wilful and corrupt perjury"?] The present heading asserts a well founded charge. Next, the publication in the first count is indefensible upon any view it contains merely an account of a preliminary investigation, concluding with an adjournment. In the second count, the proceedings are described as ending in a remand on bail; and it is stated, as the opinion of the publisher, that the evidence entirely negatived the plaintiff's story. In the third, it is stated that the summons was dismissed, there not being sufficient evidence to secure a conviction: the evidence not being set out, but only the publisher's view of the result. Eyre C. J., on the trial of Curry v. Walter (a), said "that he would hold the defendant to very strict proof, that the report, as published, contained precisely the substance of that delivered in Court." And in Lewis v. Walter (b) Abbott C. J. said: "If a party is to be allowed to publish what passes in a Court of justice, he must publish the whole case, and not merely state the conclusion which he himself draws from the evidence." As to the general 1858. LEWIS v. LEVY. 1858. LEWIS V. LEVY. question: the rule allowing the publication of what passes in a Court of justice does not apply to the case of a proceeding before magistrates. [Lord Campbell C. J. There may be a distinction between preliminary and final proceedings: but I do not understand how there can be one between different tribunals.] In the Superior Courts it is supposed that the public is present: and this is the foundation of the rule. At any rate the principle of disallowing ex parte proceedings will be found universally laid down; 1 Starkie's Treatise on the Law of Slander and Libel &c. 265 (2d ed.); Holt's Law of Libel, 161; Cooke's Treatise on the Law of Defamation, 48; Borthwick's Treatise on the Law of Libel and Slander, as applied in Scotland, 209; Roscoe's Evidence at Nisi Priùs, 543 (9th ed.). But, further, the privilege does not extend to the publication of proceedings of which the object is merely to determine whether or not a party is to be charged. That distinction was pointed out in Cox v. Coleridge (a), where it was decided that a party charged on a preliminary investigation before a magistrate was not entitled, as of right, to use the assistance of a professional advocate; and Rex v. Borron (b) is to the same effect. But that right is given, in cases of summary conviction, by stat. 6 & 7 W. 4. c. 114. s. 2. [Lord Campbell C. J. I hold that enactment to be merely declaratory of the common law.] That seems to follow from Daubney v. Cooper (c). The same distinction is pointed out in Burn's Justice, vol. 1. p. 979 (29th ed.), Conviction, III.; ib. vol. 3. p. 1012, Justices of the Peace, VII. 4. [Lord Campbell C. J. It is hardly necessary to advert to a distinction so obvious.] Again, as to ex parte proceedings, in Hoare v. Silverlock (d), where it was holden to be a good defence that the alleged libel consisted of a 1858. LEWIS V. LEVY. |