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accounts of the different officers appointed by such 1822. restry, as no person could be present at any such meet

THE ATTORing until he had paid the rates that might be due from Ner-General him. Thal the fourteen feoffees might, in all probability, Wilkinson. be entitled to six votes each according to the statute, as they must be taken to be wealthy men ; or they might bave one vote each as a feoffee, and six others as a vestryman. That would tend to destroy the object and foundation of the deed, in which the founder has expressed, that the schoolmasters were to be elected and removed with the consent of the feoffees and vestrymen, or the more part of them. This, it seems, must be taken to mean a majority of persons assembled at the meeting; and it does not appear to have been the intention of the legislature in passing the statute 58 Geo. 3, to interferę with, or overturn a deed of this description.

Cur. Adv. Vult.

The following certificate was afterwards sent to the Vice-Chancellor :- This case has been argued before us by counsel. We have considered it, and are of opinion, that in the execution of the power of removal given by the schedule annexed to the indenture of feoffinent, dated the 1st September, 1621, to the feoffees of the charity estates and vestrymen of the parish of Enfield, the votes are to be taken per capita, and not according to the provisions of the act of parliament of the 58th year of the reign of King George the Third, intituled “ An act-for the regulation of parish vestries,”

R. DALLAS.
J. A. PARK.
J. BURROUGH.
J. RICHARDSON.

1822.

IN THE EXCHEQUER CHAMBER.

CLEMENT v. Lewis, Gent. One, &c. (in Error).

Where, in a de- This was an action brought by the plaintiff below (delibel published fendant in error) to recover damages from the defendant in a newspaper; below (plaintiff in error), for a libel, published by the on the plaintif latter in the Observer newspaper, concerning the former, in his profession as an at

in his profession of an attorney, and which began with torney; the libel was head

the words “Shameful conduct of an attorney," and then ed with the

proceeded to give an account of proceedings in the Inwords “Shameful conduct of solvent Debtors' Court, which contained matter injurious an attorney,"

to his professional character. The declaration contained fessed to give

and then pro

certain pro

two counts, in the first of which the whole of the libel an account of

was set out, and in the second, parts only. The defendceedings in the Insolvent ant below pleaded ten pleas—first, not guilty, to the Debtors' Court injurious to the whole declaration, on which issue was joined ; secondly, plaintiffs pro- four special pleas of justification to the first count, alleg. racter ; and the ing that the supposed libel contained a faithful and true pleaded the ge- account of the several proceedings therein stated, which neral issue, and nine special pleas of justification, stating that the alleged libel contained a faithful and truc account of the proceedings in that Court : such pleas were held fill, as the words “ Shameful conduct of an attorney,” formed no part of the proceedings in the Insolvent Court. And the jury at the trial having found a verdict for the plaintiff on the first issue as to the plea of not guilty, and on the last as far as related to the second and sixth pleas, without assessing any damages, and for the defendant on that issue, as far as related to the residue of those pleas, and the Court of King's Bench gave judgment for the plaintiff, notwithstanding the verdict found for the defendant, and awarded a writ of inquiry to assess the plaintiff's damages, on which judgment was afterwards entered ap for the damages found on the inquisition : Oc error being afterwards brought in the Excheques Chamber, that Court held, that the verdict found for the plaintiff on the first and last issues, so far as the latter related to the second and sixth pleas, was void in law, as the jury by whom the issues were tried, ought to have assessed the plaintiff's damages, by reason of the grievances contained in the declaration ; and they ordered the verdict and inquisition to be an. nulled and vacated, and the final judgment given by the court of King's Bench to be reversed, and that the record should be remitted to that Court, who were directed to award a venire de novo to try the first issue, and the last, so far as related to the second and sixth pleas, on which the verdict had been found for the plaintiff.

1822.

CLEMENT

v. LEWIS.

were had in the Insolvent Debtors' Court; and, lastly, five similar pleas to the different parts of the libel set out in the second count of the declaration. Replication to the nine. last pleas, that the defendant' below, of his own wrong, and without any of the causes by him in those pleas mentioned, committed the grievances as the plaintiff below had above thereof complained against him ; on which issue was joined.

At the trial, the jury found a verdict for the plaintiff below on the plea of not guilty; and as to the last issue, so far as the savie related to the matters contained in the second and sixth pleas, that the defendant below, of his own wrong, and without the causes by him in those pleas mentioned; committed the grievances in manner and form as the plaintiff below had complained against him ; and so far as the last issue related to the matters contained in the third, fourth, fifth, seventh, eighth, and last pleas, that the defendant below did not of his own wrong, but did for the causes in those pleas mentioned, commit the several grievances in that behalf, in manner and form as therein alleged. On an application to the Court of King's Bench by the plaintiff below, that he might have judgment notwithstanding the verdict found on the seven pleas of the defendant below, on the ground that such pleas were bad in point of law, that Court were of opinion that they were so, inasmuch as the words “ Shameful conduct of an attorney," which prefaced the libel, formed no part of the proceedings in the Insolvent Debtors' Court, and consequently that the plaintiff below was entitled to judgment (a); and they awarded a writ of inquiry to assess the damages he had sustained, which were accordingly assessed at 500l., and 40s. costs, whereupon final judgment was afterwards entered up for these sums, as well as 6561. for costs of in

(a) See 3 Barn. & Ald. 702.

1822

CLEMENT

LEWIS

crcase, ainounting in the whole to 11581. The defendant below brought a writ of error in this Court, and assigned for errors, that the declaration was not sufficient in law for the plaintiff below to sustain his action against the defendant below; that notwithstanding the jurors of the first mentioned jury bad found on the last issue, so far as the same related to the matters in the third, fourth, fiftb, seventh, eighth, and last pleas, that the defendant below did not of his own wrong, but for the causes in those pleas mentioned, commit the supposed grievances in the declaration alleged, in manner as the defendant below had in those pleas in that behalf alleged; yet that judginent was given for the plaintiff below against the defendant below, whereas the judgment ought to have been given for the defendant below against the plaintiff below. Joinder in error.

[graphic]

The cause came on for argument in the last Term, when

Mr. Platt, for the plaintiff in error, submitted that the first question was, whether the publication of a true and faithful account of proceedings in a public court of justice were actionable or not? Secondly, whether the context and form of this particular libel took it out of the course of a privileged publication. Thirdly, whether, even if it were not a privileged publication, the pleas of the defendant below were not a sufficient answer to the action of the plaintiff below! And fourthly, whether as the jury at the trial had not assessed damages on either of the issues found for the plaintiff below, the Court of King's Bench ought not to have awarded a venire de novo, and not a writ of inquiry to assess such damages ?

As to the first question, le contended that the statement was in strictness a publication of the truth; and that

1822.

CLEMENT

LEWIS.

in order to maintain an action of this description, it was necessary for the plaintiff below to shew that such statement was false, as well as malicious. There is a wide distinction between criminal and civil proceedings, in eases of this nature; as the proceedings by indictment or information are for the preservation of the publie peace, whilst by an action the party seeks to recover damages; and if the matter alleged be true, he cannot do so, as he has sustained no legal injury by the publication.

He was proceeding with this part of his argument, when

The Court requested him to confiae himself to the question, as to whether the pleas on which a verdict had been found for the defendant below, were sustainable or not.

The heading of the libel carries it no further, and works no injustice to the party complaining. The defendant below did not mean to impate any misconduct to the plaintiff below, beyond that which the substance of the libel would have conveyed, if the words in ques. tion bad not been inserted. Besides, the whole of the libel mast be taken together; and the finding of the jury has in effect thrown those words out of the account, and is sufficient to bar the action, for they bave found the statement to be a true and faithful report of the proceedings in the Insolvent Debtors' Court; and the comment or title was only used for the purpose of conducting the eye of the reader to the statement which followed it.

[The Court, however, were clearly of opinion, that the judgment of the Court below was right on this point, and consequently that it ought to be affirmed.]

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