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afterwards impossible to support in proof. Would it be either safe or proper, that after a cause has been tried, a statement, which the evidence has not at all supported, should be published in a newspaper; and then merely because that statement had been made by a counsel, it should be held to be privileged? Ought such a publication to be considered a fair report of what had passed in court, although the evidence afterwards given might not only not support, but might even to some extent contradict it? Ought such a publication to be privileged? I conceive not; and I think that such will not be held to be the law of the land. On the face of this report, it is not a fair account of the trial. It begins by saying that it is a report of the statement of counsel, and it then goes on to say, that the defendant took a cottage in the neighbourhood of Lord De Clifford's preserves, where he kept up a regular poaching establishment. No man can believe that this is the language of any witnessit can only be the language of counsel in aggravation of the case he is called on to support on the part of his client. The account says fair sporting was out of the question, for the defendant was in the habit of turning out his dogs at night, when, as it appeared, they did much mischief to the neighbouring estates. In that part of the report it evidently changes its character, and goes into the evidence, for it was only in the evidence that this circumstance could have "appeared." The defendant has, besides, mixed up with the general allegations of the counsel for the then plaintiff, a statement of the consequences; for he goes on to say, that in consequence of these things, Lord De Clifford ordered all the dogs found on his manor to be taken to his kennel and kept there till claimed. So far this report is of a statement made on the part of the plaintiff at that trial. We come now to the report of the defence: and it would be thought, that if this pretended to be a fair report, the defence would be set out with at least the same degree of exactness and accuracy. This certainly would have been done in a fair account of the transaction. Instead of this, there is only a dry observation or two of counsel, and then comes the charge of the learned Judge; and in giving that, the defendant has singled out more particularly that which bears unfavourably on the conduct of the present plaintiff. I ask again, whether any one can say that this is a fair account of the proceeding? and that question I put to the jury, when I left it to them to say whether, on the face of this account, it was or was not fairly given? Without at all breaking in *upon the supposed principle or right possessed by the [*220 editors of newspapers of communicating to the public the proceedings in courts of justice, I did not think, nor did the jury believe, that the account in this case was fairly given, or even imported to be so. This disposes of the first ground of the motion. The second is as to the rejection of the evidence of publication in other newspapers. It appeared to me, that as there was no justification or excuse upon the record, I had gone to the full length in allowing The Observer, from which the libel had been copied, to be put in evidence. That evidence might weigh with the jury, as showing there was less of malice than if the defendant had been the original composer of this libel, and so far he had the benefit of it; but I think I was justified in declining to receive evidence of a similar publication having been made in other newspapers. As to the question of damages, that is one which at all times it is the peculiar province of a jury to determine; and it is only when the damages are excessive and exorbitant to all common understandings that the courts feel themselves called on to interfere. Evidence was given of the apology which the defendant offered to insert; and, probably, the jury might think that the nature of the apology was such as to add a degree of bitterness to the original libel. I see no reason, under all these circumstances, to object to the amount of the damages.

PARK, J. I am of the same opinion. It has been admitted that the statement complained of imports a libel on the plaintiff. It charges him with having kept a poaching establishment, in which fair sporting was out of the question, for that he used to turn out his dogs in the night, when they did much mischief on the neighbouring estates. But it has been contended that this was a report

of what passed in a court of *justice, and that such a report cannot be *221] treated as a libel. All the cases, however, decide, that in order to exempt the publisher of such a report from the consequences attached to publishing a libel, it must be a fair report of what passed. In Stile v. Nokes, 7 East, 492, where the defendant published a highly-coloured account of judicial proceedings, mixed with the party's own observations and conclusions upon what passed in Court, which contained an insinuation that the plaintiff had committed perjury, Lord Ellenborough held that such a publication could not be justified; and said, "The account of the proceedings in Court is so interwoven with the comments, that we cannot with certainty separate them throughout, although we can see plainly enough that certain parts are an overcharged account of the judicial proceedings. The Court cannot decompose this mass: but the party who requires the separation to be made for his own defence, ought to have taken upon himself the burden of doing it, in order that the Court might see with certainty what parts he meant to justify. I should have great difficulty in saying what parts purport to contain an account of the trial, and what parts are libellous. If they cannot be separated by the industry of the pleader, how can they be so by general reference? If they can be so separated, they ought to have been." In the present case, it is very likely that the counsel said all that has been repeated by the present defendant, and even that I might have adopted some of his expressions with regard to the conduct of the plaintiff; but not one of the witnesses said that he kept a poaching establishment, nor was there any proof that such was the case. But I cannot accede to the position, that a party is excused for publishing every proceeding in a court of justice, even though he *222] publish it fairly and with truth. In R. v. Creevy, 1 M. & S. 273, a member of parliament who published in a newspaper the report of a speech delivered by him in the House of Commons, was held responsible for libellous matter contained in it, although the publication was a correct report of the speech, and was made in consequence of an incorrect publication having appeared in that and other papers. In R. v. Mary Carlile, 3 B. & A. 167, the report of a trial which the defendant had published was true, but Abbott, C. J., said, "There can be no doubt in the mind of the Court, or of any person acquainted with the law of the country, that if, in the course of a trial, it becomes necessary, for the purposes of justice, that matters of a defamatory nature should be publicly read, it does not, therefore, follow, that it is competent to any person, under the pretence of publishing that trial, to re-utter that defamatory matter." And Bayley, J., said, "We are bound, for the purposes of justice, to hear evidence in the course of judicial proceedings, the publication of which, at any distant period of time, or at any time afterwards, may have the effect of an utter subversion of the morals and religion of the people. The first time I had occasion to consider the subject, was in the case of some trials for adultery. It very often happens, that, for the purposes of justice, our ears may be shocked with extremely offensive and indelicate evidence. But, though we are bound, in a court of justice, to hear it, other persons are not at liberty, afterwards, to circulate it, at the risk of those effects, which, in the minds of the young and unwary, such evidence may be calculated to produce."

The present, however, is manifestly not a fair report of what passed at the trial in question.

*223] I think, also, that there is no ground for granting a *rule on account of the evidence which the learned Chief Justice rejected. Whether evidence as to the plaintiff's general character ought to be admitted in an action for a libel, on the general issue, in mitigation of damages, has long been vexata questio. In Jones v. Stevens, 11 Price, 235, there is a luminous exposition of the whole law on the subject by Wood, B., and he strongly protests against the admission of such evidence. But what was rejected in the present cause was properly rejected, since, if admitted, it could not have operated as any extenuation of the defendant's conduct.

BURROUGH, J. This was a libel on the face of it, although professing to be

a report of what passed in a court of justice, for the defendant does not profess to state facts as deposed to by witnesses, but the mere opinion of the counsel who opened the cause.

As to the rejection of evidence of publications by others to the same effect, I have no idea that such a fact would have any weight at all. It is of no avail for the defendant to say that others have done wrong as well as himself. The evidence was properly rejected.

GASELEE, J. The only point on which I have entertained any doubt, is, Whether evidence ought to have been admitted that reports to the same effect were contained in other publications: but, beyond the report which was admitted, the defendant was not shown to have acted on any knowledge of such publications, and, therefore, I do not entertain sufficient doubt to desire any alteration in the judgment which has been pronounced by my Lord Chief Justice. Whether a defendant, in a libel cause, may be permitted under the general issue to give evidence of matters of excuse, in *mitigation of damages, or is bound to [*224 plead such matters, seems still to be vexata questio; but the defendant here has neither pleaded, nor offered to prove anything that could operate as an excuse. In Waithman v. Weaver and Others, 11 Price, 257, in note,-which was an action brought by the plaintiff against the defendants, who were the proprietors and printers of the John Bull newspaper, for a libel attributing to the plaintiff, amongst other things, the fact of having bought from a man of suspicious character two shawls, for a small sum of money, which he had himself sold to another person at a much higher price on the preceding day,—when the plaintiff's case was closed, and the defendant's counsel had addressed the jury, they proposed to call witnesses to prove that the libel in this respect was no more than a repetition of rumours which were prevalent at the time of the facts imputed to the plaintiff therein, in order to diminish the damages, in case the jury should find a verdict for the plaintiff on the general issue, by removing the impression of malicious invention in the account complained of, and quoted several authorities to show that they were entitled to give such evidence; but Abbott, C. J., objected to admit evidence of the existence of such injurious reports, said to be in circulation to the prejudice of the plaintiff.

Rule refused.

*HAYLLAR v. ELLIS.

Nov. 11.

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Where a plaintiff makes several claims against a defendant, and the defendant makes others against the plaintiff, if an arbitrator, to whom the cause is referred, finds that the plaintiff had no cause of action, his award is, in that respect at least, sufficiently certain

In this cause an arbitrator had to decide on certain specific claims which the plaintiff made against the defendant, and the defendant against the plaintiff. He made an award in favour of the defendant, and found generally that the plaintiff "had no cause of action."

Taddy, Serjt., moved to set aside the award, as not sufficiently certain. contended it could not be pleaded in bar if the plaintiff were again to sue the defendant on any of the distinct causes of action submitted to the consideration of the arbitrator, as it would not with certainty appear which of them had been decided on.

But

The Court held it sufficient, and

Taddy took nothing.

Tindal, C. J., was absent at Chambers.

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*MADDISON v. NUTTALL. Nov. 11.

An ancient statement concerning the payment of the tithes of a parish by a modus, signed by the rector for the time being, is evidence against a succeeding rector, as an admission by his predecessor, although found among the title-deeds of a land-owner in the parish, and not in the bishop's registry.

DEBT for tithes of hay, in the parish of West Monckton, Somerset. The defendant pleaded an ancient modus, or customary payment, whereof the memory of man runneth not to the contrary, of 2d. for every acre of meadow land lying in the higher side of the parish, where it was averred the defendant's land lay; and that it was meadow land. The plaintiff traversed the existence of the modus.

At the trial before Tindal, C. J., Bridgwater Summer assizes 1829, the defendant offered in evidence, among other matters in support of the modus, the following document, which was found among the title-deeds of an extensive landowner in the parish:

"A note of all such tenthes and tithes as have been usuallye and accustomablye paied within the parishe of West Monckton, and countie aforesaid, and manner of the payment thereof tyme out of minde, and noe other, nor otherwise than as followeth; videlicet,

Imprimis, at Ester, before takinge of the communion, the communicants ought to come to the churche, and there with the parson are to make their Ester boocke, and are to shew him what groundes they lett or sett.

Item, for a garden vsed to be paied 1d.

Item, for each communicant paied 1d.

Item, in the higher side of the saied parishe payde for every tithable acre of meadow ijd."

(There was a great variety of other items, some of which were alleged by the plaintiff's counsel to be rank moduses, and the document concluded as follows:-) "Item, the parson is to keepe a bull and a bore for the parishe, or muste allowe them what they paye to other men for his defaulte in either kinde in y behalfe.

*227]

"The abouesayde tenth's tythes and no other, and manner of paymente as abousayde and not otherwise, have bene eur vsuallye payde, as it appeares by a certayne role bearing date the 22 daye of August, in the yere of our Lord God 1619, keept in the parish chest, subscribed vnto by fower seuerall man who were procters and gatherers of the tithes and tenthes as abouesaid at seuerall tymes for certaine yeres together, besides diusse other of the most able and sufficient men of the same parishe.

"Ita est W. KINGELAKE.

"PHILIP MATHEW, als. procter,

(PHILIPUS FFRY RECT.)

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A terrier, signed by Philip Fry, but relating chiefly to the parsonage house and glebe, having been put in from the bishop's registry, in which terrier there was no mention of this modus for hay; it was objected that the document offered by the defendant, purported to be a terrier, and ought not to be received, because it did not come from the proper custody;-the bishop's registry, or the parish

But Philip Fry having been proved to have been rector of the parish from 1587 to 1642, and his handwriting having been also proved by a comparison with entries made by him in the parish books, and with his signature to *228] documents in the *bishop's registry, the Chief Justice received the

K

above document in evidence, not as a terrier, but as an admission made by the rector for the time being.

It appeared that the boundary between the higher and lower division of the parish was not very accurately known; had occasionally been varied by the removal of fences and otherwise; and that the field from which the plaintiff claimed tithes in the present action, had once been ploughed, but was soon laid down to grass again. It was clearly, however, within the higher division, as alleged in the plea.

A verdict having been given for the defendant,

Merewether, Serjt., moved for a new trial, on the ground that the document found in the custody of the landowner ought not to have been received in evidence, even as the admission of a preceding rector, when there was a regular document of the same kind, the terrier from the bishop's registry, containing no mention of the modus; Atkins v. Hatton, 3 Gwill. 1406, 2 Anst. 386; that the document itself was not entitled to any credit, alleging as it did uncertain and rank mouses; and that no modus for a division of the parish could be certain, unless that division were accurately ascertained. He objected also, that a modus, being pleaded from time immemorial, could apply only to ancient meadow; that no evidence had been offered to show that the land, the tithes of which were in question, was ancient meadow, and at all events, that it ceased to be such when it had been once ploughed. (a)

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TINDAL, C. J. The document objected to was evidence for the jury, valeat quantum. It was a very *ancient document, signed by the rector, and headed "Notification of the tithes of the parish." Though it did not come out of the proper repository for a terrier, it must have been evidence against the rector who signed it, during his incumbency; and if so, it is not easy to see why it should not be evidence against a successor as the admission of one of his predecessors. It was not of so much weight as a regular terrier, but still was some evidence to go to the jury. With respect to the boundary of the divisions of the parish, the jury had to consider a great mass of discordant evidence, but it was admitted that the field in question was within the division subject to the modus, and if an occasional alteration of fences were sufficient to destroy a modus, the end might frequently be attained by trick and management. The circumstance that the field had once been ploughed, would not alter the right when it became meadow again. There is no ground for granting the rule which has been prayed.

PARK, J. The whole of the objection to the evidence which has been received, rests on the assumption, that the document in question was not a ter rier. But it was not received as such. A terrier ought to come from the bishop's registry, and then it is unnecessary to prove the rector's handwriting. In the present case his handwriting was proved, and the instrument was received only as the statement of an interested person against himself. Suppose he had given a receipt for the modus: would not that have been evidence against a successor? The instrument in question was properly admitted upon the same principle as such a receipt.

BURROUGH, J. The document was clearly evidence as an admission by a preceding rector, and the *circumstance of a terrier from the bishop's

registry being also produced could not be a ground for rejecting it. It [*230

was offered with a different intent, and stood on a footing different from the terrier. The boundary was altogether a question for the jury, and though modus for meadow land is no longer payable if it be converted into arable, yet if it be restored to meadow again, the modus still attaches.

GASELEE, J., concurring, the rule was

Refused.

(a) But see Bishop v. Chichester, Gwill. 1323, that a parochial modus may extend to lands enclosed within time of memory; aliter as to a farm modus.

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