by Mr. Erskine, was, that the magistrates had conspired with the landlord of the inn-keeper to find a pretence for refusing him a license, thereby to compel him to surrender a very beneficial lease to his landlord. . . . The defendant pleaded the general issue, and at the trial, after the plaintiff had proved the publication of the paper in question by him, produced as witness a person whom he employed to collect legal intelligence for the use of his paper, in order to prove that the report was a true and faithful account of what passed in the Court of King's Bench upon the motion.

EYRE, Ch. Just., in summing up, told the jury, that though the matter contained in the paper might be very injurious to the character of the magistrates, yet he was of opinion, that being a true account of what took place in a court of justice which is open to all the world, the publication of it was not unlawful. The jury found a verdict for the defendant. A rule Nisi for setting aside this verdict having been obtained on a former day, upon two grounds, 1st, That the matter given in evidence did not amount to a defence in law, and 2dly, That supposing it to be a good defence, it ought to have been pleaded in bar to the action, and not received in evidence under the general issue.

Le Blanc, Serjt., now showed cause. . . . In this case the libel was not justified as true, but evidence was merely called to show that the account published in The Times was a true account of what passed in the King's Bench. . . . If the account published by the defendant be a libel, no man can report a case decided in a court of justice reflecting upon the character of another.

Adair and Marshall, Serjts., contra. 1st, The matters given in evidence did not amount to a defence in law. . . . Copying a scandalous matter is, according to Lord HOLT, sufficient to constitute a libel, for it perpetuates the memory of the scandal; though if the copy be made by a clerk in writing an indictment, or a student a note, it is not so, because not done ad infamium. It is now perfectly settled, that every one is answerable for the slander which he reports of another.

The Court were of opinion, that this action could not be maintained. But some doubts entertained upon the bench whether the matter of justification ought not to have been pleaded, the case stood over; and no judgment was ever given.

943. LEWIS v. LEVY. (1858. E. B. & E. 537, 559.) Lord CAMPBELL, C. J. . . The case of Curry v. Walter, 1 B. & P. 525 [supra, No. 942] has been often criticised, but never overturned, and often acted upon. And in Rex v. Wright, 8 T. R. 293, 298, it received the unqualified approbation of that great judge, Mr. Justice LAWRENCE, who observed that, 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 these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such pro

ceedings. Therefore we think that a fair and impartial report of this proceeding against the plaintiff, supposing it to have been terminated in one day, would have been privileged. And, for the same reasons, an impartial and correct report of the proceedings at the three different hearings would have been privileged if published simultaneously on the 18th of July. . . . On the same principles, we think we ought to hold in this case that no action can be maintained for any part of the impartial and correct and bona fide report of this proceeding against the plaintiff before the magistrate, which ended in the charge being dismissed; although, the proceeding being adjourned from day to day, the report appeared in portions in different numbers of the defendant's journal.

We give no opinion in favor of the general legality of publishing reports of preliminary examinations before a magistrate where the party accused has been committed or held to bail for an indictable offence. But we cannot join in the sweeping condemnation of police reports which has been pronounced obiter before the benefit arising from those reports had been fully experienced. We believe that they often lead to the detection and punishment of crime, and that they sometimes assist in the vindication of character. Against the severe denunciation of police reports by several eminent judges may be placed the following opinion of Lord DENMAN, C. J., solemnly delivered by him before a select committee of the House of Lords, in the year 1843, on the law of libel. "I have no doubt that police reports are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in course of trial, and they do not form their opinion till the trial, is had. Perfect publicity of judicial proceedings is of the highest importance in other points of view, but in its effects on character I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest on the wrong person; both these evils are prevented by correct reports."

944. COWLEY v. PULSIFER

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1884

137 Mass. 392

HOLMES, J. This is an action against the owners and publishers of the Boston Herald for a libel printed in that newspaper. The alleged libel was a report of the contents of a petition for the removal of the plaintiff, an attorney at law, from the bar. The report was fair and correct, but the petition included allegations which would be actionable unless justified. In their answer the defendants rely upon privilege; and the main question raised by the plaintiff's exceptions is whether the publication was privileged, as ruled by the court below. The petition had been presented to the clerk of the Supreme Judicial Court for the county of Middlesex in vacation, had been marked by

him, "Filed February 23, 1883," and then or subsequently had been handed back to the petitioner, but it did not appear that it ever had been presented to the court or entered on the docket.

We are of opinion that the foregoing circumstances do not constitute a justification, and that the defendants do not bring themselves within the privilege admitted by the plaintiff to attach to fair reports of judicial proceedings, even if preliminary or ex parte. No binding authority has been called to our attention which precisely determines this case, and we must be governed in our conclusion mainly by a consideration of the reasons upon which admitted principles have been established.

1. We begin by recalling the familiar distinction between the privilege of the petitioner in respect of filing his petition, and the privilege of the same or any other person in respect of subsequently printing it in the newspapers, or otherwise publishing it to strangers who have no interest in the matter. This distinction, we believe, has always been recognized, both before and since the case of Lake v. King, [ante, No. 925]; S. C. 1 Lev. 240. Weston v. Dobniet, Cro. Jac. 432. Rex v. Creevey, 1 M. & S. 273, 280. M'Gregor v. Thwaites, 3 B. & C. 24, 31, 35. Flint v. Pike, 4 B. & C. 473, 481. Commonwealth v. Blanding, 3 Pick. 304, 317. We therefore lay on one side all cases which only tend to show that the petitioner incurred no liability by handing his petition to the clerk, and by whatever publication that involved, and we shall assume, for the purposes of this case, that he incurred no liability by so doing.

2. The privilege set up by the defendants is not that which attaches to judicial proceedings, but that which attaches to fair reports of judicial proceedings. Now what is the reason for this latter? The accepted statement is that of Mr. Justice Lawrence in Rex v. Wright, 8 T. R. 293, 298:

"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 these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings."

See also Davison v. Duncan, 7 El. & Bl. 229, 231; Wason v. Walter, [post, No. 949]; Commonwealth v. Blanding, 3 Pick. 314. The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. It used to be said sometimes that the privilege was founded on the fact of the court being open to the public. Patteson, J., in Stockdale v. Hansard, 9 A. & E. 1, 212. This, no doubt, is too narrow, as suggested by Lord Chief Justice Cockburn in Wason v. Walter, ubi supra; but

the privilege and the access of the public to the courts stand in reason upon common ground. Lewis v. Levy, [ante, No. 943]. It is desirable that the trial of causes should take place under the public eye, not [only?] because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

3. If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity. See Sanford v. Bennett, 24 N. Y. 20, 27; Lewis v. Levy, ubi supra; Barber v. St. Louis Dispatch Co., 3 Mo. App. 377. We waive consideration of the tendency of a publication like the present to create prejudice, and to interfere with a fair trial. Barrows v. Bell, 7 Gray, 301, 312, 316. In re Cheltenham & Swansea Railway Carriage & Wagon Co., L. R. 8 Eq. 580. Tichborne v. Mostyn, L. R. 7 Eq. 55, n. Read & Huggonson's case, 2 Atk. 469; S. C. nom. Roach v. Garvan, 2 Dick. 794. Neither shall we discuss the question what limitations there are, if any, to the requirement that the proceeding must have been acted on and decided. Barrows v. Bell, ubi supra. Delegal v. Highley, 3 Bing. N. C. 950, 963. For apart from the distinction between what takes place in open court and the contents of papers filed in the clerk's office, it might be said that these considerations apply with equal force to a report of proceedings in court published from day to day as they take place, and that nevertheless it has been held that reports might be so published, and that it is not necessary to wait until a trial is completed. Lewis v. Levy, ubi supra. See Usill v. Hales, 3 C. P. D. 319, 325. The practice of publishing reports in this manner is universal with us, and we may concede that it might happen that the proceedings of the first day stopped with the reading of the pleadings, or, in this case, of the petition, and that a fair report under those circumstances would be privileged, without considering whether a publication of the first day's proceedings could be made actionable by relation if the subsequent ones should be omitted. For the purposes of the present case, it is enough to mark the plain distinction between what takes place in open court and that which is done out of court by one party alone, or more exactly,

as we have already said, the contents of a paper filed by him in the clerk's office.

...

. . . It may be objected that our reasoning tacitly assumes that papers properly filed in the clerk's office are not open to the inspection of the public. We do not admit that this is true, or that the reasons for the privilege accorded to the publication of proceedings in open court would apply to the publication of such papers, even if all the world had access to them. But we do not pause to discuss the question, because we are of opinion that such papers are not open to public inspection. . . . The Sts. of 1851, c. 161, and 1857, c. 84, both of which will be seen on inspection to have no reference to the records of the courts. . . . Exceptions sustained.

C. Cowley, pro se. S. Lincoln, for the defendants.

945. KIMBALL v. POST PUBLISHING CO. (1908. 199 Mass. 248, 85 N. E. 103.) HAMMOND, J. The articles of which the plaintiffs complain contained reports of certain proceedings in court. . . . So far as respects the report of the court proceedings the articles were privileged. This case differs materially from Cowley v. Pulsifer [supra, No. 944]. In that case there had been no action by the Court. Here the bill had been presented to the Court and the Court had acted upon it so far as to make a special order that the defendants therein should appear and show cause why they should not be enjoined. This act of the Court was a judicial proceeding and, whatever might formerly have been the rule, it was a subject for a privileged report, although the cause had not yet been finished. It was an act begun in a case, and in the end there must be a final decision. The words of ESHER, M. R., in Kimber v. Press Ass'n, (1893) L. R. 1 Q. B. 65, 71, seem to us to be a true statement of the law on this subject: "I am, therefore, of opinion that where the proceedings are such as will result in a final decision being given, a final and accurate report, made bona fide, of those proceedings is privileged, although it be published before the final decision." And in that case the rule was applied to the proceedings upon an ex parte application for the issue of a summons on a charge of perjury. If this were not so then, in the language of Lord ESHER, "the ridiculous result would follow that, where the trial of a case of the greatest possible interest lasted fifty days, no report could be published until it was ended."

946. BROWN v. PROVIDENCE TELEGRAM PUBLISHING COMPANY

SUPREME COURT OF RHODE ISLAND. 1903

25 R. I. 117, 54 Atl. 1061

TRESPASS on the case for libel. Heard on petition of defendant for new trial, and petition denied.

Per Curiam. The defendant's petition for a new trial is denied, and judgment will be rendered upon the decision of Mr. Justice Douglas, which is approved and adopted as the opinion of the Court.