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while he knew it to be loaded to another's head, The American cases sustain the rule that as long as the mort-
and fire it off, without intending to kill him; but even gagor is allowed to remain in possession he is entitled to
then the state of mind of the party is most material to receive and apply to his own use the income and profits of
be considered. For instance, if such an act were to be

the mortgaged estate; and although the mortgagee may
done by a boru idiot, the intent to kill could not be

have the right to take possession upon condition broken, inferred from the act. So if the defendant is proved

if he does not exercise the right he cannot claim the repts;

if he wishes to receive them he must take means to obtain
to have been intoxicated, the questiou becomes a more

possession by foreclosure.
subtle one; but it is of the same kind, namely, was he
reudered by intoxication entirely incapable of form-

N error to the Circuit Court of the United States
ing the intent charged? The case cited is one of great for the District of Oregon.
authority, from the eminence of the judge who de- This was an action at law brought by Walker, the
cided it. The only difficulty is, in kuowing whether defendant in error, against Teal, the plaintiff in error.
we get the exact words of the judge from the case The record disclosed the following facts: Ou August
quoted; and eren if we do, whether all the facts are 19, 1874, Beruard Goldsmith borrowed of James D.
stated which induce him to lay down the particular Walker the sum of $100,000, aud gave the latter his
rule. Although I agree with the substance of what note, dated Portland, Oreg., August 19, 1874, for the
my brother Pattesou is reported to have said, I am payment to Walker or his order two years after date
not so clear (33) as to the propriety of adopting the of the sum borrowed, with interest payable monthly
very words. If he said that the jury could not find at the rate of one per cent per month from date until
the intent without being satisfied it existed, I shall so paid. Goldsmith at the time the uote was executed,
lay it down to you: the only difference between us is was the owner iu fee of certain lands in the State of
as to the amount and nature of the proof sufficient to Oregon and in the Territory of Washington, and he
justify you in coming to such a conclusiou. Under and Joseph Teal were the joint owners and tenants in
such circumstances as these when the act is unambig- common of certain other lands in Oregon. On August
uous, if the defendant was sober, I should have no 19, 1874, Goldsmith conveyed to one Henry Hewett, by
difficulty in directing you that he had the intent to four several deeds, absolute on their face, the lands in
take away life, where if death had ensued the crime Oregon and in Washington Territory of which he was
would have been murder. Drunkenness is ordinarily tbe sole owner, and on the same day he and Teal exe-
neither a defense nor excuse for crime, and where it is cuted and delivered to the same grantee three several
available as a partial answer to a charge it rests on the deeds, absolute on their face, for the lands which they
prisoner to prove it, and it is not enough that he was jointly owned as tenants in common, one being for
excited or rendered more irritable unless the intoxica- lands in Linn county, another for contiguous lands in
tion was such as to prevent him from restraining bim- Polk and Benton counties, and the third for lands in
self from committing the action in question, or to take Clackamas county, all in the State of Oregon. These
away from him the power of forming any specific in- deeds were intended as a security for the above-men-
tention. Such a state of drunkenness may no doubt tioned note, as appeared by a defeasance in writing,

executed on the same day as the vote by Goldsmith,

Teal, Hewett and Walker. This instrument, after reRULE V. A person is presumed to intend to do what is citing the execution of the note above mentioned, dewithin his right and power rather than what is beyond clared that Hewett held the legal title to the lands conthem.

veyed to him as aforesaid, in trust and for the uses ILLUSTRATIONS.

therein described. It then declared as follows: “Sub. A., B. and C. were the devisces of an estate for life ject to the legal title of Hewett, Teal and Goldsmith, to become one in fee ou the death of D. They made a or Goldsmith alone, shall (1) retain possession of the division of the estate. The question was whether they lands, and take and have, without account, the issues had divided the life estate or the estate in fee. Held, and profits thereof, they paying all taxes and public the presumption was that it was the former.(34) charges imposed thereon, until said note shall become

"It is a vatural presumption," it was said in case 1, due and remain unpaid thirty days; (2) that if such de“that men intend to do that wbich they have a right fault is made in the payment of said note, Goldsmith and power to do rather than what is beyond their right and Teal 'will and shall, on demand, peacefully suror power.

* The division was of course meant render to Hewitt'the possession of said property, who to be a complete one of whatever was divided unless 'may and shall proceed to take possession of the same, the contrary appears. The life estate could have been and on thirty days' notice in writing to Teal and completely divided at that time, nothing else being Goldsmith

requiring them to pay said necessary to render it perfect, but the remainder | debt,

aud on their failure so to pay shall could not have been so divided at that time, for that sell the some at public auction on not more than thirty division could not have been completed till the death days' notice,' or sufficient thereof to pay the debt and of D. *

* This presumption must prevail until charges.'' rebutted by affirmative contrary evidence."

The instrument further declared “ that if the above

Joan D. JAWSON. recited promissory note, and the interest thereon, and ST. LOUIS, Mo.

all the taxes, charges and assessments on said land be

duly paid by said Goldsmith, or for him, then the deeds JORTGAGE YERE SECURITY-MORTGAGEE NOT aforesaid shall be void, and said Hewett, or his repreENTITLED TO REYTS.

sentatives or successors in trust, shall recouvey all said

lands, and every part thereof, to said Teal and GoldSUPREME COURT OF THE UNITED STATES, smith, or said Goldsmith, or their representatives, en: APRIL 7, 1884.

titled thereto."

On October 18, 1876, there was due and unpaid upon

the note made by and delivered by Goldsmith to A deed absolute on its face, but intended as a security for the Walker the sum of $96,750. To secure an extension of payment of money, is a mortgage even at law, if accom

time of one year from that date for the payment of panied by a separate contemporaneous agreement in writ

the note, Goldsmith and Teal agreed to give further ing to reconvey upon the payment of the debt.

security for its payment. (33) In R, v. Cruse, 8 C. & P. 546.

Thereupon Goldsmith conveyed by a deed absolute (34) Pool v. Morris, 29 Ga. 375 (1859).

on its face to Hewett certain lots in the city of Port

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land, of which he was the owner, and Goldsmith and rendered judgment. To reverse that judgment Teal
Teal by a like deed conveyed to Hewett certain lots in prosecuted this writ of error.
Portland and certain lands in Linn county, Oregon, of

John H. Mitchell, for plaintiff in error.
which they were joiut owners and tenants in common.
On the same day, October 18, 1876, Walker, Hewett,

A. H. Garland, for defendant in error.
Goldsmith and Teal executed another defeasance, in Woods, J. The writ of error is not taken to reverse
which, after reciting the conveyances by Goldsmith, the judgment of the court upon the demurrer to the
and Goldsmith and Teal, above mentioned, declared complaint, for that was not a final judgment, but to
that Hewett held the legal title to lands so conveyed reverse the judgment rendered upon the verdict of the
in trust, and to the same uses and purposes for which jury. The error, if it be an error, of overruling the
he held the lands mentioned in the defeasance of Au- demurrer could have been reviewed on motion in ar-
gust 19, 1874. By this instrument Goldsmith and Teal rest of judgment, and is open to review upon this writ
undertook and agreed that Goldsmith should pay of error. When the declaration fails to state a cause
promptly one-twelfth of ten per cent per annum of of action, and clearly shows that upon the case as
the interest of the note every month, and should pay stated the plaintiff cannot recover, and the demurrer
the principal and the residue of the interest at the end of the defendant thereto is overruled, he may answer
of the year. It was further stipulated between the upon leave and go to trial without losing the right to
parties that if default was made in the payment of the have the judgment upon the verdict reviewed for the
monthly installments of interest the principal should error in overruling the demurrer. The error is not
immediately become due, and all the property, both waived by answer, nor is it cured by verdict. The
that couveyed August 19, 1874, and that couveyed Oc- question therefore whether the complaint in this case
tober 18, 1876, should be sold for the payment thereof, states facts sufficient to constitute a cause of action is
as by law and the agreement of August 19, 1874, was open for consideration.
provided. The instrument of October 18, 1876, further The plaintiff in error insists that Goldsmith, having
provided as follows: “The agreement of August 19, conveyed to him all his estate in the lands described
1874, is not annulled, vacated or set aside by the exe- in the deed to Hewett, the latter cannot recover of
cution of this agreement, excepting in so far as the him damages, that is to say, the rents and profits, be-
same may conflict with this agreement; in all other cause he refused to deliver to him the premises. We
respects the two instruments are to be taken and con- are of opinion that this contention is well founded
strued together."

and that neither Goldsmith nor the plaintiff in error Interest was paid ou the note made by Goldsmith to was liable to account to Hewett or Walker for the the plaintiff up to January 21, 1877, but none after that, rents and profits of the premises. date. In April, 1877, Goldsmith conveyed to Teal all A deed absolute upon its face, but intended as a sehis estate in the lauds which he had conveyed in trust curity for the payment of money, is a mortgage even to Hewett by the deeds of August 19, 1874, and Octo- at law, if accompanied by a separate contemporaneous ber 18, 1878, and put Teal in possession thereof.

agreement in writing to reconvey upon the payment of On July 6, 1977, the interest on the note being in ar- the debt. Nugent y. Riley, 1 Met. 117; Wilson v. rear since January 21 preceding, Hewett demanded of Shoenberger, 31 Penn. St. 255; Dow v. Chamberlain, 5 Teal the possession of all the property conveyed by McL, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. said deeds. He refused to yield possession, and held Shears, 1 Wend. 433; Friedley v. Hamilton, 17 S. & R. the lots in the city of Portland until November 30, 70; Shaw v. Erskine, 43 Me. 371. 1878, and the farm lauds until some time in the same It is clear upon these authorities that the three deeds month and year.

executed by Goldsmith and Teal jointly, and the sevWalker, by reason of Hewett's refusal to surrender eral deeds executed by Goldsmith alone, to Hewett, possession of the property conveyed in trust to Hew- on August 19, 1874, and the defeasauce executed on ett, was compelled to and did bring suit to enforce the that day by Hewett and Walker are to be construed sale of the property. All the property was sold, either togetber, and so construed they constitute a mortgage in accordance with the terms of the defeasances above given to secure a debt. The lands owned by Goldmentioned or by order of court, and the proceeds of smith were conveyed by several deeds, evideutly for the sale fell far short of paying the note, leaving a bal- convenience in registration, as the lands lay in sev. ance due thereon of more than $50,000, which Gold- eral counties of Oregon and some of them in the Tersmith had no means to pay.

ritory of Washington. The lands owned by Goldsmith This action was brought by Walker, the payee of the aud Teal jointly also lay in several counties, and were note, against Teal, to recover the damages which he conveyed by separate deeds for the same reason. The claimed be had sustained by the refusal of Teal to sur- execution of all the deeds and the execution of the derender possession of the property of which Goldsmith feasance which applied to all the deeds, occurred on had been the owner, or which he had owned jointly the same day, and was clearly one transaction, the obwith Teal, and which had been conveyed to Hewett inject of which was to secure the note for $100,000 made trust as aforesaid. The complaint recited the facts and delivered by Goldsmith to Walker. The same reabove stated, and averred that by reason of the refusal marks apply to the second set of deeds executed by of Teal to surrender possession of the property to Goldsmith and Goldsmith and Teal on October 18, Hewett, Walker had been damaged in the sum of 1876, and the defeasance executed by Hewett and $16,000, for which sum the complainants demanded Walker on the same day. In fact all the deeds judgment.

and the two defeasances might without vioTeal filed a demurrer to the complaint on the leuce be regarded in equity as two mortgages exeground that it did not state facts sufficient to consti- cuted at different times with one and the same defeasbute a cause of action. The demurrer was overruled, ance; for the defeasance last executed provides that with leave to Teal to answer. He answered, and it shall not have the effect to annul, vacate or set aside among other things, denied that Walker 'had been the first, except in so far as the two conflict; in all damaged by the refusal of Teal to deliver possession other respects the two were to be taken and construed of the property in the sum of $16,000, or any other together. We are therefore to apply the same rules to

the questions arising in this case as if we bad to deal The case, having been put at issue by the filing of a with mortgages executed in the ordinary form. replication, was tried by a jury, who returned a ver- The decision of the question raised by the demurrer diot for the plaintiff for $5,345.88, on which the court to the complaint is not affected by the stipulation con

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tained in the defeasance of August 19, 1874, that Goldsmith and Teal should, on default made in the paymeut of the principal of Goldsmith's note, and ou the demand of Ilewett, surrender the mortgaged premises to him. If this was a valid ,and binding undertaking it did not change the rights of the parties. Without any such stipulation, Hewett, unless it was otherwise provided by statute, was entitled, at least on default in the payment of the note of Goldsmith, to the possession of the mortgaged premises. Keech v. Hall, 1 Doug. 21; Rockwell v. Bradley, 2 Conn. 1; Smith v. Johns, 3 Gray, 517; Jackson v. Dubois, 4 Johns. 216; Furbush v, Goodwin, 29 N. H. 321; Houard v. Hloughton, 61 Me. 445; Den ex dem. Hart v. Stockton, 7 Halst. 3:22; Ely v. McGuire, 2 Ohio, 223, vols. 1 and 2 (24 ed.) 372. The right of the parties are therefore the same as if the defeasance coutained no contract for the delivery of the possession.

We believe that the rule is without exception that the mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession. In the case of Moss v. Gallimore, 1 Doug. 279, Lord Mansfield held that a mortgagee, after giving 10tice of his mortgage to a tenant in possession holding uuder a lease older than the mortgage, is entitled to the rent in arrear at the time of the notice as well as to that which accrues afterward. This ruling has been justified on the ground that the mortgagor, having conveyed his estate to the mortgagee, the tenants of the former became the tenants of the latter, which enabled him, by giving notice to them of his mortgage, to place himself to every intent in the same situation toward them as the mortgagor previously occupied. Rawson v. Eicke, 7 Ad. & El. 451; Burrowes v. Gradin, 1 Dowl. & Lowndes, 213.

Where however the lease is subject to the mortgage the rule is well settled in this country that as no reversion vests in the mortgagee, aud 10 privity of estate or contract is created between him and the lessee, he cannot proceed, either by distress or action, for the recovery of the rent. 3layo v. Shattuck, 14 Pick. 533 ; Watls v. Coffin, 11 Johns. 495; McKircher v. Hawley, 16 id. 289; Sanderson v. Price, 1 Zabr. 637; Price v. Smith, 1 Green's Ch. N. J. 516.

The case of Moss v. Gallimore has never been held to apply to a mortgagor or the vendee of his equity of redemption. Lord Mansfield himself, in the case of Chinnery v. Blackman, 3 Doug. 391, held that until the mortgagee takes possession the mortgagor is owner to all the world, and is entitled to all the profits made.

The rule on this subject is thus stated in Bacon's Abridgment, Title Mortgage, C: “Although the mortgagee may assume possession by ejectment at his pleasure, and according to the case of Moss 7. Gallimore, Doug. 279, may give notice to the tenants to pay him the rent due at the time of the notice, yet if he suffers the mortgagor to remain in possession, or in receipt of the rents, it is a privilege belonging to his estate that he cannot be called upon to account for the rents and profits to the mortgagee, even although the security be insufficient."

So in Higgins v. York Buildings Company, 2 Atk. 107, it was said by Lord Hard wicke: “In case of a mortgagee, where a mortgagor is left in possession, upon a bill brought by the mortgagee for an account in this court, he never can have a decree for an account of rents and profits from the mortgagor for any of the years back during the possession of the mortgagor," and the same judge said in the case of Mead v. Lord Orrery, 3 Atk. 241: “As to the mortgagor, I do not know of any instance where he keeps in possession that he is liable to account for the rents and profits to the mortgagee, for the mortgages ought to take the legal remedies to get into possession."

In Wilson, ex parte, 2 Ves. & B. 252, Lord Eldon said: “Admitting the decision in Moss v. Gallimore to be sound law, I have been often surprised by the statement that a mortgagor was receiving the rents for the mortgagee.

In the instance of a bill filed to put a term out of the way, which may be represented as in the nature of an equitable ejectment, the court will in some cases give an account of the past rents. There is not an instance that a mortgagee has per directum called upon the mortgagor to account for the rents. The consequence is that the mortgagor does not receive the rents for the mortgagee." See also Coleman v. Duke of St. Albans, 3 Ves. Jr. 25; Gresley v. Adderly, 1 Swanst. 573.

The American cases sustain the rule that so long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate, and although the mortgagee may bave the right to take possession upon condition broken, if he does not exercise the right, he cannot claim the rents; if he wishes to receive the rents he must take means to obtain the pos. session. Wilder v. Houghton, 1 Pick. 87; Boston Bande v. Reed, 8 id. 459; Noyes v. Rich, 52 Me. 115.

Iu Hughes y. Edwards, 9 Wheat, 500, it was held that a mortgager was not accountable to the mortgagee for the reuts and profits received by him during his possession, even after default, and even though the land, when sold, should be insufficient to pay the debt, and that the purchaser of the equity of redemption was not accountable for any part of the debt beyond the amount for which the land was sold.

In the case of Gilman v. II. & Miss. Tel. Co., 91 U.S. 603, it was declared by this court that where a railroad company executed a mortgage to trustees on its property and franchises, “together with the tolls, reuts and profits to be had, gained or levied thereupon," to secure the payment of bonds issued by it, the trustees, in behalf of the creditors, were not eutitled to the tolls and profits of the road, even after condition broken, and the filing of a bill to foreclose the mortgage, they not having taken possession or bad a receiver appointed. The court said in delivering judgment in this case: "A mortgager of real estate is not liable for rent while in possess on. He contracts to pay interest, not rent." So in Kounize v. Omaha Hotel Co., 107 U. S. 378, it was said by the court, speaking of the rights of a mortgagee:

But in the case of a mortgage the land is in the nature of a pledge; it is only the land itself, the specific thing, which is pledged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or third person claims under him. **** The plaintiff in this case was not entitled to the possession, nor the rents and profits." See also Hutchins v. King, 1 Wall. 53, 57-58.

Chancellor Kent states the modern doctrine in the following language : “ The mortgagor has a right to lease, sell and in every respect to deal with tbe mortgaged premises as owner so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents, and the mortgagee must recover the possession by regular entry by suit before he can treat the mortgagor, or the person holding under him, as a trespasser." 4 Kent Com. 157. See also American Bridge Co. v. Heidelbach, 194 U. S. 798; Clarke v. Curtis, 1 Grat. 289; Bank of Ogdensburg v. Arnold, 5 Paige Ch. 38; Hunter v. Hays, 7 Biss. 362; Souter v, La Crosse Ry., Woolworth C. C. 80, 85; Foster v. Rhodes, 10 Bankr. Reg. 523. The authorities cited show that as the defendaut in error took no effectual steps to gain possession of the mortgaged premises be is uot entitled to the rents and

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profits while they were occupied by the owner of the the plaintiff from the bar. The report was fair and equity of redemption.

correct, but the petition included allegations which The case against the right of the defendant in error would be actionable unless justified. In their answer to recover in this case the rents and profits received the defeudants rely upon privilege alone. They do not by the owner of the equity of redemption is strength- set up the truth of the charges in the petition, and the ened by sec. 323, ch. 4, title 1, Gen. Laws of Oregon, main question raised by the plaintiff's exceptions is 1843-1872, which declares that “a mortgage of real whether the publication was privileged as ruled by the property shall not be deemed a conveyance so as to en- court below. The petition had been presented to the able the owner of the mortgage to recover possession clerk of the Supreme Judicial Court for the county of of the real property without a foreclosure and sale ac- Middlesex in vacation; it had been marked by him, cording to law."

“Filed February 23, 1883," and then, or subsequently, This provision of the statato cuts up by the roots had been handed back to the petitioner; but it did the doctrine of Moss v. Gallimore, ubi supra, and gives not appear that it ever had been presented to the court effect to the view of the American courts of equity or entered on the docket. We are of the opinion that that a mortgage is a mere security for a debt, and es- the foregoing circumstances do not constitute a justifitablishes absolutely the rule that the mortgagee is not cation, and that the defendants do not bring thementitled to the rents and profits until he gets posses. selves within the privilege admitted by the plaintiff to sion under a decree of foreclosure. For if a mortgage attach to fair reports of judicial proceedings, even if is not a conveyance, and the mortgagee is not entitled preliminary or ex parte. No binding authority has to possession, his claim to the rents is without support. been called to our attention which precisely deterThis is recognized by the Supreme Court of Oregon as mines this case, and we must be governed in our conthe effect of a mortgage in that State. In Besser v. clusion mainly by a consideration of the reason upon Hawthorn, 3 Ore. 129, 133, it was declared : “Our sys- which admitted principles have been established, and tem has so changed this class of contracts that the the peculiar features of the proceeding which has been mortgagor retains the right of possession and the legal | publisbed. title." See also Anderson v.Baxter, 4 Oreg. 105; Roberts We begin by recalling the familiar distinction be7. Sutherlin, id. 219.

tween the privilege of the petitioner in respect of filing The case of the defendant in error cannot be aided his petition and the privilege of the same or any by the stipulation in the defeasance of August 19, 1874, other person in respect of subsequently printing it in exacted by the mortgagee, that Goldsmith and Teal the newspapers or otherwise publishing it to strangers would, upon the default in the payment of the note se- aving no interest in the matter. This distinction we cured by the mortgage, deliver to Hewett, the trustee, believe has always been recognized, both before and the possession of the mortgaged premises. That con. since. Lake v. King, 1 Saund. 120, 133; S. C., 1 Lev. tract was contrary to the public policy of the State of 240; Webster v. Dobniet, Cro. Jao. 432, cited infra; Oregon, as expressed in the statute just cited, and was Rex v. Creery, 1 M. & S. 273, 280; McGregor v. Thonot binding on the mortgagor or his vendee, and al- raite, 3 B. & C. 24, 31, 35; Flind v. ike, 4 id. 473, though not expressly prohibited by law, yet like all 481; Com. v. Blanding, 3 Pick. 304, 317. We therefore contracts opposed to the public policy of the State, it lay on one side all cases which only tend to show that cannot be enforced. Railroad Co. v. Lockwood, 17 the petitioner incurred no liability by handing bis peWall. 357; Bank of Kentucky v. Adams Express Co., 93 tition to the clerk, and by whatever publication that U. 9. 174; Marshall v. Balt. & Ohio R. Co., 16 How. involved, and we shall assume for the purposes of this 314; Meguire v. Corwine, 101 U. S. 108.

case that he incurred no liability by so doing. In any view of the case we are of opinion that The privilege set up the defendant is not that the defendant in error was not entitled to receive the which attaches to judicial proceedings, but that which rents sued for in this action. As this conclusion takes attaches to fair reports of judicial proceedings. Now away the foundation of the suit it is unnecessary to

what is the reason for this latter? The accepted statenotice other assignments of error.

ment is that of Mr. Justice Lawrence, in Rex v. The judgment of the Circuit Court is reversed, and Wright,. 8 T. R. 293, 298: “Though the publication of the cause remanded to that court for further proceed- such proceedings may be to the disadvantage of the ings in conformity with this opinion,

particular individual concerned, yet it is of vast importance to the public that the proceedings of

courts of justice should be universally knowo. The LIBEL PUBLICATION BY NEWSPAPER OF general advantage to the country in having these proPAPERS FILED IN COURT.

ceedings made public more than counterbalances the

inconveniences to the private persons whose conduct MASSACHUSETTS SUPREME JUDICIAL COURT,

may be tbe subject of such proceeding.” See also Da

vison v. Duncan, 7 El. & Bl. 229, 231; Mason v. Walter, JUNE, 27 1884.

L. R., 4 Q. B. 73, 88; Com. v. Blanding, 3 Pick. 304,

314. The chief advantage to the country which we can COWLEY V. PULSIFER.

discern, and that which we understand to be intended On proceedings for the disbarment of an attorney the peti- | by the foregoing passage, is the security which publiction, among others, included allegations, which unless

ity gives for the proper administration of justice. It justified, would have been actionable. The petition was

used to be said sometimes that the privilege was filled, but it did not appear that it had ever been presented

founded on the fact of the court being open to the pubto the court or docketed. In an action against defendant, the owner of a newspaper, for

lic. Patterson, J., in Stockdale v. Howard, 9 Ad. & E. libel in publishing a report of the contents of the petition,

1, 212. held, that the report, though fair and correct, was not

This po doubt is too narrow, as uggested by Lord privileged.

Chief Justice Cockburp in Wason v. Walter, L. R., 4 James F. Pickering and Charles Crowley, for plaintiff.

Q. B. 73, but the privilege and the access of the public

to the courts stand in reason upon common ground. Solomon Lincoln, for defendants.

Lewis v. Levy, El. Bl. & El. 537, 558. It is desirable HOLMES, J. This is an action against the owners that the trial of causes should take place under the and publishers of the Boston Daily Herald for a libel public eye, not because the controversies of one citizen published in that newspaper. The alleged libel was a with another are of public concern, but because it is report of the contents of a petition for the removal of of the highest moment that those who administer jus


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tice should always act ouder the sense of public re- 580; Bowd v, Russell, 46 L. J. (N. S.) Ch. 414, 416; sponsibility, and that every citizen should be able to Cann v. Cann, 3 Hare, 333; S. C., 2 Ves. Sr. 520; 2 Desatisfy himself with his own eyes as to the mode in chew, 792. A contempt of court cannot be privileged, which a public duty is performed. If these are not the and we see no reason to doubt that an action could be only grounds upon which fair reports of judicial pro- maintained for such a publication, nor do we see any ceedings are privileged, all will agree that they are not reason for confining the liability to proceedings in the least important ones. And it is clear that they equity. Bowden v. Russell, ubi supra. “If one exhave no application whatever to the contents of a pre- hibit a scandalous bill, if the court have jurisdiction liminary written statement of a claim or charge. These of such matters, an action lies not; otherwise it is, il do not constituto a proceeding in open court. Knowl- the court have not jurisdiction, or having it the party edge of them throws no light upon the administration | publish his bill abroad, the said bill being false." of justice. Both form and contents depend wholly on Weston v. Dobinet, Cro. Jac. 432. See Delegal v. Highthe will of a private individual, who may not be even ley; Barbee v. St. Louis Dispatch Co., ubi supra. We an officer of the court. It would be carrying privi- have placed only a qualified reliance on the cases cited, lege farther than we feel prepared to carry it, to say because some of them were decided before the latest that by the easy means of entitling and filing it in a developments of the law of libel, and those on the cause a sufficient foundation may be laid for scatter- question of contempt have been placed on grounds not ing any libel broadcast with impunity. See Sanford v. perhaps convincing with regard to the present quesBennett, 20 N. Y. 20, 27; Lewis v. Levy, ubi supra, and tion, but they lend strong support to our decision. especially the reasoning in Barber v. St. Louis Dis. It may be objected that our reasoning tacitly aspatch Co., 3 Mo. App. 377.

Bumes that papers properly filed in the clerk's office We waive consideration of the tendency of a publi- are not open to the inspection of the public. We do cation like the present to create prejudice and inter- not admit that this is true, or that the reasons for the fere with a fair trial. Barrows v. Bell, 7 Gray, 301, 312, privilege accorded to the publication of proceedings in 316; In re Cheltenham & Swansea Railway Carriage and

open court would apply to the publication of such paWagon Co., L. R., 8 Eq. 580; Tichborne v. Mostyn, L.

pers, even if all the world had access to them. But we R., 7 Eq. 55 n.; Read & Higginson's Case, 2 Atk. 469;

do not pause to discuss the question, because we are of S. C., nom. Roach v. Garran, 2 Dick. 794. Neither opinion that such papers are not open to public inshall we discuss the question what limitations there

spection. A different conclusion might be drawn from are, if any, to the requirement that the proceeding a hasty reading of the Public Statutes, ch. 37, sec. 13, must have been acted on and decided. Barrows v. but the county records or files wbich are there ordered Bell, ubi supra; Delegal v. Highley, 3 Bing. N. C. 950,

to be opened for public inspection and examination, 963. For apart from the distinction between what

and of which any persou may take copies, are the rectakes place in open court and the contents of papers

ords and files of the county, not of the courts of the filed in the clerk's office, it might be said that these Commonwealth within and for that county. We see considerations apply with equal force to a report of

no reason to suppose that the Public or General Stat. proceedings in court, published from dayito day as utes were intended entirely to change the scope of the they take place, and that nevertheless it has been held

original enactments which they embody. Those were that reports might be so published, and it is not ueces

the acts of 1851, ch. 161, and 1857, ch. 84, both of which sary to wait until a trial is completed. Lewis v. Levy,

will be seen on inspection to have no reference to the abi supra. See Usell v. Hales, 3 C. P. D. 319, 325. The

records of the courts. We have assumed for the purpractice of publishing reports in this manner is uni

poses of this discussion that the petition was rightly versal with us, and we may coucede that it might hap

filed, and that the defendants were entitled to any pen that the proceedings of the first day stopped with

benefit which they might derive from that circumthe reading of the pleadings, or in this case of the pe

stance. But we do not mean to intimate any opinion tition, and that a fair report under these circumstances

one way or the other upon the question. would be privileged without considering whether a

Exceptions sustained. publication of the first day's proceedings could be inade actionable by relation if the subsequent ones Note.--See 33 Am. Rep. 403 ; 19 id. 542; 31 Eng. R. should be omitted. For the purposes of the present 574. Newspaper reports of proceedings in courts of case it is enough to mark the plain distinction between justice, if substantially correct and not garbled or parwhat takes place in open court and that which is done tial, and made bona fide and without malice, are priviout of court by one party alone, or more exactly, as we leged. McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; have already said, the contents of a paper filed by him Rriols v. Backer, 6 Heisk. (Tenn.), 395; Ackerman v. im the clerk's office. This distinction, although not

Jones, 37 N. Y. Sup. Ct. 42; Edsall v. Brooks, 26 established by them, derives an indirect sanction from How. Pr. 426 ; 17 A Pr. 221; 1 Rob. 29; Sanford v. the cases which have turned on the question whether Bennett, 24 N. Y. 20. See Saunders v. Baxter, 6 Heisk. the proceedings-for instance, the examination of a (Tenu.) 369. bankrupt-took place in a public court.

Lewis v.
Lery, ubi supra. See also Fleming v. Neuton, 1 H. L.
Cas. 363, 378,

It is further to be noticed that the language of Chief
Justice Shaw in Barrows v. Bell, 7 Gray, 301, clearly SUPREME COURT OF THE UNITED STATES.
implies that the privilege claimed by the defendants

APRIL 7, 1884.
does not protect them. He says that a fair statement
of the proceedings, “when they have been acted upon
and decided, and made with an honest idea of giving

Bors V. PRESTON. useful information, and when the publication will not In cases coming from the Circuit Courts, this court will detend to obstruct the course of justice and interfere termine from its own inspection of the record whether with a fair trial is not a libellous publication” In the they are of the class excluded by statute from the cogEnglish chancery it is held to be a contempt of court

nizance of those courts; this although the question of to publish a pleading of one party in a newspaper, or

jurisdiction is not raised by the parties. it would seem the whole proceedings, before the mat

The constitutional grant of original jurisdiction to this court

of all cases affecting consuls does not prevent Congress ter has come on to be heard. In re Cheltenham &

from conferring original jurisdiction, in such cases, also Swansea Railway Carriage & Wagon Co., L. R., 8 Eq. upon the subordinate courts of the Union,

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