while he knew it to be loaded to another's head, aud fire it off, without intending to kill him; but even then the state of mind of the party is most material to be considered. For instance, if such an act were to be done by a born idiot, the intent to kill could not be inferred from the act. So if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged? The case cited is one of great authority, from the eminence of the judge who decided it. The only difficulty is, in knowing whether we get the exact words of the judge from the case quoted; and even if we do, whether all the facts are stated which induce him to lay down the particular rule. Although I agree with the substance of what my brother Patteson is reported to have said, I am not so clear (33) as to the propriety of adopting the very words. If he said that the jury could not find the intent without being satisfied it existed, I shall so lay it down to you: the only difference between us is as to the amount and nature of the proof sufficient to justify you in coming to such a conclusion. Under such circumstances as these when the act is unambiguous, if the defendant was sober, I should have no difficulty in directing you that he had the intent to take away life, where if death had ensued the crime would have been murder. Drunkenness is ordinarily neither a defense nor excuse for crime, and where it is available as a partial answer to a charge it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable unless the intoxication was such as to prevent him from restraining himself from committing the action in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist."

RULE V. A person is presumed to intend to do what is within his right and power rather than what is beyond them.

ILLUSTRATIONS.

A., B. and C. were the devisees of an estate for life to become one in fee on the death of D. They made a division of the estate. The question was whether they had divided the life estate or the estate in fee. Held, the presumption was that it was the former. (34)

"It is a natural presumption," it was said in case 1, "that men intend to do that which they have a right and power to do rather than what is beyond their right or power. * **The division was of course meant to be a complete one of whatever was divided unless the contrary appears. The life estate could have been completely divided at that time, nothing else being necessary to render it perfect, but the remainder could not have been so divided at that time, for that division could not have been completed till the death of D. * * * This presumption must prevail until rebutted by affirmative contrary evidence."

ST. LOUIS, Mo.

JOHN D. LAWSON.

The American cases sustain the rule that as 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 have 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 them he must take means to obtain possession by foreclosure.

IN

N error to the Circuit Court of the United States for the District of Oregon.

This was an action at law brought by Walker, the defendant in error, against Teal, the plaintiff in error. The record disclosed the following facts: On August 19, 1874, Bernard Goldsmith borrowed of James D. Walker the sum of $100,000, and gave the latter his note, dated Portland, Oreg., August 19, 1874, for the payment to Walker or his order two years after date of the sum borrowed, with interest payable monthly at the rate of one per cent per month from date until paid. Goldsmith at the time the note was executed, was the owner in fee of certain lands in the State of Oregon and in the Territory of Washington, and he and Joseph Teal were the joint owners and tenants in common of certain other lands in Oregon. On August 19, 1874, Goldsmith conveyed to one Henry Hewett, by four several deeds, absolute on their face, the lands in Oregon and in Washington Territory of which he was the sole owner, and on the same day he and Teal executed and delivered to the same grantee three several deeds, absolute on their face, for the lands which they jointly owned as tenants in common, one being for lands in Linn county, another for contiguous lands in Polk and Benton counties, and the third for lands in Clackamas county, all in the State of Oregon. These deeds were intended as a security for the above-mentioned note, as appeared by a defeasance in writing, executed on the same day as the note by Goldsmith, Teal, Hewett and Walker. This instrument, after reciting the execution of the note above mentioned, declared that Hewett held the legal title to the lands conveyed to him as aforesaid, in trust and for the uses therein described. It then declared as follows: "Sub. ject to the legal title of Hewett, Teal and Goldsmith, or Goldsmith alone, shall (1) retain possession of the lands, and take and have, without account, the issues and profits thereof, they paying all taxes and public charges imposed thereon, until said note shall become due and remain unpaid thirty days; (2) that if such default is made in the payment of said note, Goldsmith and Teal will and shall, on demand, peacefully surrender to Hewitt' the possession of said property, who 'may and shall proceed to take possession' of the same, 'and on thirty days' notice in writing to Teal and Goldsmith * * * * requiring them to pay said debt, * * ** * and on their failure so to pay shall sell the some at public auction on not more than thirty days' notice,' or sufficient thereof to pay the debt and charges."

The instrument further declared "that if the aboverecited promissory note, and the interest thereon, and all the taxes, charges and assessments on said land be duly paid by said Goldsmith, or for him, then the deeds

ENTITLED TO RENTS.

SUPREME COURT OF THE UNITED STATES,

APRIL 7, 1884.

TEAL V. WALKER.

A deed absolute on its face, but intended as a security for the payment of money, is a mortgage even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt.

In R. v. Cruse, 8 C. & P. 546.

v. Morris, 29 Ga. 375 (1859).

sentatives or successors in trust, shall reconvey all said lands, and every part thereof, to said Teal and Goldsmith, or said Goldsmith, or their representatives, entitled thereto."

On October 18, 1876, there was due and unpaid upou the note made by and delivered by Goldsmith to Walker the sum of $96,750. To secure an extension of time of one year from that date for the payment of the note, Goldsmith and Teal agreed to give further security for its payment.

Thereupon Goldsmith conveyed by a deed absolute on its face to Hewett certain lots in the city of Port

land, of which he was the owner, and Goldsmith and Teal by a like deed conveyed to Hewett certain lots in Portland and certain lands in Linn county, Oregon, of which they were joint owners and tenants in common. On the same day, October 18, 1876, Walker, Hewett, Goldsmith and Teal executed another defeasance, in which, after reciting the conveyances by Goldsmith, and Goldsmith and Teal, above mentioned, declared that Hewett held the legal title to lands so conveyed in trust, and to the same uses and purposes for which he held the lands mentioned in the defeasance of August 19, 1874. By this instrument Goldsmith and Teal undertook and agreed that Goldsmith should pay promptly one-twelfth of ten per cent per annum of the interest of the note every month, and should pay the principal and the residue of the interest at the end of the year. It was further stipulated between the parties that if default was made in the payment of the monthly installments of interest the principal should immediately become due, and all the property, both that conveyed August 19, 1874, and that conveyed October 18, 1876, should be sold for the payment thereof, as by law and the agreement of August 19, 1874, was provided. The instrument of October 18, 1876, further provided as follows: "The agreement of August 19, 1874, is not annulled, vacated or set aside by the execution of this agreement, excepting in so far as the same may conflict with this agreement; in all other respects the two instruments are to be taken and construed together."

Interest was paid on the note made by Goldsmith to the plaintiff up to January 21, 1877, but none after that date. In April, 1877, Goldsmith conveyed to Teal all his estate in the lands which he had conveyed in trust to Hewett by the deeds of August 19, 1874, and October 18, 1878, and put Teal in possession thereof.

On July 6, 1877, the interest on the note being in arrear since January 21 preceding, Hewett demanded of Teal the possession of all the property conveyed by said deeds. He refused to yield possession, and held the lots in the city of Portland until November 30, 1878, and the farm lands until some time in the same month and year.

Walker, by reason of Hewett's refusal to surrender possession of the property conveyed in trust to Hewett, was compelled to and did bring suit to enforce the sale of the property. All the property was sold, either in accordance with the terms of the defeasances above mentioned or by order of court, and the proceeds of the sale fell far short of paying the note, leaving a balance due thereon of more than $50,000, which Goldsmith had no means to pay.

This action was brought by Walker, the payee of the note, against Teal, to recover the damages which he claimed he had sustained by the refusal of Teal to surrender possession of the property of which Goldsmith had been the owner, or which he had owned jointly with Teal, and which had been conveyed to Hewett in trust as aforesaid. The complaint recited the facts above stated, and averred that by reason of the refusal of Teal to surrender possession of the property to Hewett, Walker had been damaged in the sum of $16,000, for which sum the complainants demanded judgment.

Teal filed a demurrer to the complaint on the ground that it did not state facts sufficient to constibute a cause of action. The demurrer was overruled, with leave to Teal to answer. He answered, and among other things, denied that Walker had been damaged by the refusal of Teal to deliver possession of the property in the sum of $16,000, or any other

Bum.

The case, having been put at issue by the filing of a replication, was tried by a jury, who returned a verdict for the plaintiff for $5,345.88, on which the court

rendered judgment. To reverse that judgment Teal prosecuted this writ of error.

John H. Mitchell, for plaintiff in error.

A. H. Garland, for defendant in error.

WOODS, J. The writ of error is not taken to reverse the judgment of the court upon the demurrer to the complaint, for that was not a final judgment, but to reverse the judgment rendered upon the verdict of the jury. The error, if it be an error, of overruling the demurrer could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict. The question therefore whether the complaint in this case states facts sufficient to constitute a cause of action is open for consideration.

The plaintiff in error insists that Goldsmith, having conveyed to him all his estate in the lauds described in the deed to Hewett, the latter cannot recover of him damages, that is to say, the rents and profits, because he refused to deliver to him the premises. We are of opinion that this contention is well founded and that neither Goldsmith nor the plaintiff in error was liable to account to Hewett or Walker for the rents and profits of the premises.

A deed absolute upon its face, but intended as a security for the payment of money, is a mortgage even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt. Nugent v. Riley, 1 Met. 117; Wilson v. Shoenberger, 31 Penn. St. 295; Dow v. Chamberlain, 5 McL. 281; Bayley v. Bailey, Gray, 505; Lane v. Shears, 1 Wend. 433; Friedley v. Hamilton, 17 S. & R. 70; Shaw v. Erskine, 43 Me. 371.

It is clear upon these authorities that the three deeds executed by Goldsmith and Teal jointly, and the several deeds executed by Goldsmith alone, to Hewett, on August 19, 1874, and the defeasance executed on that day by Hewett and Walker are to be construed together, and so construed they constitute a mortgage given to secure a debt. The lands owned by Goldsmith were conveyed by several deeds, evidently for convenience in registration, as the lands lay in several counties of Oregon and some of them in the Territory of Washington. The lands owned by Goldsmith and Teal jointly also lay in several counties, and were conveyed by separate deeds for the same reason. The execution of all the deeds and the execution of the defeasance which applied to all the deeds, occurred on the same day, and was clearly one transaction, the object of which was to secure the note for $100,000 made and delivered by Goldsmith to Walker. The same remarks apply to the second set of deeds executed by Goldsmith and Goldsmith and Teal on October 18, 1876, and the defeasance executed by Hewett and Walker on the same day. In fact all the deeds and the two defeasances might without violence be regarded in equity as two mortgages executed at different times with one and the same defeasance; for the defeasance last executed provides that it shall not have the effect to annul, vacate or set aside the first except in so far as the two conflict; in all other respects the two were to be taken and construed together. We are therefore to apply the same rules to the questions arising in this case as if we had to deal with mortgages executed in the ordinary form.

The decision of the question raised by the demurrer to the complaint is not affected by the stipulation con

tained in the defeasance of August 19, 1874, that Goldsmith and Teal should, on default made in the payment of the principal of Goldsmith's note, and on the demand of Hewett, 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; Howard v. Houghton, 64 Me. 445; Den ex dem. Hart v. Stockton, 7 Halst. 322; Ely v. McGuire, 2 Ohio, 223, vols. 1 and 2 (2d 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 notice of his mortgage to a tenant in possession holding under 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, and no 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. Mayo v. Shattuck, 14 Pick. 533; Watts 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 ae of Moss v. Gallimore has never been held to apply to 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 v. 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 Hardwicke: "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. 244: "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 mortgagee ought to take the egal 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 have 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 possession. Wilder v. Houghton, 1 Pick. 87; Boston Bank v. Reed, 8 id. 459; Noyes v. Rich, 52 Me. 115.

In Hughes v. Edwards, 9 Wheat. 500, it was held that a mortgagor was not accountable to the mortgagee for the rents 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. Ill. & 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, rents 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 entitled 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 had a receiver appointed. The court said in delivering judgment in this case: "A mortgager of real estate is not liable for rent while in possession. He contracts to pay interest, not rent." So in Kountze 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 the 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 defendant in error took no effectual steps to gain possession of the mortgaged premises he is not entitled to the rents and

profits while they were occupied by the owner of the equity of redemption.

The case against the right of the defendant in error to recover in this case the rents and profits received by the owner of the equity of redemption is strengthened by sec. 323, ch. 4, title 1, Gen. Laws of Oregon, 1843-1872, which declares that "a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law."

This provision of the statute cuts up by the roots the doctrine of Moss v. Gallimore, ubi supra, and gives effect to the view of the American courts of equity that a mortgage is a mere security for a debt, and establishes absolutely the rule that the mortgagee is not entitled to the rents and profits until he gets possession under a decree of foreclosure. For if a mortgage is not a conveyance, and the mortgagee is not entitled to possession, his claim to the rents is without support. This is recognized by the Supreme Court of Oregon as the effect of a mortgage in that State. In Besser v. Hawthorn, 3 Ore. 129, 133, it was declared: "Our system has so changed this class of contracts that the mortgagor retains the right of possession and the legal title." See also Anderson v. Baxter, 4 Oreg. 105; Roberts v. Sutherlin, id. 219.

The case of the defendant in error cannot be aided by the stipulation in the defeasance of August 19, 1874, exacted by the mortgagee, that Goldsmith and Teal would, upon the default in the payment of the note secured by the mortgage, deliver to Hewett, the trustee, the possession of the mortgaged premises. That con. tract was contrary to the public policy of the State of Oregon, as expressed in the statute just cited, and was not binding on the mortgagor or his vendee, and although not expressly prohibited by law, yet like all contracts opposed to the public policy of the State, it cannot be enforced. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Marshall v. Balt. & Ohio R. Co., 16 How. 314: Meguire v. Corwine, 101 U. S. 108.

In any view of the case we are of opinion that the defendant in error was not entitled to receive the rents sued for in this action. As this conclusion takes away the foundation of the suit it is unnecessary to notice other assignments of error.

The judgment of the Circuit Court is reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.

LIBEL-PUBLICATION BY NEWSPAPER OF PAPERS FILED IN COURT.

MASSACHUSETTS SUPREME JUDICIAL COURT, JUNE, 27 1884.

COWLEY V. PULSIFER.

On proceedings for the disbarment of an attorney the petition, among others, included allegations, which unless justified, would have been actionable. The petition was filed, but it did not appear that it had ever been presented to the court or docketed.

In an action against defendant, the owner of a newspaper, for libel in publishing a report of the contents of the petition, held, that the report, though fair and correct, was not privileged.

James F. Pickering and Charles Crowley, for plaintiff. Solomon Lincoln, for defendants.

HOLMES, J. This is an action against the owners and publishers of the Boston Daily Herald for a libel published in that newspaper. The alleged libel was a report of the contents of a petition for the removal of

the plaintiff 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 alone. They do not set up the truth of the charges in the petition, 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; it 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 the 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 reason upon which admitted principles have been established, and the peculiar features of the proceeding which has been published.

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 having no interest in the matter. This distinction we believe has always been recognized, both before and since. Lake v. King, 1 Saund. 120, 133; S. C., 1 Lev. 240; Webster v. Dobniet, Cro. Jac. 432, cited infra; Rex v. Creery, 1 M. & S. 273, 280; McGregor v. Thoraite, 3 B. & C. 24, 31, 35; Flind v. Pike, 4 id. 473, 481; Com. 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.

The privilege set up by the defendant 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 proceeding." See also Davison v. Duncan, 7 El. & Bl. 229, 231; Mason v. Walter, L. R., 4 Q. B. 73, 88; Com. v. Blanding, 3 Pick. 304, 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. Patterson, J., in Stockdale v. Howard, 9 Ad. & E. 1, 212.

This no doubt is too narrow, as suggested by Lord Chief Justice Cockburn in Wason v. Walter, L. R., 4 Q. B. 73, but the privilege and the access of the public to the courts stand in reason upon common ground. Lewis v. Levy, El. Bl. & El. 537, 558. It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer jus

tice 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. 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, 20 N. Y. 20, 27; Lewis v. Levy, ubi supra, and especially the reasoning in Barber v. St. Louis Dispatch Co., 3 Mo. App. 377.

are,

We waive consideration of the tendency of a publication like the present to create prejudice and interfere with a fair trial. Barrows v. Bell, 7 Gray, 301, 312, 316; In re Cheltenham & Swansea Railway Carriage and Wagon Co., L. R., 8 Eq. 580; Tichborne v. Mostyn, L. R., 7 Eq. 55 n.; Read & Higginson's Case, 2 Atk. 469; S. C., nom. Roach v. Garran, 2 Dick. 794. Neither shall we discuss the question what limitations there 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 it is not necessary to wait until a trial is completed. Lewis v. Levy, ubi supra. See Usell 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 these 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. This distinction, although not established by them, derives an indirect sanction from the cases which have turned on the question whether the proceedings-for instance, the examination of a bankrupt-took place in a public court. Lewis v. Levy, ubi supra. See also Fleming v. Newton, 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 implies that the privilege claimed by the defendants 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 useful information, and when the publication will not tend to obstruct the course of justice and interfere with a fair trial is not a libellous publication" In the English chancery it is held to be a contempt of court to publish a pleading of one party in a newspaper, or it would seem the whole proceedings, before the matter has come on to be heard. In re Cheltenham & Swansea Railway Carriage & Wagon Co., L. R., 8 Eq.

580; Bowd v. Russell, 46 L. J. (N. S.) Ch. 414, 416; Cann v. Cann, 3 Hare, 333; S. C., 2 Ves. Sr. 520; 2 Dechew, 792. A contempt of court cannot be privileged, and we see no reason to doubt that an action could be maintained for such a publication, nor do we see any reason for confining the liability to proceedings in equity. Bowden v. Russell, ubi supra. "If one exhibit a scandalous bill, if the court have jurisdiction of such matters, an action lies not; otherwise it is, if the court have not jurisdiction, or having it the party publish his bill abroad, the said bill being false." Weston v. Dobinet, Cro. Jac. 432. See Delegal v. Highley; Barbee v. St. Louis Dispatch Co., ubi supra. We have placed only a qualified reliance on the cases cited, because some of them were decided before the latest developments of the law of libel, and those on the question of contempt have been placed on grounds not perhaps convincing with regard to the present question, but they lend strong support to our decision.

It may be objected that our reasoning tacitly as sumes 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. A different conclusion might be drawn from a hasty reading of the Public Statutes, ch. 37, sec. 13, but the county records or files which are there ordered to be opened for public inspection and examination, and of which any person may take copies, are the records and files of the county, not of the courts of the Commonwealth within and for that county. We see no reason to suppose that the Public or General Statutes were intended entirely to change the scope of the original enactments which they embody. Those were the acts of 1851, ch. 161, and 1857, ch. 84, both of which will be seen on inspection to have no reference to the records of the courts. We have assumed for the purposes of this discussion that the petition was rightly filed, and that the defendants were entitled to any benefit which they might derive from that circumstance. But we do not mean to intimate any opinion one way or the other upon the question.

Exceptions sustained.

NOTE.-See 33 Am. Rep. 403; 19 id. 542; 31 Eng. R. 574. Newspaper reports of proceedings in courts of justice, if substantially correct and not garbled or partial, and made bona fide and without malice, are privileged. McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; Ruohs v. Backer, 6 Heisk. (Tenn.), 395; Ackerman v. Jones, 37 N. Y. Sup. Ct. 42; Edsall v. Brooks, 26 How. Pr. 426; 17 Abb. Pr. 221; 1 Rob. 29; Sanford v. Bennett, 24 N. Y. 20. See Saunders v. Baxter, 6 Heisk. (Tenn.) 369.

FOREIGN CONSUL DEFENDANT-JURISDICTION.

SUPREME COURT OF THE UNITED STATES, APRIL 7, 1884.

BORS V. PRESTON.

In cases coming from the Circuit Courts, this court will determine from its own inspection of the record whether they are of the class excluded by statute from the cognizance of those courts; this although the question of jurisdiction is not raised by the parties.

The constitutional grant of original jurisdiction to this court of all cases affecting consuls does not prevent Congress from conferring original jurisdiction, in such cases, also upon the subordinate courts of the Union.