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wbile he knew it to be loaded to another's head, The American cases sustain the rule that as long as the mortand 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

have the right to take possession upon condition broken, done by a born idiot, the intent to kill could not be

if he does not exercise the right he cannot claim the rents; inferred from the act. So if the defendant is proved

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

possession by foreclosure. subtle one; but it is of the same kiud, namely, was he revdered 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 knowing 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: On August quoted; and even if we do, whether all the facts are 19, 1874, Bernard Goldsmith borrowed of James D. stated which induce him to lay down the particular Walker the sum of $100,000, and gave the latter bis rule. Although I agree with the substance of what note, dated Portland, Oreg., August 19, 1874, for the my brother Patteson 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 note was executed, lay it down to you: the only difference between us is was the owner in 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 conclusion. 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 the sole owner, and on the same day he and Teal exeneither a defense nor excuse for crime, and where it is cuted and delivered to the same grantee thre 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, oue 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 him- 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-mententiou. Such a state of drunkenness may no doubt tioned note, as appeared by a defeasance in writing, exist."

executed on the same day as the pote 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, de within his right and power rather than what is beyond clared that Hewett held the legal title to the lands conthem. ILLUSTRATIONS.

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

therein described. It then declared as follows: “Sub. A., B. and C. were the devisees of an estate for life ject to the legal title of Hewett, Teal and Goldsmith, to become one in fee on 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 presumptiou was that it was the former.(34) charges imposed thereon, until said note shall become

“It is a natural presumption," it was said in case 1, due and remain unpaid thirty days; (2) that if such de"that men intend to do that which 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,

* and 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

John 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 MORTGAGE MERE SECURITY-MORTGAGEE NOT aforesaid shall be void, and said Hewett, or his repreENTITLED TO RENTS.

sentatives or successors in trust, shall reconvey all said

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

titled thereto."

On October 18, 1876, there was due and unpaid upou TEAL Y. WALKER.

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

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

on its face to Hewett certaiu 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 joint 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 aud 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 beld the lands mentioned in the defeasance of Au- demurrer could have been reviewed on motion in argust 19, 1874. By this instrument Goldsmith and Teal rest of judgment, aud 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 conveyed August 19, 1874, and that conveyed 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 prorided as follows: “ The agreement of August 19, couveyed 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, besame 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 on 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 v. Riley, 1 Met. 117; Wilson v. rear since January 21 preceding, Hewett demanded of Shoenberger, 31 Penn. St. 295; 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 y. 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 defeasance executed on ett, was compelled to and did bring suit to enforce the that day by Hewett and Walker are to be coustrued sale of the property. All the property was sold, either together, and so construed they constitute a mortgage iu 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, evidently for the sale fell far short of paying the note, leaving a bal- convenience in registration, as the lauds lay in sev. ance due thereon of more than $50,000, which Gold- eral counties of Oregon and some of them in the Ter. smith had no means to pay.

ritory of Washington. The lands owned by Goldsmith This action was brought by Walker, the payee of the and 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 in ject 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 reabore stated, and arerred 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 lence 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 defeastute 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 aud construed of the property in the sum of $16,000, or any otber 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 dict for the plaintiff for $5,315.88, on which the court 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 IIewett, surrender the mortgaged premises to hin 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, ? 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. 3:22; Ely v. UcGuire, 2 Ohio, 2:23. 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, haying 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 y. Price, 1 Zabr. 637; Price v. Smith, I Green's Ch. N. J. 516.

The a e 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 belouging 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. 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 legal remedies to get into possession.”

In IT ilson, por 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. 35; 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 protits 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 ceive the rents he must take means to obtain the possession. Wilder y. Houghton, 1 Pick. 87; Boston Banks 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, aud even though the land, when Id, 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. III. & 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 na. ture 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 y. Rhodes, 10 Bankr. Reg. 523. The authorities cited show that as the defendant in error took no effectual steps to gain possession of the mort. gaged premises he is not entitled to the rents and

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 defendants 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 statute 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 Hauthorn, 3 Ore. 129, 133, it was declared : “Our sys. which admitted principles have been established, and tem has so changed this class of contracts tbat the the peculiar features of the proceeding which has been mortgagor retains the right of possession and the legal published. title." See also Anderson v. Baxter, 4 Oreg.105; Roberts We begin by recalling the familiar distinction beV. 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- having no interest in the matter. This distinction we cored by the mortgage, deliver to Hewett, the trustee, believe has always been recognized, both before and the possession of the mortgaged premises. Tbat 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. Jac. 432, cited infra; Oregon, as expressed in the statute just oited, 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. Pike, 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 his peWall. 357; Bank of Kentucky V. Adams Express Co., 93 tition to the clerk, and by whatever publication that C. S. 174; Marzhall 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 by 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 importauce to the public that the proceedings of

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

ceedings made public more than counterbalances the

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

may be the subject of such proceeding." See also DaJUNE, 27 1884.

vison v. Duncani, 7 El. & Bl. 229, 231; Mason v. Walter,

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

314. The chief advantage to the country which we can

discern, and that which we understand to be inteuded 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 filed, 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 no doubt is too narrow, as suggested by Lord privileged.

Chief Justice Cockburn 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 commou 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 publisbed 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 jug. tice should always act under the sense of public re- 580; Boud 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 camnot 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 contining 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, ir do not constitute 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, aud 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 reasoniug in Barber v. St. Louis Dis- It may be objected that our reasoning tacitly aspatch Co., 3 Mo. App. 377.

sumes that papers properly filed in the clerk's office We waive consideration of the tendency of a public 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, ñ 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 8. 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 which 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 Statproceedings in court, published from day to 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 neces

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 ubi 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 manuer is uni

poses of this discussion that the petition was rightly versal with us, and we may concede 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 opiniou tition, and that a fair report under these circumstances

oue way or the other upou the question. would be privileged without considering whether a

Erceptions sustained. publication of the first day's proceedings could be made actionable by relation if the subsequent oues

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 aud 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 Ruohs v. Backer, 6 Heisk. (Tenn.), 395; Ackerman v. in 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 Abb. 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 (Tenn.) 369. bankrupt-took place in a public court. Lewis v. Levy, ubi supra. See also Fleming v. Newton, 1 H. L. Cas. 363, 378.

FOREIGN CONSUL DEFENDANT--JURISDICTION. 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

BORS V. PRESTON. and decided, and made with an honest idea of giving 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 cog

nizance of those courts; this although the question of English chancery it is held to be a contempt of court

jurisdiction is not raised by the parties. to publish a pleading of one party in a newspaper, or

The constitutional grant of original jurisdiction to this court it would seem the whole proceedings, before the mat

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 C'arriage & Wayon ('o., L. R., 8 Eq. upon the subordinate courts of the Union.

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