§ 229. Independently of any statute, certainly in the State of New York, and probably in every other State, "the publication of the proceedings upon a judicial trial, fairly reported and without express malice, is not actionable." The like rule obtains in England, but as both who has no jurisdiction, by reason of his mistake as to the law, and not merely a mistake as to the facts, is liable for his acts. (Houlden v. Smith, 14 Q. B. 841; Calder v. Halket, 3 Moore Pri. C. C. 28; Kirby v. Simpson, 10 Ex. [H. & G.] 358; Gelen v. Hall, 2 H. & N. 379.) In England there are several statutes protecting magistrates in cases where they act without jurisdiction. 1 Edsall v. Brooks, 17 Abb. Prac. R. 221; 26 How. Prac. R. 426. In New York, it is provided by Code Civ. Pro., 1907: An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a newspaper for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceedings, without proving actual malice in making the report. § 1908. The last section does not apply to a libel contained in the heading of the report, or in any other matter added by any person concerned in the publication, or in the report of anything said or done at the time and place of the public and official proceedings which was not a part thereof. This is in effect a re-enactment of the law of 1854, ch. 130. In England a private person is as fully protected in publishing a report of judicial proceedings as a newspaper. (Mellissich v. Lloyds, 25 Weekly Rep. 353.) Where one not a newspaper reporter published a fair report of a judicial trial, but the jury found the publication was made not to inform the public but to injure or annoy plaintiff, it was held there was privilege. (Stevens v. Sampson, 5 Ex. Div. 120; and Salmon v. Isaacs, 20 Law Times, N. S. 885.) In Hart v. Townsend, 67 How. Prac. Rep. 88, the alleged libel was a communication by a newspaper correspondent, and no the judge at the trial ruled that if the communication was made in good faith and honest belief in its truth it was privileged. On the question of mistake in reporting the contents of a legal document, it is error to charge that such care as reporters usually use is the standard by which to determine the newspaper's liability. Reporters, like every one else, must use such degree of care as is reasonably sure to prevent mistake. (Park v. Detroit Free Press Co. 40 No. West. Rep. 731.) A publication concerning attorneys' conduct of a case, reflecting upon their honesty, is not in the nature of a report of a proceeding, and is not privileged. (Ludwig v. Cramer, 53 Wis. 103.) An ex parte affidavit to procure a search warrant held within the statute. (Ackerman v. Jones, 37 Superior Ct. Rep. [5 Jones & S.] 42.) A report of a proceeding before a grand jury was held not within the statute. (McCabe v. Cauldwell, 18 Abb. Prac. Rep. 377.) The publication of a judgment, record, or the transcript of a judgment, is privileged. (Cosgrave v. The Trade Auxiliary Co. 8 Ir. Rep. Com. Law, 349; and see Jones v. McGovern, I Id. 681.) But such a publication after a judgment has been satisfied, is not justified by showing that such a judgment once existed. (McNally v. Oldham, 8 Ir. Jur. N. S. 86.) Plaintiff, a hatter, against whom judgment had been recovered, the judgment remained unsatisfied pending an appeal; the appeal was subsequently abandoned, and the judgment satisfied, but the fact of satisfaction was not entered upon the register Defendants were publishers of a bi-monthly trade newspaper called The Hatters' Gazette. In a column headed "The Gazette," ap there and in New York some limitations are imposed upon the rule, it is necessary, in order to show in what these limitations consist, to examine somewhat in detail the authorities upon the subject. The initial principle seems to be that the public good requires that the proceedings in courts of justice should be conducted openly. Accordingly it is in New York provided by statute that "the sittings of every court within this State shall be public, and every citizen may freely attend the same."1 Although there is no such law in England, it is the custom there to hold the courts with open doors. And it is said to be a rule of law that "every one is supposed or presumed to be cognizant of the proceedings in the courts of justice, " and hence "it is of great consequence that the public should know what takes place in the courts." A publication of the proceedings of a court "only extends peared a list of judgments in which the name of plaintiff, with the judgment against him, was inserted. Plaintiff brought action for libel, alleging by innuendo that the insertion of his name in that column implied that the judgment remained unsatisfied, and that he was unworthy of credit. Defendants denied the innuendo. Held that the publication was capable of being defamatory, and the jury found a verdict for the plaintiff. On appeal, held that the meaning of the allegation was properly left for the jury, and that the jury having found such to be its meaning, together with the fact that the statement was not true, the statement as published was a libel. (Williams v. Smith, 22 Q. B. D. 134; 39 Alb. L. J. 247.) A judgment was recovered against C. E. Woodruff. Defendant by mistake published that it had been recovered against plaintiff, C. T. Woodruff. Held, C. T. Woodruff could not recover unless upon proof of special damages. (Woodruff v. The Bradstreet Co. 35 Hun, 16.) See note 3, p. 242, ante. 1 2 Rev. Stat. 274, § 1. "No law insures the publicity of the courts of justice, either in England or the United States." (Lieber on Civil Liberty, 134. ed. of 1859.) 2 The Divorce Act (20 & 21 Vict. ch. 85) provides for hearing certain cases in private, and (11 & 12 Vict. ch. 42) permits justices of the peace to hear certain cases in private. În Andrews v. Raeburn, 9 Ch. App. 522, it was held that no hearing of a cause in the High Court of Justice would be had unless by consent of both parties, except where lunatics or wards of court were concerned. In Nagle-Gillman v. Christopher, 4 Ch. Div. 173, held there was no power to hear cases in private, even by consent, except where lunatics and wards were concerned, and cases where the whole object of the suit would be defeated by a public trial. By 11 & 12 Vict. ch. 43, places where proceedings of a summary character are carried on shall be deemed an open court. 3 Willard's Eq. Juris. 251. Campbell, Ch. J., Hearne v. Stowell, 12 Adol. & El. 719; 4 Per. & D. 696. that publicity which is so important a feature of the administration of the law in England, and thus enables to be witnesses of it not merely the few whom the court can hold, but the thousands who can read the report,"1 and "we ought to make as wide as possible the right of the public to know what takes place in a court of justice." It is conceded that some "inconveniences and mischief" result, or may result, from the publication of the proceedings in courts of justice, but "the balance of public benefit from the publicity is great." "Those who are present hear all [that takes place], relevant or irrelevant, and those who are absent may have all that is said reported to them. When once you establish that a court is a public court, a fair and bona fide report of all that takes place there may be published. For being a true account of what took place in a court of justice, which is open to all the world, the publication of it [cannot be] unlawful." But, "it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is under all circumstances and with whatever motive published, justifiable; but that doctrine must be taken with some grains of allowance." as a judicial proceeding is privileged on principles of public convenience, the privilege is limited in respect to the subject-matter of the report, and as to the manner of the reporting, and the "condition necessarily annexed to the immunity is, that the proceeding be fairly, impartially and correctly reported, and even in that case it will be for the 1 Wilde, B., Popham v. Pickburn, 7 Hurl. & N. 891; see Lewis v. Levy, E. B. & E. 537; Usill v. Hales, L. R. 3 C. P. D. 319. On its being remarked to Lord Mansfield, that few persons attended the courts merely to watch the proceedings, he replied: "No matter, we sit every day in the newspapers. 2 Pollock, Ch. B., Ryalls v. Leader, Law Rep. 1 Ex. 298. For court to consider whether it was lawful to publish it."1 To entitle a publication to the privilege of § 1907, Code of N. Y. Civ. Pro., as a fair and true report of a judicial proceeding, the publication must be fair and not garbled so as to produce misrepresentations, and must not, by suppression of some portion of the proceedings, leave a false or unjust impression. It need not be a verbatim report, nor embrace the entire proceedings, but may consist of condensed or abridged statements thereof." "Matters may appear in a court of justice that may have so immoral a tendency, or be so injurious to the character of an individ ual that their publication would not be tolerated." And therefore it is said, "There is no privilege when the subjectmatter is blasphemous or defamatory of an individual." Thus where on the trial of Carlile for publishing Paine's Age of Reason, the defendant read the whole of the book to the jury, and afterwards his wife published a full report of the trial, containing an entire copy of the Age of Reason as read to the jury; for this publication a criminal information was granted against Mrs. Carlile, the court observing that, although as a general proposition it was certainly lawful to publish the proceedings of courts of justice, yet it must be taken with this qualification, that what is contained in the publication must neither be defamatory of an individual, tending to excite disaffection, nor calculated to offend the morals 1 Littledale, J., Flint v. Pike, 4 B. & C. 473; I Starkie on Slander, 263. 2 Salisbury v. Union & Advertiser Co. 45 Hun, 120. In this case it was also held that the heading of a publication may be privileged, even though not necessarily purporting to be part of a judicial proceeding, and although it does not necessarily appear that it was so in fact, as where it consists of a question which, if standing alone, might be construed as libelous, but which, when taken with what follows, of the people. Although in the course of a trial it may become necessary for the purposes of justice to hear or read matter of defamatory or of immoral tendency, yet it is not competent to any persons, under the pretense of publishing that trial, to re-utter or circulate such matter. It is observed in the Sixth Report of the English Criminal Law Commissioners, that these qualifications destroy all the supposed privilege. Our explanation is this: Truth is not a defense to a criminal prosecution for libel, and therefore where a report of a trial contains blasphemous, indecent, or defamatory matter, it is not the less the subject of a criminal prosecution because it is a fair or true report of a judicial proceeding. In a subsequent case," Maule, J., said: "I think it is impossible at this day to say that a fair account of proceedings in a court of justice, not being ex parte, but on the hearing of both sides, is not, generally speaking, a justifiable publication. I do not lay it down as a universal proposition; but, as a general rule, it may be assumed that the publication of a fair account of what passes in a court of justice, not ex parte, is justifiable unless there is something to take it out of that rule." "No case has decided that a report of proceedings in a court of justice implicating the reputation of a third person is under any (all) circumstances privileged." "There is no dictum to be met with in the books, that a man, under the pretense of publishing the proceedings of a court of justice, may discolor and garble the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned." But we ought to protect a fair and bona fide statement of 1 Rex v. Carlile, 3 B. & Ald. 167. The publication of a fair report of obscene matter is not privileged. (Steele v. Brannan, Law Rep. 7 C. P. 268.) 2 Hoare v. Silverlock, 9 C. B. 20. Ryalls v. Leader, Law Rep. 1 Ex. 298; and see Pittock v. O'Neill, 63 Penn. St. Rep. 253. 4 Spencer, J., Thomas v. Crosswell, 7 Johns. 264; and see Rish Allah Bey v. Whitehurst, 18 Law Times, N. S. 615. |