1868 HART v. SMITH.' to bind the other creditors to give up a portion of the assets which might otherwise be distributed amongst all the creditors, it would follow that if one creditor, necessary to make up the statutory majority, were influenced by such motives, there would be an absence of a sufficient number, and the whole deed would be invalid. I cannot myself think that the legislature intended that result. I think it is probable it would be found on examination that the decision of the Lords Justices does not involve any such proposition; and if that is so, I think that it is impossible to distinguish the question raised by this replication from the point which was decided by the Lords Justices. HAYES, J. I am quite of the same opinion. On an equitable question a decision by the judges of a court of equity is hardly to be reviewed here; and the question should be submitted to the court of error and argued there. Judgment for defendant, on demurrers to the Attorney for plaintiffs: Jacob Michael. (1) Ex parte Cowen (Law Rep. 2 Ch. App. 563) was discussed in Ex parte Deacon, before Page Wood and Selwyn, WASON v. WALTER. Libel-Privileged Publication-Report of Debate in Parliament-Comments on A faithful report in a public newspaper of a debate in either house of parliament, containing matter disparaging to the character of an individual which had been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question. But the publication is privileged on the same principle as an accurate report of proceedings in a court of justice is privileged, viz., that the advantage of publicity to the community at large outweighs any private injury resulting from the publication. The plaintiff presented a petition to the House of Lords, charging a high judicial officer with having, thirty years before, made a statement false to his own knowledge, in order to deceive a committee of the House of Commons, and praying inquiry and the removal of the officer if the charge was found true; a debate ensued on the presentation of the petition, and the charge was utterly refuted :— Held, that this was a subject of great public concern on which a writer in a public newspaper had full right to comment, and the occasion was therefore so far privileged that the comments would not be actionable so long as a jury should think them honest and made in a fair spirit, and such as were justified by the circumstances as disclosed in an accurate report of the debate. FIRST Count, that Earl Russell had, at the request of the plaintiff, presented to the House of Lords a petition of the plaintiff wherein he prayed that a committee of the House might be appointed to investigate certain charges made by the plaintiff against Sir Fitzroy Kelly, and thereupon the defendant falsely and maliciously printed and published in the Times newspaper, in the form of a debate in the House of Lords, the words following:-- The count then set out verbatim the report which was given at very considerable length in the Times of the 13th of February, 1867, of a debate in the House of Lords on the previous evening. The following is the substance of the report:-Earl Russell presented a petition from Mr. Wason (the plaintiff), stating (inter alia), that Sir Fitzroy Kelly, lately appointed Lord Chief Baron, did in the year 1835, when a barrister, pledge his honour as a gentleman to the truth of that which he knew to be false, for the purpose of deceiving an election committee of the House of Commons, and praying the appointment of a committee to investigate the charges, and if the committee should find them proved, that the House would concur with the other house of parliament 1868 Nov. 25. 1868 WASON v. WALTER. in praying the Queen that Sir Fitzroy Kelly might be relieved from his judicial position. Earl Russell stated that he should not ask the House to assent to the prayer of the petition, as he did not concur in it; Mr. Wason had sent him (Earl Russell) copies of letters he had written to Lord Derby, the prime minister, and Mr. Walpole, home secretary, in which he specified that the false statement with which he charged Sir F. Kelly was, that “he, Mr. Kelly, was not acquainted personally with a Mr. Pilgrim," whereas Sir F. Kelly denied ever having made such a statement, as he knew Pilgrim very well as a clerk in a solicitor's office, and the shorthand notes of Mr. Kelly's speech to the committee contained no such statement or anything like it. "It therefore appears to me," said Earl Russell," that Mr. Wason's statement must be regarded as a fabrication." The Lord Chancellor (Lord Chelmsford) then went more in detail into the charges, and gave the same refutation of them, in stronger language, concluding "this petition will now lie on the table a perpetual record of his (the plaintiff's) falsehood and malignity." The Earl of Derby said that he thought, after the debate and refutation, "We shall only be doing our duty and supporting our own dignity and character by refusing to allow so slanderous, calumnious, and unfounded a statement to lie on the table." The second count charged as a libel and set out verbatim the leading article in the same issue of the Times upon the above debate; the article, after giving the facts and setting out the petition, proceeded: "This was the petition which Lord Russell thought fit to present to the House of Lords last evening, and in a subsequent speech, after the futility and malignity of its charges had been exposed by the Lord Chancellor, he defended the course he had adopted . . . but having satisfied himself that the allegations of the petition were untrue, he would not support its prayer or found any motion on its terms. .. No man, whatever his position, is bound to make himself the instrument for the circulation of calumnies. Yet, believing the charges to be false, Lord Russell takes charge of the petition." ... Plea: Not guilty. ... At the trial before Cockburn, C.J., at the sittings in London after Michaelmas Term, 1867, the publication having been proved, the plaintiff was examined and admitted that he was mistaken in making the particular charge of falsehood against Sir F. Kelly, specified in the letter to Lord Derby. On behalf of the defendant, who was admitted to be a proprietor of the Times, it was proved that the libel charged in the first count was an accurate report of the debate. The Lord Chief Justice told the jury, that if they were satisfied that the matter charged as a libel in the first count was a faithful and correct report of the proceedings in the House of Lords, and of the speeches delivered on the occasion, he directed them in point of law that it was a privileged publication, and one which was not the subject of a civil action, and they should find for the defendant on that count. As to the second count, the Chief Justice said, that the matter of the debate, viz., a charge against a high judicial officer was a matter of the deepest public concern, upon which a writer in a public newspaper was perfectly justified in making such comments as the circumstances, as disclosed in the report of the debate, warranted, and which a jury should be of opinion were fair and reasonable with reference to the subject matter of the discussion; and the question for them was, whether this privilege had been honestly and fairly exercised, and if they thought there had been no excess beyond what the occasion justified, they would find for the defendant. The jury found on both counts for the defendant. A rule was afterwards obtained for a new trial, for misdirection: First, that the Chief Justice directed the jury that the publication of the libel charged in the first count was privileged, if they should find it to be a true and faithful report of the debate in the House of Lords, and that they should therefore find for the defendant. Secondly, that the Chief Justice directed the jury to find for the defendant, if they thought that the comments contained in the libel charged in the second count on the conduct of the plaintiff in presenting the petition to the House of Lords, and on the debate in the House of Lords, were fair comments and within the limits of fair criticism. Nov. 19. Sir J. B. Karslake, Q.C. (A. G.), J. D. Coleridge, Q.C., 1868 WASON V. WALTER. and C. W. Wood, shewed cause. The first and principal question |