in effect testamentary,-as by reserving to himself an interest for life. In the course of the argument in that case, it was said, that, according to the principles established by Randall v. Willis, 5 Ves. 262, (a) Jones v. Martin, 3 Anstr. 882, 5 Ves. 266, n., and Lewis v. Madocks, 8 Ves. 150, "a father under such a covenant, though he has the liberty of disposition during his life, cannot stipulate for his own benefit, and, reserving an interest for his own life, make an unequal distribution, in effect, though not in form, testamentary. If he will be partial, he must be partial against himself." But Sir W. GRANT, M. R., said: "Robert Hickes having covenanted that his eldest daughter and her first husband, and her children by him, should, at the death of Robert Hickes, have a full moiety of all the real and personal estate of which he should die seised or possessed, it is clear that he could not defeat the effect of that covenant by any testamentary act. The question is, whether he could defeat it by acts which, though not strictly testamentary, were not to take effect until after his death. It is evident that such a covenant has little value, if its effect is to depend on the form of the instrument. Against a diminution of his property by absolute gift during his lifetime, his own interest and convenience form a pretty good security: not so, where, without any diminution of his own enjoyment, he exercises a mere *posthumous bounty, though by an irrevocable *16] instrument. It seems to me that the spirit of such a covenant requires that every disposition should be excluded, which is in its effect testamentary, though not such in point of form." Here, the father never intended to put it in his daughter's power to give the property to her husband. [WILLIAMS, J.-Leaving the share to her child, would not, according to Mr. Brown's argument, satisfy the covenant.] The language of the second branch of Laughter's case is precisely like that of this covenant: and that part of the case has never been found fault with. The same account of the reasons for the decision is given in Croke and in Moore, as that given by Sir Edward COKE: and it is undoubtedly good law. Where there is an absolute option, it cannot be taken away by the act of God. [WILLIAMS, J.-Laughter's case is cited in Sheppard's Touchstone without any remark.] At p. 173 of that book, it is said, that, "if one covenant to leave a wood in the same plight as he finds it, and he cut down trees; in this case, the covenant is broken presently; for, it is now become impossible to be performed, by his own act but, if in this case, some of the trees be blown down with the wind, or the like, by this [act of God] the covenant is not broken; for, it is now become impossible to be done, by the act of God, and in this case the covenantor is not bound to supply it." Again, at p. 382, "When the condition of an obligation is, to do [one of] two (a) And see the American cases, Garner v. Garner's executor, 1 Desaus' Chanc. Rep. 437 ; Tabb v. Archer, 3 Hen. & Munf. 399; Roane's executor v. Hern, 1 Wash. 47; Fleming v. Willis, 2 Call. 5. things by a day, and, at the time of making the obligation, both of them are possible, but after, and before the time when the same are to be done, one of the things is become impossible, by the act of God, or by the sole act and laches of the obligee himself; in this case, the obligor is not bound to do the other thing that is possible, but is discharged of the whole obligation. But, if, at the time of the making of the obligation, one of the things is, and the *other of the things is not [*17 possible to be done, he must perform that which is possible. And if, in the first case, one of the things become impossible afterwards by the act of the obligor, or a stranger, the obligor must see that he do the other thing, at his peril. And, when the condition of an obligation is, to do one single thing, which afterwards, before the time when it is to be done, doth become impossible to be done in all or in part, the obligation is wholly discharged; and yet, if it be possible to be done in any part, it shall be performed as near to the condition as may be." Studholmes v. Mandell is also reported in Nelson's edition of Lutwyche, where the learned editor, speaking of Laughter's case, says: (a) ""Tis true, Justice CROKE tells us that GAWDY held the bond was not discharged, but that the husband ought to purchase lands for the heirs of the wife, because he was obliged to do so by the condition, and had time, during his life, to perform it; and that the word heirs in that place, was not a word of limitation, but of purchase: but either he or my Lord COKE must be mistaken; for, COKE tells us judgment was given for the defendant, by PоPHAM, C. J., and the whole court,-which could not be, if GAWDY, who was then a judge of that court, dissented. However, we having the concurrent testimony of my Lord COKE, CROKE, and MOORE, of whom two were afterwards judges, and one of them of counsel in the cause, I think we are rather to believe what they have written, than what the chief justice had by tradition. But I have this to object against that opinion of GAWDY, that I take it to be of no great weight, because he was of a contrary opinion in the very same term, in a like case between other parties; for, in Gremingham and Ewre's case, Cro. Eliz. 396, he laid it down for a rule, that, where a condition is in the disjunctive, *and one part of it becomes impos[*18 sible to be performed, by the act of the obligee himself, there the obligor is discharged from the other part; and his reason is, because in such case the obligor hath his choice to do either, and, being deprived of that choice by the obligee himself, therefore he shall do neither. Now, if this is law, what reason can be given why the act of God should not work a discharge, as well as the act of the party?" Drummond v. The Duke of Bolton has no application: and there is nothing in the cases of Wood v. Bate and Eaton v. Butter, to justify the suggestion that they are at variance with Laughter's case. In Com. Dig. Cove. nant (F), (b) it is said, "If tenant for life, or in tail, leases for twenty (a) Page 215. (b) Citing Cheiny and Langley's case, 1 Leon. 179. years, and covenants by demisi, and dies within the term, covenant does not lie." That case is analogous to the present. There, as here, the subject-matter of the covenant was gone. So in Bac. Abr. Conditions (Q), (a) it is said,— Regularly, if a condition which was possible at the making thereof, becomes impossible, by the act of God, the obligation is discharged." There being no words of limitation here, the provision for the wife would be limited to her life, and, if so, the husband has lost nothing. The second question, it is submitted, should, like the first, be answered in the negative: for, the court will not assume that the covenantor's daughter would have disinherited her heir, viz., her father; and, consequently, they cannot say that the plaintiff has sustained any damage at all. Brown was heard in reply. *19] *The following certificate was afterwards sent to the Vice Chancellor : "This case has been argued before us by counsel; and we are of opinion,-first, that Frederick Jones has not any good cause of action, -secondly, that, in the event supposed, Frederick Jones could not have recovered any substantial damages in such action." “W. H. MAULE, (a) Citing 1 Roll. Abr. 449. (Vin. Abr. Condition (G. c.) Vol. 5, p. 227); Co. Litt. 206 a ; Anon. F. Moore, 124; Pet and Cally's case, 1 Leon. 304. (b) When the case afterwards came before Vice Chancellor Wigram, his Honour said (7 Hare, 267):-"In this case, I am not assisted by knowing the reasons of the judges of the Court of Common Pleas : but I understand from counsel, that they considered the case by analogy to the reasoning of the court in Laughter's case. The covenantor in this case has reserved to himself the privilege of not making the stipulated provision during his life; and the provision by will, it is said, has failed, not by his act or omission, but by the default of the legatee in his lifetime. There cannot, I think, be any doubt that the intention of the parties is disappointed by this decision. Where a parent, on the marriage of a child, covenants to make for that child a provision by deed or will, it cannot be doubted that the provision is intended to be absolute, and that the mode of making it alone is intended to be left to the discretion of the covenantor. And a doubt crossed my mind, of this nature,-If the will of the covenantor had contained a provision in favour of the lady, and she had left issue living at her death, the new will-act would have prevented a lapse; and a doubt occurred to me whether the covenantor might not have made a will so as to have preserved to the lady the benefit of the covenant, notwithstanding her death in his lifetime,-whether, in fact, he might not, by will, have done for her (dying without issue) that which the will-act would have done for her if she had left issue living at her death. I do not know whether this point was suggested in argument before the Court of Common Pleas : but I do not feel such confidence in the point as to make it proper to send the case a secor.d time to law. I shall confirm the certificate." *HOARE v. SILVERLOCK. Jan. 11. [*20 It is a good defence to an action for a libel, that it consists of a fair and impartial (though not verbatim) report of a trial in a court of justice; and such defence is admissible under not guilty, which puts in issue as well the lawfulness of the occasion of the publication, as the tendency of the alleged libel. THIS was an action upon the case for a libel. The alleged libel consisted of a report of the trial of a case of Hoare v. Dickson, also for a libel, which took place at the Croydon summer assizes, 1847. The defendant pleaded not guilty. The cause was tried before WILDE, C. J., at the sittings at Westminster, after the last term. The plaintiff proved the publication of the alleged libel, and also that the defendant was the editor of the newspaper in which it appeared. On the part of the defendant, it was proposed to give in evidence certain letters which had been produced at the trial of the cause of Hoare v. Dickson for the purpose of showing that the then defendant, in communicating their contents to a benevolent society of which he was the secretary, had acted bonâ fide in the discharge of his duty; and it was further proposed to call witnesses to prove that the report in question, though not a verbatim report of what took place at the former trial, was a fair and substantially correct report. On the part of the plaintiff, it was objected that the evidence so proposed to be given was not admissible,-at all events under the general issue; for that, however necessary the letters might have been for Dickson's justification, the present defendant was not justified in giving them publicity, or in publishing a garbled statement of what passed in court. The objection was overruled, and the evidence *admitted: and [*21 his lordship, in submitting the case to the jury, told them that they must find for the defendant, if they were satisfied that the publication complained of was no more than a fair and bona fide report of the trial at Croydon. The jury accordingly returned a verdict for the defendant. S. Carter, for the plaintiff, now moved for a new trial, on the ground of misreception of evidence, misdirection, that the verdict was against evidence, and on the ground of the absence of a material witness.--The letters produced on the trial of the case of Hoare v. Dickson, were clearly not admissible in this case. [WILDE, C. J.-They were produced and read for the purpose of showing that the statement of them in the alleged libel, was a fair and accurate statement of their purport. MAULE, J.-They formed a portion of the defendant's evidence that his report was a fair one.] At all events, the matter should have been pleaded specially, in order that the plaintiff might have an opportunity to meet it. Curry v. Walter, 1 Bos. & Pull. 525, is apparentiy an authority against the plaintiff. It was there held, that an action cannot be maintained for publishing a true account of the proceedings of a court of justice, however injurious such publication may be to the character of an individual: but, "some doubts being entertained upon the bench, whether the matter of justification ought not to have been pleaded, the case stood over; and no judgment was ever given." It is submitted that those doubts were well founded. And in all the subsequent cases it will be found that the matter was specially pleaded: *see Lake v. King, 1 Wms. Saund. 131 b; Astley v. Younge, 2 *22] Burr. 807; Stiles v. Nokes, 7 East, 493;(a) Lewis v. Walter, 4 B. & Ald. 605 (E. C. L. R. vol. 6); M'Gregor v. Thwaites, 3 B. & C. 24 (E. C. L. R. vol. 10), 4 D. & R. 695; Duncan v. Thwaites, 3 B. & C. 556, 5 D. & R. 447 (E. C. L. R. vol. 16); Flint v. Pike, 4 B. & C. 473 (E. C.. L. R. vol. 10), 6 D. & R. 528; Stockdale v. Hansard, 9 Ad. & E. 1 (E. C. L. R. vol. 36), 2 P. & D. 1. Many things are privileged when spoken, though defamatory of individuals, the publication of which in a written or printed form, might be made the subject of an indictment or of an action for damages: The King v. Creevey, 1 M. & Selw. 273; The King v. Lord Abingdon, 1 Esp. N. P. C. 226; The King v. Mary Carlile, 3 B. & Ald. 167 (E. C. L. R. vol. 5). It is no part of the duty of a newspaper editor to publish proceedings in a court of justice: he is a mere volunteer. The observations of Lord ELLENBOROUGH, in Rex v. Fisher, 2 Campb. 563, evidently show that there was no disposition in that learned judge to allow any great latitude in cases of this sort to defendants. As to the alleged surprise,-the absence of the witness,-the affidavit was defective. MAULE, J.-Several points have been urged in this case. One is, that the plaintiff was surprised by the absence of a witness upon whose testimony he mainly relied. Surprise is a matter extrinsic to the record and the judge's notes, and consequently can only be made to appear by affidavit: and here we have no affidavit of surprise, in the sense required by the practice of the court. That ground, therefore, fails. The next question is, whether certain evidence which was offered on *23] the part of the defendant, was admissible *under not guilty. That evidence was of this nature,-having a tendency to show that the alleged libellous matter was published upon an occasion which justified the publication of that which might be injurious to the character of a third person. Now, evidence of that sort,-which is comprised within the class of privileged communications,-has always been held to be admissible under not guilty. It shows that the publication was not (a) S. C. per nom. Carr v. Jones, 3 J. P. Smith, 491. |