V.C. W.] THACKERAY v. PARKER-HUTCHINSON v. SMITH. no cases appeared to have been cited before Lord Langdale, and the only authority referred to was the 5th General Order of the 9th May 1839 (new Cons. Order, No. 20). He thought that the words "without prejudice to any question in the cause were probably taken from the language of the general order; and that the case was not decided by Lord Langdale on any distinctly raised and considered principle. In the present case it was plain, that eventually the title might turn out to be of no importance. It was not therefore a case for a reference on a motion of this sort. The motion must be refused, but without costs. Solicitors: Bevan and Whitting; Kimberley and Pope. V. C. WOOD'S COURT. Reported by W. H. BENNET and EDWARD LLOYD, Esqrs., March 20 and 21. THACKERAY v. Parker. Practice-Partition suit-Parties under Costs-Sale of entirety. Where some of the parties to a suit for partition are under disability, and it appears to be for their benefit that the costs of the suit be raised out of the estate before partition, the shares of all parties being properly chargeable with their costs, the court will direct a sale of the entirety of the estate for the purpose of paying costs. This was a bill filed to ascertain the rights and interests of the plts. and defts. in real estate devised by the will of Sarah Walker, and for a partition of the estate. A decree had been made directing certain accounts and inquiries, but no partition had been made. [V.C. W. Friday, March 27. HUTCHINSON v. SMITH. Will-Specific bequest-Wines-Books-Under what general words these will pass. A testator gave to his widow for her own absolute use and disposal "all his furniture, linen, plate, pictures, carriages, horses, and other live and dead stock, which might be in his use and possession" at the time of his death: Held, that the wine, which was of the value of about 150l., and the books, about 50h, passed to the widow by the specific bequest. This was a bill filed for the administration of the personal estate of Henry Clarke Hutchinson, the testator in the cause, and the usual accounts had been taken in chambers. On the cause coming on for further consideration a question arose whether the wines and books which the testator possessed at the time of his death passed to his wife under the specific bequest in his will after mentioned. The testator by his will, dated the 10th April 1854, disability-directed that his debts and funeral and testamentary expenses should be paid by his executors out of the making a specific devise to his said wife, the testator property thereinafter bequeathed to his wife; and after bequeathed the sum of 12,000l. sterling, and also all his furniture, linen, plate, pictures, carriages, horses and other live and dead stock which might be in his use and possession, and also all his ready money and arrears of rent, interest and annual income of his real and personal property which might be due at the time of his death, to his said wife for her absolute use and disposal. And all other the said testator's real and personal property, estate and effects whatever and wheresoever, the testator gave, devised and bequeathed to defts. J. Smith. T. Denman and R. H. Nettleship, their heirs, executors and administrators, upon trust to permit the testator's said wife to hold and enjoy and to receive and take the rents, issues, and profits of all the said testator's residuary real estate, and to receive and take the interest and annual income of all his moneys, securities for moneys, and residuary personal estate during her life. And after her death the said testator devised his real estate in manner in his said will mentioned; and as to the residue of all his moneys, securities for money and personal estate after the death of his said wife, the said testator, after bequeathing thereout certain pecuniary legacies, gave and bequeathed the ultimate residue (if any) of his said moneys, securities for money and personal estate to his nephew, the plt. John H. Hutchinson, and he appointed Smith, Denman and Nettleship executors. The testatrix divided her real estate into fourth parts, and gave to each of her brothers, James, Henry and William, and her sister Eleanor, one such fourth part for life, with limitations over for the benefit of their issue, which in the judgment of the court, upon the question of construction, gave the estate amongst all the issue who were living at the death of the last surviving tenant for life, per capita, as tenants in common in fee. The class thus ascertained amounted in number to forty-seven persons, several of whom were under disability by infancy, or coverture. Amphlett, Q.C. and L. Pemberton for the plts. James, Q.C., Daniel, Q.C., J. Pearson, Wickens, Kay, Rendall, Ellis and Beaumont for the several defts. The VICE-CHANCELLOR, after giving judgment on the construction of the will, said, that upon the question of the costs of the suit (several of the parties being under disability), it had been stated that all the claimants were desirous of having the estate sold in the first instance and the costs of all parties, including those of the commission, paid out of the proceeds. Upon looking into Seton on Decrees (1862), 578, it seemed that no rule applicable to the case had been laid down; but he had in Cox v. Cox, 3 K. & J. 554, made an order like that which was now desired. It certainly seemed to be for the benefit of all parties that the estate should be sold at once, and he should so order it. There would be a declaration that the costs of the infants, both before and after the commission issued, were properly chargeable on their respective shares; and it appearing to be for the benefit of the infants that the estate should be sold in entirety, a direction for such a sale for the purpose of raising and paying the costs. Solicitors for the plts., Flower and Co. The testator died on the 4th June 1856. The bill (inter alia) alleged that the widow Mary B. Hutchinson claimed property of a large amount as having been given to her, for her separate use, by said testator in his lifetime, or as having been given to her by said testator absolutely, in the event, which happened, of her surviving him, or as otherwise belonging to her on her decease, which property was, in fact, part of the personal estate of said testator, and that she had possessed herself of such property to a large amount and value. She herself died on the 14th April 1859, and by her will appointed executors, who proved same. The question now was, what were the articles comprised in said specific bequest of all the said testator's furniture, linen, plate, pictures, carriages, horses, and other live and dead stock which might be in his use and possession." The wines possessed by the deceased were, fifty-four dozen foreign wine, a pipe of Marsala wine, and six dozen of home-made wine. The books were not numerous-about 50%. in value. V.C. W.] Re TARBUTT'S ESTATE-Re BLANCHARD'S ESTATES-CAPEWELL U. LAWRENCE. [V.C. W. the ultimate residuary legatee, contended that the wines | by commission; but, as he understood that a similar and books which the testator possessed did not pass by application had been made to another branch of the the specific bequest to his widow. Had he intended to court with success, and as the person not found have included the books and wine, he would have lunatic by commission, in the present case, was abspecified them as he had done the other specific solutely entitled to a definite sum of 2001. per annum articles. Certainly books could not pass as "furni- which the court could protect in dealing with the protare, nor wine as "dead stock." Dead stock had ceedings consequent on the order on the petition, he been held to mean out-door stock. They cited for thought it would not be necessary that the person of unsound mind should be made a party to the petition.. Solicitors: Johnson and Co. this, Porter v. Tournay, 3 Ves. 811; Bridgman v. Dove, 3 Atk. 202; W. M. James, Q.C. and Chapman Barber, for the executors of the widow, contended that the onus probandi of proving that these articles did not pass rested with the residuary legatee. The wines and books passed by the general words of the bequest. The decision of Lord Alvanley was accompanied by the remark that that case was not to be considered as a governing case. Books were part of the testator's "furniture." Ouseley v. Anstruther, 10 Beav. 462, established this. Giffard, Q.C. for the representative of a deceased party. Wilcock in reply. The VICE-CHANCELLOR.-The testator intended that his widow should take the house in which they had resided together, and everything in and about it. As to the wines, in the case cited of Porter v. Tournay the words "live and dead stock" were found accompanied by carriages and horses only, and that seemed to have had weight with Lord Alvanley, as indicating that the articles under that description were to be ejusdem generis, viz. out-door stock. No judgment was pronounced upon the abstract meaning of the words. His Lordship had studiously avoided doing so. It could not, therefore, govern the present case, where the articles in dispute could have no reference to out-door stock. As to the books: the value of the books there was very large, a library; in the present case the value was not above 501, and might well be included in the general word "furniture. He should therefore decree that the wines and books passed by the due construction of the specific bequest to the widow. Order accordingly. Solicitors: Church and Co., R. H. Nettleship, Richard Smith. Thursday, May 7. Re TARBUTT'S ESTATE. June 5 and 20. Re BLANCHARD'S ESTATES. trust. This was a petition for a vesting order under the 37th section of the Trustee Act 1850. The petitioner was the trustee for sale of lands devised by the will of C. Blanchard; the legal estate was outstanding in the heir of a deceased mortgagee, who could not be found; it was consequently impossible to effect a sale. One only of the cestuis que trust joined in the petition. Prendergast now stated that the order had been made for the vesting of the outstanding legal estate, but that the registrar had declined to draw it up, on the ground that only one of the cestuis que trust was a party. The VICE-CHANCELLOR said that it could hardly be that a stricter rule should be observed on a petition than in a suit. If this had been a bill by a trustee for sale, it was clear that by rule 9 of the 15 & 16 Vict. c. 86, s. 42, he would have sufficiently represented his cestuis que trust. Probably the doubt had been suggested by one, and no more, of the persons beneficially entitled being a party. The order might be drawn up. Solicitors for the petitioners, Ridsdale and Craddock. Saturday, June 20. CAPEWELL V. LAWRENCE. Practice-Partition suit-Costs-Sale of infant's share. Where an order has been made in a suit for partition, and the costs of the suit are to be paid, some of the parties entitled being under disability, the court will order an inquiry whether it be for their benefit that the estate, or any and what part of it, be sold before partition. Semble, if the inquiry be answered in the affirmative, the sale will be made without further order. This was an ordinary suit for the partition of cer Practice-Leases and Sales of Settled Estates Act-tain freehold estates near Birmingham, devised upon 20 Vict. c. 120-Lunatic. A person of unsound mind, not found lunatic by inquisition, was entitled to a charge of 2001. per annum upon the property proposed to be dealt with under the Act: Held, that such person was not a necessary party to a petition under the Act, as the court would direct that what was done under the petition should be subject to that charge. This was a petition under the Leases and Settled Estates Act, 20 Vict. c. 120, and it appeared that a party, a person of unsound mind, but not found lunatic by commission, was entitled to a specific sum of 2004. per annum on the property. Roupell, for the petitioner, called the attention of the court to this fact, and suggested that such person was not a necessary party to the petition. The VICE-CHANCELLOR, referring to the 16th and 17th sections of the Act, said that the Act contained no specific provisions for the exercise of the powers conferred by it by or on behalf of persons not found lunatic trust by W. Waterhouse, the bill praying a declaration of the relative rights in certain shares to which the parties claimed to be entitled, and a commission for partition. Some of the defts. entitled were infants. Bristowe, for the plts., stated that the costs having to be provided for out of the estate, it would be for the benefit of all parties if a part of the property sufficient to raise the costs were sold before partition. His Honour had followed that course in Thackeray v. Parker (supra); and the M. R. in Davies v. Turvey, 8 L. T. Rep. N. S. 378, had under similar circumstances to the present made an immediate order for sale. Roberts, for defts., had no objection to the course proposed. The VICE-CHANCELLOR made the decree.-Minute, that an inquiry be ordered, whether it would be fit and proper and for the benefit of the infant children of W. Waterhouse, the son, that the messuages, lands, tenements and hereditaments mentioned in and specifically devised by the said will of the said W. Water V.C. W.] NEEDHAM v. OXLEY-M'NALLY v. OLDHAM. | (IRELAND. house, the testator, or any, and which of such mes- | receiving the profits of the deft. upon an account to be suages, lands, tenements and hereditaments, should taken. He did not think it was necessary for him to now be sold, and whether the same should be sold certify for a special jury, as the costs of the suit which subject to the incumbrances or incumbrance (if any) he had given would include the cost of the special jury; now charged thereon respectively, or with the con- it was undesirable to introduce a practice for which sent of the person or persons entitled to such in- there was no foundation of authority. The certificate cumbrances. of validity would be given. The Patent Law Amendment Act, not contemplating the subsequent trial of issues in this court, had only made provision for trials at common law; but he thought that the same rule might be followed here. Solicitors for plts., Fallows and Son; for defts., Sharpe, Jackson and Parker, and F. Hatton. Wednesday, June 24. NEEDHAM v. OXLEY. The court will not in all cases order the destruction On a suit for infringement before this court, the judge The jury in this case (ante, p. 532) had found a verdict for the plt. on all the issues. Solicitors for plt., Pyke and Irving; for deft., Harbin and Smith, agents for Messiter, Frome. Freland. COURT OF QUEEN'S BENCH. Reported by WILLIAM WOODLOCK, Esq., Barrister-at-Law. Jan. 13 and 22. M'NALLY v. Oldham. A party publishing a copy of a judgment does so at Demurrer. The first paragraph of the summons and plaint complained that theretofore, to wit, at the time of the cominitting of the grievances thereinafter Bagshawe now moved for a decree in the suit, ask-complained of, and long before, the plt. was in busi ing, first, that the deft. be ordered to make an affidavit setting forth what machines he had now in hisness as a jeweller in the city of Dublin, and was in possession or power, of his making, which had been large trade and good credit in said city; that in the found by the jury to be an infringement of the Edward Johnston in the sum of 1571. 4s.; that said course of his said trade the plt. became indebted to one plt.'s patent, and that such machines might be delivered Johnston recovered a judgment therefore in the up to be destroyed, or that the plt. might be allowed Court of Exchequer, on the 17th May 1860; and to purchase them for the value of the materials; thereon the plt. paid the amount of the said judg secondly, that an inquiry might be ordered in chambers ment and costs, amounting to the sum of 1812. 178. 5d., as to the amount of damage suffered by the plt. from the infringement; thirdly, for a certificate for the all the time aforesaid, and at the time of the comon the 19th May 1860. And plt. said that during special jury; fourthly, for a certificate as to the vali-mitting of the grievance, &c. the deft. was the prodity of the plt.'s patent. prietor and publisher of a periodical commonly called Giffard, Q. C. and Langworthy, for the deft., ob-The Black List," yet the said deft. falsely and jected to any order for the destruction of the machinery. The deft. was entitled to use them in any way which would not be an infringement. The case of The Emperor of Austria v. Kossuth, 2 Gitf. 628; s. c. on app. 3 De G. F. & J. 217; s. c. 8 L. T. Rep. N. S. 274, on app. 494, had no analogy with the present. There the articles made could only be used in one way. They also objected to an order for the assessment of damages. The plt. ought, when the case was before the jury, to have put in an issue as to damages; the court would not now reopen the question, especially as the alternative would give all that could be substantially wanted. The deft.'s profits were a proper measure of the damage to the plt. The VICE-CHANCELLOR said that he could not order the destruction of these machines; the patent being for a combination, the deft. might still use for other purposes the several parts of his machine. The order would be for an affidavit by the deft. in the terms asked by the plt., with liberty to the plt. to mark the machines. They should be marked in some way so as to enable the plt. at any time to follow them. On the question of damages, he thought that that would have been a proper matter to lay before the jury for assessment; it was a question which the court could not decide without going over the whole ground again, and the plt. would be sufficiently compensated by maliciously printed and published of and concerning the plt. in the deft.'s said publication, commonly called the "Black List," and on the 24th May 1860, long after the said judgment had been satisfied as aforesaid, the words following, that is to say, "24th May 1860; debtor's name, M'Nally, George; address, College-green, Dublin; trade, jeweller (meaning the plt.); date, 17th May 1860; court, Exchequer; amount, 1571. 4s.; costs, 71. 4s. 11d.; creditor, Edmond Johnston" (meaning thereby that said judgment had been recovered against the plt. and was then an existing liability against his estate and effects, and that said Edmond Johnston was then a creditor of plt. And plt. said that by reason of such publication the plt.'s trade and credit were ruined, and the plt) thereby became bankrupt, to the plt.'s damage of 2000l. Second paragraph-That being such trader as aforesaid, he, the said plt., was in good credit in his said trade, and at the time of the committing of the grievances, &c., that divers persons, and in particular Joseph Myers and Co., of Birmingham, Roberts and Bridges, of Sheffield, Blanksee and Son, of Birmingham, Prince and Son, of Birmingham, John Nathan, of Dublin, and B. Boam, of London, were in the habit of delivering goods to him in his trade on credit; and that the plt., on the 24th May 1860, was considered by said persons as a person L IRELAND.] M'NALLY U. OLDHAM. [IRELAND. who might safely be trusted with goods on credit, and | for a further defence to all said paragraphs, that the was in fact at said time so trusted by them. And the publication and representation in writing by each of plt. was not, on the said 24th May 1860, and at the time said paragraphs complained of was one and the same of the committing, &c., indebted to Edmond Johnston in identical matter and thing, that is to say, the publicathe sum of 1577. 4s., or at all, yet the deft. on the tion in said first paragraph in express terms set forth; 24th May 1860, falsely and maliciously printed and and said that, before the said printing and publishing published, and caused to be printed and published of by deft. the said Edmond Johnston, in said paragraph and concerning the plt. a false and malicious libel in mentioned, duly obtained a judgment in the Court of the words following (setting out the words above Ex. in Ireland against the said plt. for the sum of given, with an innuendo that the said plt. was on said 1577. 4s. for debt, besides 77. 4s. 11d. for costs of suit; day a judgment-debtor of the said Edmond Johnston and said judgment was duly enrolled and of record in in the sum of 1571. 4s., and 71. 4s. 11d. costs); by said court, and duly registered, and not annulled or reason whereof the said plt. had been and was greatly satisfied on record at the time of said publication and injured in his good name, credit and reputation; and representation in writing; and said publication and divers persons who had trusted the plt. in his said representation in writing was a matter so appearing of trade with goods on credit, and in particular the said record and registered as aforesaid, and not further or persons so named as above, ceased so to do, and otherwise, and was made bonâ fide and without malice. withdrew their credit from the plt., to his damage To this defence plt. demurred, saying that so far as it in the sum of 2000/ Third paragraph.-The was pleaded to the first paragraph of the plaint it did plt. being such trader, and in such credit as not disclose any defence good in substance, because it aforesaid, that at the time of the committing, &c. admitted the sense imputed in and by the said first divers persons, and in particular the said persons in paragraph to the publication therein mentioned, but the last paragraph mentioned, were in the habit of did not justify the publication in the sense in the said trusting the plt. in his trade with goods on credit; first paragraph so imputed; and because the publicaand the plt. was, at the time of the committing, &c. tion of the judgment in said fifth defence mentioned so trusted by them. And the plt. was not at said was not the publication of any public judicial proceedtime indebted to one Edmond Johnston in the sum of ing in a court of justice; and because the publication 1571. 48., or at all, of which the deft. had notice; yet of matter false in fact contained in a record of a court the deft. on the 24th May 1860, and divers other days of justice by a person not a party to said record, and times from thence up to the commencement of whereby another, a party to the record, sustained the suit, falsely published and represented in writing to damage, is not in itself lawful or privileged; and the said persons so named as above, and to divers other because, as it appeared by said first paragraph that persons, that the said Edmond Johnston was a creditor the judgment therein mentioned was paid prior to said by judgment of the plt., and that the said plt. was in publication, and the deft. published said judgment as fact indebted to the said Edmond Johnston in the being at the date of the said publication an existing sum of 157. 4s., with 77. 4s. 11d. costs, on said day, liability against the plt., any privilege for the publication the 24th May 1860, although deft. had notice as of the record in said defence mentioned was taken away aforesaid that said debt was paid, by reason whereof by the facts stated in said first paragraph. And that the the plt. was injured in his good name, credit and repu- said defence, so far as it was pleaded to the second tation; and divers persons, and in particular the said paragraph, did not disclose any defence thereto good persons so named as above, withdrew their credit from in substance, for the reasons already stated with referthe plt., and ceased to consider the plt. as a person ence to it as pleaded to the first paragraph; and who might safely be trusted with goods on credit, that the said defence, so far as it was pleaded to the and refused any longer to deal on credit with the third paragraph, did not disclose any defence thereto pit, and the plt. thereby became ruined and bank- good in substance, because said defence admitted that rupt to his damage of 2000l. Fourth paragraph.—the deft. represented that the plt. was in fact inThat at the time of the committing, &c. and long before, debted to Edmond Johnston on the 24th May 1860, plt. was a trader in the city of Dublin, and in great but did not justify the representation in the sense business as such trader, and at the time of the publication charged in said third paragraph; and because the thereinafter complained of the plt. was not indebted in publication in said fifth defence mentioned was not any sum to Edmond Johnston, of which the deft. the publication of any public judicial proceeding in a then had notice; yet the deft., on the 24th May court of justice, and because the publication by a 1860, falsely, fraudulently and maliciously made a person not a party to a record of matter false in fact false representation in writing to divers traders and contained in a record of a court of justice whereby others, and amongst others to B. Boam, John Nathan another, a party to the record, sustains damage, was and Joseph Myers and Co., of and concerning the plt., not in itself lawful or privileged; and because inasmuch in the words and figures following, that is to say as deft. had notice prior to said publication that the (setting ont the words above given and stating that debt therein mentioned was paid, and yet published the meaning was that the said Edmond Johnston was said record, having actual notice that the statements a creditor of the plt.) And plt. averred that, by in said publication contained were false in fact, any reason of the premises said persons, traders and others, privilege otherwise existing for such publication was withdrew their credit from plt. and he became bank- thereby lost. And that said fifth defence, as pleaded rapt to the plt.'s damage 2000. Fitth paragraph.-to the fourth paragraph, did not disclose any defence That at the time of the committing, &c. and long before, plt. was a trader in the city of Dublin, and in great business as such trader, and at the time of the publication thereinafter complained of, the plt. was not indebted in any sum to Edmond Johnston, yet the deft, on the 24th May 1860, falsely and maliciously printed and published in writing a false and malicious libel of and concerning the plt., in the words fol- second paragraphs. lowing, that is to say (setting out the words above S. Walker (with him Heron, Q.C.), for the plt., in given, with an innuendo that the said Edmond John-support of the demurrer.-The justification does not ston was a creditor of the plt.), whereby the plt.'s answer the entire charge. It admits the sense imputed credit was rained, and he became bankrupt, to the to the publication, and does not justify in that sense. pt.'s damage of 2000l. The deft. pleaded, fifthly, The charge is, that the deft. published in the "Black thereto good in substance for the reasons assigned as grounds of demurrer to said defence as pleaded to the third paragraph. And that said defence, so far as same was pleaded to the fifth paragraph, did not disclose any defence thereto good in substance for the reasons assigned as grounds of demurrer to said defence, so far as same was pleaded to the first and 66 White v. Tyrrell, 5 Ir. C. L. Rep. 498; [IRELAND. List," not merely that a judgment had been recovered | Queen's courts are the common right of the public: (2nd on the 17th May, but that that judgment was, on the Taylor on Evid. s. 1340.) The fact of knowledge of 24th May, the date of the publication, an existing the alteration of the position of the parties does not liability against the plt. It is no answer to that to take away the privilege of publishing an existing say a judgment was recovered on the 17th, which in record. The defence in this case is not to be looked fact I have a right to publish : upon as a plea of justification to the counts in libel, but as an explanation of the circumstances under which the publication took place. The words here are not defamatory, and no action will lie on them, although special damage is alleged: (Kelly v. Partington, 5 B. & Ad. 645.) Nor is the publication said to have been of the plt. as a trader. The words here do not come within any definition of a libel, and the plaint itself is bad: (Parmiter v. Coupland, 6 M. & W. 105.) As to the counts for a false representation, the defence is good as to them, and, so far, the objection made on the ground of the defence not justifying in the sense imputed does not apply. They also cited Re Bagot, 8 Ir. L. R. 295; Clarke v. Taylor, 3 Sc. 95; 1 Wins. Saund. 244 (b), note q. Heron, Q. C., in reply, cited O'Connor v. Wallen, 6 Ir. C. L. Rep. 378. Suppose, however, the plea answered the entire charge, if any immunity exists for the publication of a judgment of record, it must be either because it is the publication of the judicial proceedings of a court of justice, or because a record is in its own nature a thing so public that a party may safely publish it. But the publication of a judgment is not analogous to the report of a public trial. There is nothing to show in this case that the thing published is of the character which may be published; and the manner and object of publishing it are quite different from the manner and object of publishing the report of a trial: Davison v. Duncan, 7 Ell. & Bl. 231; Stiles v. Nokes, 7 East, 492. Jan. 22.-LEFROY, C. J.-This case comes before the court on a demurrer to the fifth defence. In the Lewis v. Levy, 1 Ell. Bl. & Ell. 537. course of the argument, the deft. took the course, Then, a judgment of record is not a matter of so which was properly open to him, of insisting on the public a nature that a party may safely publish it. objections which, as he considered, lay to the sumThe publisher ought to show that he has some mons and plaint, and showed that it did not state a good interest in the contents of it. The fact of being cause of action. The case is one of considerable imallowed to get a copy of a document is a very dif-portance, and concerns the public, or at least a vast ferent thing from the right to make that document portion of the public, as well as the plt. The nature public: (Rev. Creevy, 1 M. & S. 273; Popham v. of the case and of the defence can be best known, and Pickburn, 7 H. & N. 891.) Fleming v. Newton, 1 H. it is important that they should be correctly known, of L. 363, will be cited on the other side, but it is from a statement of the summons and plaint, and of distinguishable. There was no allegation of malice, or the defence that has been pleaded to it. In the case of any injury having resulted from the publication there are involved questions of importance, and the rein that case. Then also the publication was literally sult of all is, that we are of opinion, first, that the true. The statutes there giving publicity to the record plt. has shown a sufficient cause of action; and, of protests were different from and stronger than the secondly, that the defence pleaded does not state a statute 1 & 2 Geo. 4, c. 53, which relates to the sufficient ground of either justification or excuse. records of courts of justice in this country. Lastly, The action is brought by the plt. as a trader, not only on the facts as they appear in this defence, the publi-alleging that he was a trader of credit, but specially cation here was an unfair one. It amounted not only to a statement that a judgment had been recovered, but to a statement that the judgment was in full force on the 24th May, which is translating the thing published to the injury of the plt.: (Lewis v. Clement, 3 B. & A. 702; Lewis v. Walter, 4 B. & A. 605.) Further, it appears from some of the counts that at the time of the publication the deft. had actual knowledge that the thing which he published was untrue, which makes the publication an unfair one. W. Sidney and Armstrong, Serjt., for the deft. The deft. had a right to inake this publication as a publication of a record of a judgment. As a principle every court of justice is open, and the publication of even an ex parte application for a criminal information has been held to be justified. It is true, that a regular plea of justification must justify the libel in the sense imputed to it in the innuendo. [HAYES, J.-Perhaps the defence here may be upheld as a plea of excuse.] Then, there is no case showing that the right to publish the proceedings in a court of justice is confined to proceedings openly had: (Curry v. Walter, 1 B. & P. 525; Lewis v. Lery, 1 Ell. Bl. & Ell. 537.) Fleming v. Newton, 1 H. of L. 363, is a strong authority in favour of the deft. Then, publicity is required not merely for the purpose of showing that there is an existing debt, but also for the purpose of showing the status of the party, which may be very important. Under the various Bankrupt Acts, and under the statute 7 & 8 Vict. c. 90, there is express legislative authority for inspecting the various records of the courts upon payment of a fee. The inspection and exemplification of the records of the stating particular persons with whom it was of importance that his credit should be maintainedpersons who supplied him with goods, naming them, upon credit. After that general statement as to his credit generally, and as to the persons whom he named, who were induced, by this publication, to withdraw from him the credit they had theretofore given, it goes on to state that on the 24th May the deft. published of and concerning him a false and pernicious libel, stating the publication as of the 24th May, which will be found important; and, what is also material, stating it to have been made in a document known as the "Black List," a very signi ficant term and one fairly to be adverted to on the principle that, though this comes before the court now upon a consideration of the pleading, the law is perfectly settled that, with respect to the meaning of language, the court is to exercise the same judgment that individuals would do with respect to the meaning of terms where they are not affected by an innuendo so as to change the ordinary meaning. Well, having thus stated and given that denomination to the publication, he goes on to say: [His Lordship read the words complained of, the innuendo, and the rest of the first count.] This charge is repeated through four other counts, as we used to call them, or paragraphs, as is now the appellation to be given to them, with different circumstances of more or less aggravation. One of those circumstances is, that the plt. was, in consequence of this publication, driven to bankruptcy and to ruin. Another circumstance of aggravation is the allegation, that the deft. knew that this representation, that the plt. was on the 24th May a judgment-debtor |