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other side presenting a petition to that end, V. S. was committed.*
And though a cause be technically dead, the judge will punish by committal or otherwise violence done or offered to the parties, witnesses, or others, at the conclusion of the case and in the vicinity of the Court.'I' And any violent or indecent behaviour in the face of, or in the vicinity of the Court, sedente curia, would be a contempt, though no cause had been called on before the Court.I
But (saving the ordinary lawlas to libel and slander) any person may comment as he pleases on a case which is concluded.§ And although a cause or action may be technically pending, it is not every comment on a past stage of the proceedings which will be punished as a
contempt. This plainly appears from the following, among other cases :—
A motion was made before Stuart, V.C., for an injunction to restrain the defendants from using the trade mark of the plaintiffs. The plaintiffs admitted that they had knowniof the alleged infringements, but had not, till the then present time, taken any steps to restrain them. Upon this, the Vice-Chancellor, without calling on counsel for the defendants, directed the motion to stand over, with liberty to the plaintiffs to bring such action as they might be advised, and with liberty to apply. Three days later a report appeared in the Leeds Mercury in which it was stated that a particular fact necessary to the case of the plaintiffs had been established in evidence, and that the defendants relied on the lapse of time. The plaintiffs printed this report in the form of hand-bills, which they circulated among the trade. The defendants moved for an injunction to prevent this. This was not in form a motion for attachment or committal, but it was discussed on the same principles. It was argued that the report was false, inasmuch as it stated a certain thing to have been established in evidence, whereas no evidence was gone into on the occasion of the motion and that the defendants relied on lapse of time, whereas counsel for the defendants had not been heard. The report, it was urged, was calculated to prejudice the minds of the public, some of whom might act as jurors in an action at law then pending between the parties, and was an interference with the due administration of justice. The Vice-Chancellor refused the motion. The report, he said, was not, and could not be expected to be, a perfectly accurate report, yet it contained no such inaccuracy and no such impropriety in any part of it as to justify the motion; and though he did not approve the publication, not being satisfied that it was a fair proceeding, it was not every unfair report that the Court would punish. His Honour directed that the costs should be costs in the cause. An appeal from this decision was dismissed by Knight Bruce and Turner, LL.].]., the latter saying, “ If we entertain this application we might have to sit here from day to day to
* By Sir Geo. Rose sitting for the C.J., Exparte Van Sandau,re Martin, 1844, 1 Ph. 445, S.C. Ex pm: Turner, 3 Mont. D. & D. 523. Order approved by Lyndhurst, L.C., ex parte Van Sandau, 1844, I4 L.J. Bk. 9, but subsequently discharged by Cottenham, L.C., on account of irregularity in the form of the writ of attachment, ex parle Van Sandau, 1846, 1 Ph. 605; I De G. 303. See also Van Sandau (printed Saudau) v. Turner, 1845, I4 L.J. Q.B. 154 (action for false imprisonment arising out of the committal). Ex parte Crawe, the unreported case relied on by Sir Geo. Rose, is ex parle _'}’oues, 1806, I3 Ves. 237 (see Birch v. Walsh, 1846, 10 Ir. Eq. Rep. 93), and the same case as Re Quick, the order in which is cited by Cottenham, L.C., in the report 1 De G. 303.
1- Rex. v. Wigley, 1835, 7 C. and P. 4.
I Ib. See In re Pater, 1864, 33 L.J. M.C. I42. D., a disappointed suitor, firing a pistol at Jessel, M.R., who had alighted from a cab at the door of the Rolls Court, and was about to proceed to his private room and thence to the Court, was taken into custody by a policeman in attendance at the Court, and afterwards tried by ordinary criminal process. Reg. v. Dadwell, Times, 16th March, I878, S.C. Re Dodwell, Seton, I589.
§ Re Ledger, Dallas v. Ledger, 1887, 52 J,P. 328; 4 T.L.R. 432.
try the fairness or unfairness of every report appearing in the newspapers.”
M. brought an action against G. to recover damages for breach of an agreement to supply 250 additional subscribers to the Choir newspaper. The trial took place before Brett, ]., at the Guildhall, when a question arose as to the validity of the alleged agreement. A verdict was returned for the plaintiff, leave being reserved to the defendant to move to enter a nonsuit, or for a new trial, or to have the verdict entered against him on the money counts in the declaration only, these being in respect of copies of the newspaper actually supplied to him. At a concert given shortly afterwards at St. ]ames’s Hall, W. acting, as was admitted, as the defendant’s agent, caused a printed paper to be placed in every seat, commenting on the trial, and giving, generally, a version of the facts favourable to the defendant, and not strictly accurate. Thereupon a motion was made for a rule to shew cause why an attachment should not issue against \/V. for contempt of Court. The Court of Common Pleas refused the rule; because, if, looking to the mode of distribution, and its general character and object (to explain the absence of an orchestra at the concert owing to the expenses of the action), the paper could constitute a contempt at all, which the Court doubted, the time in which a new trial could be moved for had not, indeed, expired, but the motion might or might not be made, and there was nothing pending before the Court at all.t
D. brought an action against the proprietor of the Er a for an alleged libel. The trial resulted in a verdict of forty shillings for the plaintiff. The defendant gave notice of an
' Brook v. Evans, 1860, 29 L.J. Ch. 616; 8 W.R. 688. See Buenos Ayn: Gas C0. v. Wilde, I880, 42 L.T. 657; 29 W.R. 43. 1- Mahler v. Gounod (Mrs. Weldon’: Case), 1874, 30 L.T. 264. Judgment Of Keating, J., Brett and Denman, J.J., concurring
application for a new trial, but published in the Era an article censuring and ridiculing the jury for their disregard of the summing up of Lord Coleridge, C.]., before whom the trial took place. On an affidavit verifying this article, a motion was made that the defendant might be punished for contempt. The gist of the argument was that the article was an interference with the course of justice in that it plainly suggested that a second jury would be fools if they did not find for the defendant. The Divisional Court declined to accede to the application. There was an undoubted right, said Field, ]., to make comments upon the conduct ofjudges or jurors, and it was admitted that if the article had been published before the notice of an application for a new trial, it could not have been complained of. But the liability of the writer could not depend upon a notice having been given of an application for a new trial. Suppose the new trial refused by the Court, and an appeal brought. Suppose an appeal carried to the House of Lords. Was the right of comment to be in suspense for two or three years? The case would by that time have lost all interest. In that view, the right of comment would not be of much value. The true principle was that the article must be such as (in reasonable possibility) to influence the trial of the case and prevent the tribunal from coming to a just and impartial decision. If on the morning of, or before, the trial an article had appeared indicating that the jury would be foolish unless they found according to the view of the writer, that would be an interference with the course of justice, and he should be prepared to exercise the power of the Court to prevent a miscarriage of justice by means of a gross contempt. Stephen, ]., expressed his opinion to the same effect, and noticed, as a sufficient ground for refusing the application, the considerable time which, in any event, must elapse before a new trial took place, and the consequent improbability that the article would then have any influence on possible jurors, or, through them, on the course ofjusticefi‘
\/Vhen an indictment has been found against a number of persons, the whole trial constitutes one proceeding, though, in point of fact, the defendants sever in their challenges and are tried seriatim. The proceeding does not terminate till the last prisoner has taken his trial.1'
Where the husband had obtained a decree of judicial separation, a motion for attachment against the wife upon the ground of molestation after the decree was refused by Butt, j., who held that his functions were at an end, and that he had no jurisdiction,—the case was one for a police magistrate. I
‘Re Ledger, Dallas v. Ledger, 1887, 52 J.P. 328; 4 T.L.R. 432; Metzler v. Gounod, u.s., not cited. In Corkery v. Hickson, 1876, I.R. 1o C.L. I74, Q.B.. Vtlhiteside, C.J., O'Brien and Fitzgerall, J.J., the defendant publishing, pending a respite to enable him to move for a new trial, apamphlet discussing in a spirit of censure the entire case, the jury, the counsel, and the evidence, was, on motion, fined £20 with costs. The point that, substantially, there was no case pending before the Court was not taken. See also Felkiu v. Herbert, 1863, 33 L.J. Ch. 294.
1-Rex v. Clement, 1821, 4 B. & Ald. 218 (the trial of the Cato Street eouspirators).