The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-07-05

case, and we must be governed in our
conclusion mainly by a consideration of
the reasons upon which admitted prince
pies have been established and the pecu
mar features of the proceedings which
mas been published. We begin by recall
ing the familiar distinction between the
respect to the filing ''' of b is
petition and the privilege of the
same or any person in respect to sub
sequently printing it in the newspapers
or otherwise publishing it to strangers,
having no interest in the matter. This
distinction, we believe, has always been
recognized, both before and since. We
therefore have on one side, all cases
which only tend to show that the pc
tltioner incurred no liability in so doing.
The privilege set up by the defendants
is not that which attaches to judicial
proceedings, but that which at
taches to fair reports of judicial pro-
ceedingSs. Now what is the reason
Tor the latter? The accepted statement
is that of Mr.. Justice Lawrence, in Rex
vs.. Wright, 8 II. r., 293-29S.
He says; Though the publication
OF such proceedings may be
to the disadvantage of the par
ticular individual concerned, yet is of
vast Importance to the public that the
proceedings of courts of Justice should
be widely known. The general adyan-
tage of the country i'm having these pro-
ceedings made public more than coun-
terbalances the Inconvenience TO the
private person whose conduct NAV be
the subject of such proceedings The
chief advantage to the country which
we can discern, and that which we un-
derstand to be intended by the forego-
iC hn fit I'll
LEFTY gives for the proper administra-
ton of justice. 1t used to be said some
times that the privilege was founded
| upon the fact of the court being open to
the public. This, no doubt, Is too mar
row, as suggested by Lord Chief Justice
| Cockburn, but the privilege and the ac-
cess of the public to the courts stand in
reason common ground. 1t is desirable
that the trial of causes should take place
under the public eye, not because the
controversies of one citizen with another
are of public concern, but because it is
of the highest moment that those who
administer justice should always act
under the sense of public responsibility
and that every citizen should be able to
satisfy himself with his own ewes ms TO
the modes in which public duty is per
formed. If these are not the only
grounds upon which fair reports of Judi
cial proceedings are privileged, ali will
agree that they are not the least impor-
tant ones. And it is clear that they have
no application whatever to the contents
of preliminary written statements OF
a claim or charge. They do not con.
stitute a proceeding in open
court. knowledge of them throws
no light upon the administration OF
justice. Both forms and contents de-
pend wholly upon the will of a private
individual who may not be even an
officer of the court. 1t would he carry
ing privilege further than we feel pre-.
pared to carry it, to say that by these
easy means of emitting and filing it in
Il cause, sufficient foundation might bc
laid for scattering any libel broadcast
with impunity and we waive considera
ton of the tendency Of Il publication
like the present to create prejudice ant
interfere with u fair trial. Neither shall
we discuss the question what limitation,
there are, if any, to the requirement,
that the proceeding must have beer
acted on and decided. For, apar
from the distinction between
what takes place in open
court and the contents Of papers filed in
the clerks office, ii might be said thai
these considerations apply with cma
! ~
published from day to day as they take
place, and that nevertheless it has beer
held that reports might be published
ana that it is not necessary to wait unit
a trial is completed. The practice o.
publishing reports i'm this manner /,
universal with us, and we may conccdt
that it might happen that the proceed
ings of the first day stopped with tn,
reading of the ploadings, or in this cast
of the petition, and that fair report
under these circumstances, would b,
privileged without considering whether
a publication of the first DAYS
proceedings could be made actionahlC
| by relation ifthe subsequent ones should
he omitted. For the purpose of the pres
ent case 1t Is enough to make the plain
distinction between what takes place in
open court and that which is done out ol
court by one party alone, or more eN.
actly, us we have already said, the con.
tents of paper filed by him in the
clerks office. This distinction, although
not established by them, derives an in,
direct sanction from the cases which
have turned on the question whether
the proceeding, for instance, the exam.
nation of II bankrupt, took place in q
public court. II is further to be noticed
that the language of Chief Justice Shaw
IN Barrows VS.. Belle clearly implies that
the privilege claimed 10y the defendants
| does not protect them. He SAYS that q
iair statement of the proceedings, when
they have been acted upon and decided
made with an honest view of giving use.
full information, and upon the publico.
ton will not tend to obstruct the cause
of justice and interfere with fair trial
IS not n libcllOus publication. In the
English Chancery court il is held to he
acontcmpt of court to publish pleading
OF party in Il newspaper or, Il would
seem, the whole proceedings, before the
matter has come to he heard. 4 con-
tempt of court cannot be privileged, and
we see no reason TO doubt that an action
could he maintained for such publica,
ton to proceedings in equity. IF one
| exhibit y scandalous bill, If the court
hath jurisdiction of such matters, an
action lies not; otherwise il Is, il the
court hath not Jurisdiction; or having, II
the party publis his hill abroad, the said
bill being false
ave have placed only qualified rcli
ance ON the eases cited, because some o
thom were decided before the latest de
velopments of the law of libel, and thos,
on tho question of contempt have beer
! placed ON grounds not perhaps conVinc.
ing with regard to the present qucs.
! ton.
at may be objected that one reason.
| ing tnctly assumes that papers properly
! filed in the clerks Office are held open "a
the inspection of the public. We do moi
admit that this Is true, or that the
reasons for the privilege accorded to the
publication of proceedings in open court
would apply to the publication of such
papers, even If all the world had access
to them. But we do not pause to discuss
the question, because we are OF
opinion that such papers are not
open 10 public inspection. A
different conclusion might he drawn
chapter 81, section 3, but the county re.
cord or files, which are there ordered Ia
he open for public inspection and OK
animation, and of which any person
may take copies, are the records and
files of the county, not of the court of the
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