William Fleming and Others, - Appellants; William Hood Newton, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 17 February 1848 |
| Date | 17 February 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 797
House of Lords
Mews' Dig. v. 552, 575, 576. S.C. 6 Bell, 175. Considered, on Point as to Privilege, in Williams v. Smith, 1888, 22 Q.B.D. 134; and Searles v. Scarlett (1892), 2 Q.B. 56; Reis v. Perry, 1895, 64 L.J., Q.B. 566. On Point as to Restraining Publication of libel, commented on in Dixon v. Holden, 1869, L.R. 7 Eq. 492; Mulkern v. Ward, 1872, L.R. 13 Eq. 621; Prudential Assurance Co. v. Knott, 1875, L.R. 10 Ch. 145. As to interlocutory injunctions in like cases, see Monson v. Tussaud (1894), 1 Q.B. 671.
Libel - Interdict - Practice - Costs.
[363] WILLIAM FLEMING and others,- Appellants ; WILLIAM HOOD NEW TON,- Respondent [Feb. 10, 11, 17, 1848]. [Mews' Dig. v. 552, 575, 576. S.C. 6 Bell, 175. Considered, on point as to privilege, in Williams v. Smith, 1888, 22 Q.B.D. 134; and Searles v. Scarlett (1892), 2 Q.B. 56 ; Reis v. Perry, 1895, 64 L.J., Q.B. 566. On point as to restraining publication of libel, commented on in Dixon v. Holden, 1869, L.R. 7 Eq. 492 ; Mulkern v. Ward, 1872, L.R. 13 Eq. 621 ; Prudential Assurance Co. v. Knott, 1875, L.R. 10 Ch. 145. As to interlocutory injunctions in like cases, see Man-son v. Tussaud (1894), 1 Q.B. 671.] Libel - Interdict - Practice - Costs. The register of protests for non-acceptance and non-payment of bills of exchange and promissory notes, established by the Scotch acts of 1681 and 1696, and the 12 Geo. 3, c. 72, and 23 Geo. 3, c. 18, is a public document, to which every body has a right of access, and the publication of which in a printed paper does not constitute a libellous publication. A person whose name was upon this register, applied to the Court of Session for an interim interdict to prevent, so far as his own name was concerned, the publication of a copy of the register. The Court decreed for the application : Held by the Lords, reversing that decree, that the interdict ought not to have been granted, and also that the costs in the court below should be given. An interdict, though in form ad interim only, must be treated as a final judgment, and may be the subject of appeal to this House. This was an appeal against a decree of the Court of Session, by which suspension 797 I H.L.C., 364 FLEMING V. NEWTON [1848] and interdict had been granted against the appellants under the following circumstances. The appellants were the directors of the Scottish Mercantile Society, and the printer to that society. The Society had been formed of merchants and traders, and its object was declared to be " to concentrate and bring together, from time to time, a body of information for the exclusive use of the members, relating to the mercantile credit of the trading community, with the view of diminishing the hazards to which mercantile men were exposed." The third rule of the society was to the following effect: -" The secretary shall collect from the general records of protests, homings, and other records of diligences kept for Scotland at Edinburgh, the names and designations of debtors in trade, and otherwise, appearing in these records. The secretary shall likewise excerpt [364] from the Edinburgh Gazette the names and descriptions of sequestered bankrupts, and all notices of applications for cessio bonorum. The whole information so collected shall be printed and forwarded monthly, or oftener, as the general committee of directors shall think proper, to each member of the society respectively." The 5th rule declared that " the information contained in the printed record, so forwarded to members, shall be confined to themselves for business purposes, and no member shall communicate or use such information for other purposes, under the penalty of deprivation of membership." The society printed the information thus obtained in a book called " The Scottish Mercantile Society's Record." This book was known among the trading community a8 the " Black List." The respondent had dishonoured two promissory notes for 48 and for 100, and Andrew Miller, the payee of the same, had had them duly protested and the protests registered according to the Laws of Scotland. By the act of 1681, c. 20,* it was directed, " that in case of any foreign bill of exchange from or to this realm, duly protested for not acceptance, or for not payment, the said protest having the bill of exchange prefixed, shall be registrable within six months after the date of the said bill in case of non-acceptance, or, after the falling due thereof in case of non-payment, in the books of Council and Session, or other competent judicature, at the instance of the person to whom the same is made payable, or his order, either against the drawer or indorser in case of a protest for non-acceptance, or against the acceptor in case of a protest for non-payment, to the effect it may have the authority of [365] the judges thereof interposed thereto, that letters of horning on a simple charge of six days and other executorials necessary may pass thereupon, for the whole sums contained in the bill, as well exchange as principal, in form as effeirs." By an act of 1696, c. 36, the statute of 1681 was extended to inland as well as foreign bills, but no registration was provided for by these statutes except as against the acceptor. By the 12 Geo. III., c. 72, ss. 42, 43, the provisions of the previously existing Scotch acts were extended to notes as well as bills, xand to drawer and indorser as well as to acceptor; and by the 23 Geo. III., c. 18, s. 55, the previous statute was made perpetual. An act of 1617, which established the Register of Sasines, had directed that such Register " shall be patent to all the lieges," and the " act of regulations " (Art. 12, printed Acts of Sederunt, 1695, p. 211) declared "that the Registers immediately under the clerk register's keeping, in the lower Parliament House, or any where else, be patent to all the lieges;" and then it settled the fees for searching and taking minutes. The 55 Geo. III., c. 70, regulated the keeping of the various public registers in Scotland, and the 1 and 2 Geo. IV., c. 38, providing for making indexes to them for the purpose of easy reference. The society had in the usual manner taken a copy of the Register in which the protests for non-payment of the respondent's bills had appeared, and his name was about to be published, together with those of other persons, in the society's book, which was a mere copy of the Registers, when he applied to the Court of Session for an interim interdict to prevent the publication. The case came before Lord Robertson as Lord Ordinary, when his Lordship granted the interim interdict, and ordered the case to be reported for the opinions of the Lords of the second division * In the " acts of the Parliament of Scotland," printed by order of Geo. IV., in 1823, the number of the act in the margin of the year, 1681, is marked 86, and the number of the act in the margin of the year 1696, is marked 38. In the ordinary editions of the acts they are marked as stated in the text. 798 FLEMING V. NEWTON [1848] I H.L.C., 366 of the Court of Session. The other judges were con-[366]-sulted, and six of them, the Lord President, and Lords Fullerton, Cunningham, Ivory, Wood, and Robertson, thought that the interdict ought to be granted; Lords Jeffery, Mackenzie, and Murray were of a different opinion. When the Judges of the Second Division decided the case, the Lord Justice Clerk and Lord Moncreiff concurred in opinion with...
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