William Fleming, Manager of the Clydesdale Bank, Edinburgh, and Others v. William Hood Newton, No. 54, New Buildings, North Bridge, Edinburgh [1848] UKHL 6_Bell_175

UKHL

William Fleming, Manager of the Clydesdale Bank, Edinburgh, and Others v. William Hood Newton, No. 54, New Buildings, North Bridge, Edinburgh

[1848] UKHL 6_Bell_175

As all the records are by statute made open to the public, it is not libellous for a body of merchants to publish to each other the names appearing upon the Register of Protests, of persons who have dishonoured their bills.

Subject_ Ibid. — Ibid. —

The decrees of the Courts upon the registration of deeds and protests are equally open to the public, and may be published to it, as decrees pronounced in foro contentioso.

Subject_ Ibid. — Jurisdiction. — Interdict. —

Whether the Courts have any power to interdict a priori the publication of matter alleged to be libellous. Qucere?

Subject_ Ibid. — Interdict. —

A party cannot ask interdict to restrain the publication of matter which, by the application for interdict, he himself makes more public than the publication complained of could have done. Semble.

In the year 1837, certain individuals, amounting in number, at the date of the application about to be mentioned, to 320, formed themselves into a society, to be governed by a committee of twelve directors and a secretary, having for its object the communication to its members of information in regard to the mercantile solvency of persons not connected with the society; and the following regulations, among others, were adopted for the accomplishment of this object:—

“III. The Secretary shall collect from the General Records of Protests, Hornings, and other records of diligences, kept for Scotland at Edinburgh, the names and designations of debtors in trade and otherwise, appearing in these records.

Page: 176 ↓

IV. So soon as the Society's funds will admit of it, the General Committee shall appoint District Secretaries or Subcommittees in each county town of importance in Scotland, for the purpose of collecting, in manner before recited, the names and designations of debtors whose names shall appear in the County Records of Protests and Hornings, and against whom decrees may be allowed to pass in absence, as contained in the minute-book kept in each Sheriff-court. The information so collected shall be transmitted monthly, or oftener, as the General Committee may direct, to the Secretary of the Society at Edinburgh, and included by him in the printed lists to be circulated amongst the members respectively, in manner before mentioned.

V. The information contained in the printed records 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.

VI. With reference to the information contained in those printed records, every member shall be perfectly free and unrestrained in his engagements, and left to the full use of his own discretion and pleasure, in giving or refusing credit to any individual.

VII. In order to remedy the inconvenience so much felt from the want of a regular source of information regarding

Page: 177 ↓

X. Wholesale merchants, manufacturers, bankers, underwriters, insurance companies against risk by sea, fire and life assurance societies, wherever resident, and none others, except the Secretary of the Society for the time being, shall be eligible as members of the Association; and it is hereby declared, that in case any persons shall become members under an erroneous designation, or shall become members of a profession inconsistent with this rule, it shall be competent to the Committee to expel them; and in particular, no licensed attorney shall be eligible as a member of the Society, under the exception before expressed.

IX. Monthly meetings of the General Committee shall be held for the purpose of transacting the ordinary business of the Society, if occasion requires, and for the purpose of admitting new members; and it is hereby declared, that no person shall be admitted without the approbation of two-thirds of the members of Committee present, such approbation to be ascertained by the vote of the Committee.”

This society, of which the Appellants were the committee of managers, had for some time printed and distributed among its members every week the information which it had obtained from the public records, in the manner pointed out by its regulations.

In the month of November, 1845, the Society was about to publish its ordinary weekly intelligence, in which would have been inserted the name of the Respondent, as the maker of two promissory notes, which had been protested for non-payment.

Page: 178 ↓

The Appellants answered that there had not been any circulation of the Society's lists beyond its owm members, and that, with the view of confining it to them, a notice was prefixed to each number, in these terms, “For the exclusive use of members. Any member exhibiting or communicating the contents of his list to persons unconnected with the Society will forfeit his right of membership;” and they admitted, that in the number, which was about to be published at the time the application for interdict was presented, the name of the Respondent would have appeared in the manner anticipated by him.

The Lord Ordinary granted interim interdict, and after the preliminary papers were printed, reported the case to the Court,

Page: 179 ↓

“The Lord Ordinary considers this a case of great importance, and calling for the authoritative determination of the Court, with as little delay as possible. The Respondents describe themselves as members of a society, for whose use there is prepared, printed, and circulated among themselves, a weekly paper, called ‘The Scottish Mercantile Society's Record.’ This paper contains a list, taken from the General Register of Protests kept at Edinburgh, of the names and designations of all parties against whom protests have been recorded, and also from the record of Hornings and other diligences, as well as of all sequestrated bankrupts and other applicants for cessio bonorum. It further embraces the names of those appearing in similar county records, or against whom decrees in absence have passed, as well as a note of suspension of charges, taken from the books of the Bill-Chamber. The information thus procured is arranged in alphabetical order, for the sake of easy reference. There is no limitation as to the number of the members of this society, as it is called. It was admitted that there are at present several hundreds, consisting chiefly of bankers and mercantile men; and it was contended, that there was no law to prevent the circulation of such a list among 1000, or 20,000, or any number of persons who might think fit to join. But it was said, that this does not amount to publication, the information being confined to the members for business purposes, and the penalty for communicating to others the information thus obtained, or using it for other purposes, being a forfeiture of the right of membership.

If the publication of the list be in itself lawful, there seems no occasion for any such restriction. On the other hand, if it be unlawful, the Lord Ordinary cannot help thinking that the disguise is a very thin one, and that, where a

Page: 180 ↓

The interdict here sought is against entering the name of the complainer in the list, as a party against whom two protests have been recorded in the General Register, and against payment of which, he states, he has good grounds of objection. Although, no doubt, access may be had to that register for all lawful purposes, it is not one instituted for the purpose of publication. It was established by the Act 1681, c. 20, which declares, that protests upon bills of exchange “shall be registrable within six months after the date of the bill, in case of non-acceptance, or after falling due thereof, in case of non-payment, in the Books of Council and Session, or other competent judicatures, at the instance of the person to whom the same is made payable, or his order, either against

Page: 181 ↓

Page: 182 ↓

There is another view of the matter which also induced the Lord Ordinary to take this case to report. If it shall be held that this list is substantially a publication, and that the circulation of such a list is not a legitimate use of the record, then it will be proper to consider, whether, besides giving the individual interdict here sought, some steps may not be necessary to prevent the keeper of the register from giving copies in future for the purpose of such publication. The Lord Ordinary had no difficulty in granting the interim interdict, as in no view could this do any harm to the Respondents. But the matter being now brought before the Court, they will have a full opportunity of having the views of the Lord Ordinary corrected, in so far as these may be erroneous.”

The Court ordered minutes of debate to be prepared, and laid before the whole judges for their opinion, and on the 10th March, 1846, in conformity with the opinions of a majority of the consulted Judges, passed the note of suspension, and continued the interdict. The appeal was taken against this interlocutor.

Mr. Wortley and Mr. Gordon for the Appellants.—The complaint here is of an intention to publish the name of the Respondent, as having dishonoured two promissory notes, by nonpayment of their contents, not because the information proposed to be given by the publication is false or erroneous, but because it may be injurious to the party; but

In the first place, the fact of a party having dishonoured a bill or note is not a private matter, it is open and patent by the Records to all the world. By the Act 1681, applicable to foreign bills of exchange, extended by the Act 1692 to inland bills, and by 12 Geo. III., cap 72, and 23 Geo. III., cap. 18, to promissory notes, the protest upon a bill or note is to be registered in the books of the Court of Session, “to the effect it may have the authority of the Judges thereof interponed

Page: 183 ↓

The practice in compliance with this statute, is strictly of a judicial nature. The entry in the books of the Court, both in form and effect is precisely the same, mutatis mutandis, as in the case of a decree formally contested. Not only are the public entitled to be present at the pronouncing of decrees in open Court, but the 1 and 2 Vict., cap. 118, provides for the knowledge that might be thus acquired, being communicated to those who have not had this opportunity, by enacting that “the minute book of the Court of Session,” containing the entries of its decrees, shall be printed and sold by the keeper thereof, and shall be sold to the public at the lowest rate which will defray the necessary expense of printing the same.” As the public have a right, not only to be present at the pronouncing of a decree in foro contentioso, but to procure printed information of it, and to avail themselves in the ordinary pursuits of life, of the information thus acquired, so upon every principle they must be equally entitled to do so, where the decree passes sub silentio by consent of the party, for every reason for publicity which applies to the one case applies to the other. But, independently of reasoning upon principle, this register of protests, like all the other registers in Scotland, is by the Act of Regulations, 1695, public property. By that act, which has all the force of a statute, it is enacted, “that the registers immediately under the clerk register's keeping in the Lower Parliament House, or anywhere else, be patent to all the lieges, without any payment or other acknowledgement of that sort to be made to any for sight of the minute book,” and specified fees are authorized for searches in the Record itself; no limit is here made as to whom the

Page: 184 ↓

The 1 and 2 Geo. IV., cap. 38, in its 27th section, provides that “whereas it is expedient that the keepers of the several registers of records of sasines, reversions, abbreviates of adjudications, inhibitions, and deeds and probative writs, recorded in the books of Council and Session, should form alphabetical indexes of the persons and matters to which those records relate, for the purpose of easy reference to the same respectively,” the Court of Session should have power to regulate by act of sederunt the form of the indexes. And the 3 Geo. IV. lays down a table of fees for inspection of the record, when there is no minute book, of the record when there is a minute book, and of the documents recorded themselves. Any one who chooses to pay those fees has a right of access to the record, which no one can refuse him; and in practice nothing further is asked of him by the keeper, indeed it could not well be otherwise, for if the keeper were entitled to ask what interest a party, asking inspection of the record, had in the matter of the record, he must of course have the power of saying whether the party had established a sufficient interest, and of refusing or allowing inspection accordingly. But such a state of matters would be altogether irreconcileable with the Act of Regulations, 1695, that the records are to be “patent to all the lieges.”

Publicity, as to every man's circumstances, is in truth the principle of Scotch jurisprudence. Every burden or judgment affecting lands must be put upon record, which by the Act 1695, is open to all the lieges. So the mode of execution against the

Page: 185 ↓

In short, all the public registers of Scotland, whether of judicial proceedings, of deeds, or notarial or public instruments, whether for preservation or for preservation and execution, are accessible to every body, who, for any legitimate purpose, may by their means possess himself of the information they afford.

II. The Appellants, being all engaged in trade, have a material interest to know the solvency of the parties with whom they are about to deal; the communication to the general body is not done therefore in idleness, to gratify any unworthy or improper motive, but to communicate to each that information which is necessary for his safety in business; and if individually, they may use the records as sources of information, the body may, on the same principle, do it by their agent. Each man may search the record for himself either personally, or by his clerk, and the officer of the society is no other than the agent or clerk of all the members.

III. If the Appellants may lawfully procure this information, and communicate it to each other, their doing so will not become unlawful because it may by possibility be injurious; the inference, from the circumstance that a man has not paid his bill, is not necessarily that he is unworthy of credit,—it may have that effect with some minds, while with others it may produce no other effect than suggesting the necessity for inquiry as to the reason of non-payment. But the statement of the fact of non-payment is not a statement of either of these inferences, nor

Page: 186 ↓

Mr. Bethell and Mr. Anderson for the Respondent.—It is not possible to dispute that the printing and circulation of the Appellant's circular, though confined to their own body, is a publication, to all those at least engaged in the operation of printing and of such circulation. And the injury to the Respondent from this publication is manifest, by the benefit which the Appellants propose to themselves from it, as shown by the regulations under which they act. The benefit they propose to themselves is the knowledge of persons of“doubtful credit,” and the injury they inflict upon the Respondent is the being held out to the world as such. This benefit may be very desirable to these parties, and very essential to the safe conduct of their business, but what possible right can that give them to do the injury to the Respondent, which being held out as a

Page: 187 ↓

The effect of the publication is neither more nor less than a slander upon the Respondent, not merely by the statement of his promissory notes having been dishonoured, but by the inference intended to be drawn from that circumstance. If the Appellants were in any way interested in the transaction, and thus cognisant of its circumstances, they might or they might not be justified in publishing it; but, admittedly, they are not,—they are no way interested in the transaction,—and they know nothing of its circumstances, further than the mere fact of the protest having been registered; yet they publish that fact as inferential evidence of the Respondent being a merchant of doubtful credit, and associate his name with that of persons who undoubtedly must be of that character; such as bankrupts and pursuers of processes of cessio bonoyum The obvious inference from the publication is, that the notes are justly due, and that their protest has been occasioned by an inability on the part of the Respondent to pay, although there may be half a dozen other reasons why the notes have been dishonoured, accident, mistake, forgery, want of consideration, or the like, and should the cause have been obviated, and the notes paid after the Appellant's list is published, there is no way by which the Respondent could remove the injury done to his credit by the appearance of his name. There it would remain.

Not only are the Appellants total strangers in the transaction in question, but they never had, nor is it alleged they ever contemplated having, any transaction whatever with the Respondent ; they have no legitimate interest therefore to inquire into his solvency, and still less to publish to others any circumstance which may give an injurious or doubtful opinion of it.

Page: 188 ↓

II. But it is said the register of protests is open, and intended for publication ;—this is to confound the character of the different registers, some of which are expressly for publication, while others, of which the register of protests is one, are for execution only. The mere fact of possession of personal property gives the possessor the character of owner, and entitles the world to deal with him as such; there is no way, therefore, in which a right can be constituted over moveables apart from the possession of them; no register, therefore, is required in order to fix the character of ownership. It is otherwise, however, with real property; in regard to it the law has declared that the register, and it alone, shall evidence ownership;—accordingly, all land rights must be registered, and ex necessitate the registers must be open to the public, as publication is their purpose; such are the register of sasines, of reversions, of tailzies, of adjudications, and of inhibitions. The Act 1617, cap. 16, declares that the register of sasines “shall be patent to all our sovereign lord's lieges;” but even as to it extracts of the record are to be given only “to all as shall have adoe with the same;” and the Act 1672, cap. 19, in regard to adjudications, and of 1581, cap. 119, relating to inhibitions, all show an express purpose of publication. And, in regard to all these, the existence of a right to land, or of a burden upon it, and the discharge of that right or burden must appear upon the record.

On the other hand, as to moveable estate, though there are registers with respect to it, such as the register of deeds, of probative writs, and of protests,—these are for preservation only, or for preservation and execution. They neither are intended nor can they serve for publication. To take the register of protests, for instance,—it will shew the fact of a protest upon a particular note having been taken; but the note may have been paid the next half-hour afterwards; this fact, however, cannot enter the record. For the purpose of publication, therefore, of the true state of matters, this register is utterly nugatory. If a

Page: 189 ↓

But though the register of protests were embraced by the Act of Regulations, 1695, which is not so certain, without evidence that it was then “immediately under the clerk register's keeping,” yet it does not follow that, because a register is to be “patent to all the lieges,” this is to be taken literally to mean all, whether with or without an interest in the matter; but rather as implying all having such an interest; and still less will it imply a right in each individual not only to inspect the record personally, but to publish the result of his inspection to others.

III. It is, no doubt, true that the registration of the protest upon a note is equivalent in its effect to a decree for payment in favour of the creditor. It gives him the same warrant for execution; but, by the agreement of the parties, it is a private proceeding withdrawn from the public; and unless the publication in question can be justified, as being a publication of part of a public record, it can never be justified as publication of a decree of Court, which it is only by fiction.

Lord Chancellor .—My Lords, If it were necessary to lay down a rule respecting the jurisdiction which has been exercised in this case by the Court of Session, in granting

Page: 190 ↓

I do not pursue the question further, because, assuming the jurisdiction to be as extensive as it is claimed, I think that in this particular case it has been improperly exercised.

Bills and notes dishonoured and protested are by certain

Page: 191 ↓

The Act of 1681 cap. 20 enacts, that foreign bills shall be registerable in the books of Council and Session “to the effect that it may have the authority of the Judges” for process to issue “sicklike, and in the same manner as upon registrat bonds or decrees of registration proceeding upon consent of parties.” Subsequent Acts included inland bills and promissory notes. The effect of this is to give this registration the effect of a decree or judgment of the Court of Session. It is what in this country we call a judgment upon a warrant of attorney. In neither case does the Court interfere, but in both, as in cases of judgment by default and decree in absence, the party having a right to the authority of the Court to confirm his claim obtains the judgment as of course. Whether it be obtained by authority of Parliament, or by the consent of parties, or by the practice of the Court, appears to me to be immaterial. It is for all purposes a judgment of the Court until altered or reversed,

Page: 192 ↓

This indeed is not in dispute. The Lord Justice Clerk says in his judgment “I hold the register to be a proper record of Court, as much as the actual book of procedure now on the table, and entered up from day to day by the clerks. The party appears with his protest, and asks the Court for a certain decree upon it; which decree is not obtained by deliverance which leaves the Court, but by an entry in the book of Court.”

Is it then unlawful to state or publish the decree or judgment of a Court of Justice? If their proceedings are public, so must the result of such proceedings, namely, the judgment, be. For although the steps preliminary to the judgment are not transacted in open Court, the whole being incontestible in that stage, yet the whole is supposed to be the result of regular proceedings. The register, therefore, is, in its nature, public, but it is especially made so for purposes distinct from the object of giving effect to the right of the party. So Lord Bankton states in the passage referred to, IV., 4, 18. The Act of Regulations of 1695 provides, that the register under the clerk register's keeping be patent to all the lieges. This includes the books of Council and Session, in which the entry of protests are kept. The 55th George III, cap. 70? regulates the keeping of registers of deeds and instruments of protest. Section 27 of 1 and 2 George IV., cap. 38, provides for making indexes to certain and divers registers, and, amongst others, adjudications recorded in the books of Council and Session, for the purpose of easy reference, and that they may be made accessible to the public. It appears that in fact no index was made of the register of protests, but by the table of fees a different fee is payable for searches where there is and where there is not an index, so that the contents of all the registers, whether with indexes or not, are open to the public upon payment of a certain fee.

Page: 193 ↓

So far are any proceedings of the Court from being considered shut against the public, that by 1 and 2 Victoria, cap. 118, sect. 22 it is provided, that the minute book of the Court of Session and Teind Court, the record of edictal citations, the weekly calling list of causes, and the weekly printed roll of Outer House and Teind causes, “shall be printed by the respective keepers thereof, and shall be sold to the public at the lowest rate which will defray the necessary expense of printing the same.”

From these references it appears to me clear that the legislature have thought that the public at large ought to have recourse to this register, and of all the public, the Defendants have the highest interest in the knowledge of its contents. They are engaged in mercantile affairs in which their security and success must greatly depend upon a knowledge of the pecuniary transactions and credit of others. That each of them might go or send to the office and search the register is not disputed; and that they might communicate to each other what they had found there, is equally certain; but what they have done is only doing this by a common agent, and giving the information by means of printing. No doubt if the matter be a libel this is a publication of it, but the transaction disproves any malice, and shows a legitimate object for the act done.

I think, therefore, that upon this view of the case alone, the Respondent has failed to establish any title to the interdict, which, though ad interim only, must be discharged, unless shown to rest upon some tenable ground. Now it is admitted that no case can be produced in which such an interdict has been supported. The proceeding in its nature is much in the discretion of the Court, and most so when the case is perfectly new. In the exercise of that discretion, I think the Court of Session ought to have refused the interdict, and therefore advise your Lordships to reverse this interlocutor, with costs below.

Page: 194 ↓

Ordered, That the interlocutors, in so far as complained of in the appeal, be reversed; and that the cause be remitted back to the Court of Session in Scotland, with directions to that Court to recall the interdict granted by the Lord Ordinary, and continued by the Lords of Session of the Second Division, and to refuse the note of suspension and interdict, at the instance of William Hood Newton, the Respondent, against the Appellants. And it is further ordered, That the said Respondent do pay to the said Appellants the costs incurred by them in the Courts below. And it is also further ordered, That the cause be remitted back to the Court of Session in Scotland, to do therein as shall be just.

Solicitors: Graham and Weems— Alexander Robertson, Agents.