been offered an opportunity of showing cause why he should not Re JOHN REA. be committed for contempt of court; but that instead of doing so he proceeded to interrupt the proceedings of the court.

1879.

Held, that on habeas corpus affidavits could not be opened before the Contempt court to show that this statement on the warrant was untrue.

IN

N this case the prisoner, John Rea, a solicitor, in the course of a case, in which certain persons were charged with riot, tried at petty sessions in Belfast, was guilty of conduct amounting to a contempt of court, and was committed to gaol on a warrant stating that Mr. Rea, having intimated that he was for one of the accused only, persisted in interfering between the Court and the others; that he was guilty of a contempt of court, and that having been offered an opportunity of showing cause why he should not be committed for unlawful and wilful contempt of court, instead of showing such cause he again proceeded to interrupt the proceedings, whereupon he was committed to gaol for seven days. The prisoner was brought up on habeas corpus, and it was now proposed to open affidavits, filed on his behalf, to show that no such opportunity of showing cause, as stated in the warrant, was actually given.

P. Keogh, for the prisoner.-The proceedings which took place antecedent to the warrant were irregular. It should be open to the prisoner to show this by affidavit though the warrant itself be regular on its face: (Re Pollard, L. Rep. 2 P. C. C. 106.)

Purcell, Q.C., for the magistrates, contra.-If the law contended for by the prisoner be correct, there is not a single case of imprisonment throughout the country but might be questioned. The warrant being good on the face of it the court can inquire into it no further: (Re The Sheriff of Middlesex, 11 Ad. & El. 273; Stockdale v. Hansard, 9 Ad. & El. 1, and 11 Ad. & El. 253). MAY, C.J.—The Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), by sect. 9 enacts, that if any person shall wilfully insult any justice or justices sitting in such petty sessions court, or shall commit any other contempt of any such court, it shall be lawful for any such justice or justices, by verbal order, to direct such person to be removed from such court, and taken into custody, and at any time before the rising of the court, by warrant, to commit any such person to gaol for any period not exceeding seven days, or to fine such person any sum not exceeding 408. Mr. Rea was committed for contempt of court under that statute. A writ of habeas corpus has been obtained, and the legality of the committal is brought under consideration. It is plain that no tribunal could be maintained with order and decency unless the presiding judge had the power of dealing with and suppressing contempts committed in the Court. It is for the sake of the administration of justice, and in order to maintain the decency and order of judicial proceedings that this extensive and summary power is confided to a judge. The writ of habeas corpus was issued and directed to the governor of

Jurisdiction ·
Warrant.

1879.

Re JOHN RAE. Belfast gaol, and the return made by that official shows that Mr. Rea was legally in custody. Counsel, however, on behalf of Mr. Rea, contend that, admitting that a contempt of Court was Contempt committed, as the warrant states, and that the warrant and return Jurisdiction. Warrant. are regular, it is open for Mr. Rea to state by affidavit that previously to his committal no opportunity was given to him of showing cause against the intended order. For that purpose the case of Re Pollard (L. Rep. 2 P. C. C. 106) was cited, but upon referring to that case it will at once appear that it has little application to the motion before the Court. In that case the Chief Justice of Hongkong passed a sentence on a barrister practising in his court on account of alleged contemptuous language and conduct in the conduct of a case, the matter having occurred several days previously. The case came before the Privy Council upon an appeal from that sentence, the appellant stating in his affidavit that he had in vain applied to the judge to be informed in what his contempt consisted, and that he had stated in court that if he had conducted himself improperly, he was ready to apologise. The Privy Council, in reporting to Her Majesty, state that in their judgment, "No person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated and an opportunity of answering it be given to him ;" and no doubt, as a general rule, that doctrine is a well founded and constitutional doctrine. But I am not aware that when an admitted contempt has been offered to a court in the face of the court, it is necessary for the presiding judge, before removing or committing the offender, to call on him to show cause why he should not be committed or removed and it would appear clear that the section of the Act above referred to contemplated no such formality. It is to be also observed that we are not dealing with the case of certiorari seeking to quash the order of the magistrate, in which case the propriety of the order might be inquired into as in Ex parte Porter (5 B. & S. 299). The prisoner is before us on habeas corpus, and on such a case I do not think the court should go into such questions as are sought to be raised. It is admitted that a contempt was committed, that the warrant of committal is regular and valid on the face of it, and under such circumstances I think that the court can only order the prisoner to be remanded.

O'BRIEN, J.-When in the matter of John Rea (14 Cox C. C. 139) was before me last October, in Re Pollard (L. Rep. 2 P. C. C. 106), was strongly relied on as now, it being declared by the Privy Council in their judgment that no person should be punished for contempt, which was a criminal offence, unless the specific offence charged against him was distinctly stated, and an opportunity of answering it given. The affidavits were fully before me last October, and they did not in my opinion satisfactorily establish that such opportunity was on that occasion given to Mr. Rea, and as it appeared that Mr. Rea would be in

1879.

ContemptJurisdiction

any event entitled to discharge on the following day, I gave him Re JOHN REA. the benefit of the doubt, and directed his discharge. Now, however, I look upon it as decided by the judgment of the Court in the present case, that the principle of in Re Pollard does not apply to a case like this; and whatever my opinion might be, this decision must now be considered as the law of the land, and it is certainly desirable that there should be some settled law on the subject. I may intimate, however, that I am inclined to say Mr. Keogh might be allowed to open the affidavits.

FITZGERALD, J.-I concur in the judgment delivered by my Lord Chief Justice, and do not think that his decision in the slightest degree trenches upon Re Pollard (L. Rep. 2 P. C. C. 106). The contention of Mr. Keogh appears to be that after the magistrate, in the exercise of the summary power conferred on him by the statute, had decided that Mr. Rea was guilty of contempt, he (Mr. Rea) should then, though all this occurred in his presence and in open court, get a formal notification to show cause and until that had been done the magistrate could not have passed sentence. In my opinion, if it appeared plainly on the warrant that all the proceedings took place in the presence and hearing of Mr. Rea himself, it was unnecessary that there should be such an averment as that in the warrant. I may observe, too, that the statute points out how this statutable authority was to be exercised and says not one word of any requisition to the defendant to show cause. I do not for a moment deny that the warrant itself is not conclusive. It has always been held here that, either on habeas corpus or on motion for a certiorari, there is liberty to show that the Court below had no jurisdiction and that the mere assertion of jurisdiction by the Court below does not prove it. But the argument in the present case, that the defendant should have been called on to show cause, does not affect the question of jurisdiction; on the contrary, it admits the magistrate's jurisdiction and rests upon this, that in the exercise of it there had been irregularity. I am clearly of opinion that it is not a matter we ought to investigate on a motion of this kind.

Prisoner remanded to custody.

Warrant.

Freland.

HIGH COURT OF JUSTICE.

EXCHEQUER DIVISION.

(Before PALLAS, C.B., FITZGERALD and DowSE, B.B.)

Wednesday, Feb. 12, 1879.

LEFROY v. BURNSIDE. (a)

prosecu

Libel-Right to interrogate proprietor of a newspaper under 6 & 7 Will. 4, c. 76, sect. 19, in a civil action when a criminal tion is pending―Judicature Act (Ireland), 1877-40 & 41 Vict. c. 57, sect. 27, sub-sect. 7-Judicature Act (England), 1873, sect. 24, sub-sect. 7.

In an action for libel in a civil court, when a criminal prosecution is pending the plaintiff has a right, under the joint provisions of 6 & 7 Will. 4, c. 76, sect. 19, and 40 & 41 Vict. c. 57, sect. 27, sub-sect. 7 (Judicature Act, England, 1873, sect. 24, subsect. 7) to obtain discovery from the proprietor of a newspaper to be enforced by interrogatories.

ACTION for libel for certain newspaper articles which appeared

Saunders' Irish Daily News, of which it was alleged the defendant was proprietor. The article complained of imputed to the plaintiff improper conduct in obtaining and publishing certain documents in another newspaper, and was set out in the sixth paragraph of the statement of claim. A criminal prosecution had also been instituted against the defendant in respect of the same libel. The plaintiff now moved to compel the defendant to answer the following interrogatories:

First, Is it not a fact that in the said newspaper (the Saunders' Irish Daily News), published on the said 6th day of July, 1878, or some other, and what date an article appeared in the words and figures set forth in the sixth paragraph of the statement of claim in this action? If not how otherwise?

Secondly, Were not you the defendant, William Burnside, upon

(a) Reported by CECIL R. ROCHE, Esq., Barrister-at-Law.

and before the said 6th day of July, 1878, or some other and what date, the proprietor either alone or jointly with some other and what person or persons of the said newspaper?

The answer of the defendant to the said interrogatories was as follows: "I say that the plaintiff Edward Thomas Lefroy, at the assizes of oyer and terminer for the county of the city of Dublin, held at Green-street, in the said county of the city, in August last, preferred a bill of indictment against me and one William A. Murray, for having printed and published an alleged malicious and defamatory libel in the said Saunders' Irish Daily News and which said bill of indictment was found at the said assizes and was afterwards, on my application, removed by writ of certiorari into the Queen's Bench Division. And I further say that each of the said interrogatories tends to criminate me, and that my answer to either of said interrogatories would tend to criminate me, and for the reasons aforesaid I respectfully decline to answer either of said interrogatories; and I humbly submit to the Court that I am not bound to make any further or other answers to either of said interrogatories."

Sect. 19 of 6 & 7 Will. 4 enacts that discovery of the proprietor, printer, or publisher of any newspaper may be enforced by a party in an action for damages alleged to have been sustained by reason of any slanderous or libellous matter contained in any such newspaper respecting such person and the same section provides that any discovery so obtained shall not be made use of as evidence in any other proceeding against the defendants.

McLaughlin, Q.C., with him Houston, for the plaintiff.-The 32 & 33 Vict. c. 24, sect. 1, repeals in part the 6 & 7 Will. 4, c. 74, but re-enacts the 19th section. The 33 & 34 Vict. c. 99, without referring to the 32 & 33 Vict. c. 24, repealed the original Act so far as not already repealed, and left the law as it was previously under sect. 19 of 6 & 7 Will. 4, c. 76. See Dixon v. Enoch (L. Rep. 13 Eq. 394); Ramsden v. Briarley (W. N., 1875, 199.)

Porter, Q.C., with him Molloy, for the defendant, relied on the fact of the criminal proceedings being pending as an excuse for declining to answer the interrogatories. They cited: (Fisher v. Owen, 8 Ch. Div. 645; Allhusen v. Labouchere, 3 Q. B. Div. 654; Tapling v. Ward, 6 H. & N. 749.)

PALLES, C.B.-It is admitted that at the time of the coming into operation of our Judicature Act, the provisions of the 6 & 7 Will. 4, c. 76, s. 19, were in force as a substantive enactment of the 32 & 33 Vict. c. 24. At that time, therefore, a person alleging himself to have been libelled in a newspaper was entitled to appeal to the oath of the alleged proprietor upon the question whether he was in fact such proprietor. The mode and form in which this appeal to the oath of the alleged proprietor could be made was under the 6 & 7 Will. 4, c. 76, by filing a bill for discovery. It is unnecessary to consider whether, after the passing of our Common Law Procedure Act of 1856, the form

LEFROY

v.

BURNSIDE.

1879.

LibelPractice.