profits while they were occupied by the owner of the equity of redemption.

The case against the right of the defendant in error to recover in this case the rents and profits received by the owner of the equity of redemption is strengthened by sec. 323, ch. 4, title 1, Gen. Laws of Oregon, 1843-1872, which declares that "a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law."

This provision of the statute cuts up by the roots the doctrine of Moss v. Gallimore, ubi supra, and gives effect to the view of the American courts of equity that a mortgage is a mere security for a debt, and establishes absolutely the rule that the mortgagee is not entitled to the rents and profits until he gets possession under a decree of foreclosure. For if a mortgage is not a conveyance, and the mortgagee is not entitled to possession, his claim to the rents is without support. This is recognized by the Supreme Court of Oregon as the effect of a mortgage in that State. In Besser v. Hawthorn, 3 Ore. 129, 133, it was declared: "Our system has so changed this class of contracts that the mortgagor retains the right of possession and the legal title." See also Anderson v. Baxter, 4 Oreg. 105; Roberts v. Sutherlin, id. 219.

The case of the defendant in error cannot be aided by the stipulation in the defeasance of August 19, 1874, exacted by the mortgagee, that Goldsmith and Teal would, upon the default in the payment of the note secured by the mortgage, deliver to Hewett, the trustee, the possession of the mortgaged premises. That contract was contrary to the public policy of the State of Oregon, as expressed in the statute just cited, and was not binding on the mortgagor or his vendee, and although not expressly prohibited by law, yet like all contracts opposed to the public policy of the State, it cannot be enforced. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Marshall v. Balt. & Ohio R. Co., 16 How. 314: Meguire v. Corwine, 101 U. S. 108.

In any view of the case we are of opinion that the defendant in error was not entitled to receive the rents sued for in this action. As this conclusion takes away the foundation of the suit it is unnecessary to notice other assignments of error.

The judgment of the Circuit Court is reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.

LIBEL-PUBLICATION BY NEWSPAPER OF
PAPERS FILED IN COURT.

MASSACHUSETTS SUPREME JUDICIAL COURT,
JUNE, 27 1884.

COWLEY V. PULSIFER.

On proceedings for the disbarment of an attorney the peti-
tion, among others, included allegations, which unless
justified, would have been actionable. The petition was
filed, but it did not appear that it had ever been presented
to the court or docketed.
In an action against defendant, the owner of a newspaper, for
libel in publishing a report of the contents of the petition,
held, that the report, though fair and correct, was not
privileged.

James F. Pickering and Charles Crowley, for plaintiff.
Solomon Lincoln, for defendants.

HOLMES, J. This is an action against the owners and publishers of the Boston Daily Herald for a libel published in that newspaper. The alleged libel was a report of the contents of a petition for the removal of

the plaintiff from the bar. The report was fair and correct, but the petition included allegations which would be actionable unless justified. In their answer the defendants rely upon privilege alone. They do not set up the truth of the charges in the petition, and the main question raised by the plaintiff's exceptions is whether the publication was privileged as ruled by the court below. The petition had been presented to the clerk of the Supreme Judicial Court for the county of Middlesex in vacation; it had been marked by him, Filed February 23, 1883," and then, or subsequently, had been handed back to the petitioner; but it did not appear that it ever had been presented to the court or entered on the docket. We are of the opinion that the foregoing circumstances do not constitute a justification, and that the defendants do not bring themselves within the privilege admitted by the plaintiff to attach to fair reports of judicial proceedings, even if preliminary or ex parte. No binding authority has

been called to our attention which precisely determines this case, and we must be governed in our conclusion mainly by a consideration of the reason upon which admitted principles have been established, and the peculiar features of the proceeding which has been published.

We begin by recalling the familiar distinction between the privilege of the petitioner in respect of filing his petition and the privilege of the same or any other person in respect of subsequently 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. Lake v. King, 1 Saund. 120, 133; S. C., 1 Lev. 240; Webster v. Dobniet, Cro. Jao. 432, cited infra; Rex v. Creery, 1 M. & S. 273, 280; McGregor v. Thoraite, 3 B. & C. 24, 31, 35; Flind v. Pike, 4 id. 473, 481; Com. v. Blanding, 3 Pick. 304, 317. We therefore lay on one side all cases which only tend to show that the petitioner incurred no liability by handing his petition to the clerk, and by whatever publication that involved, and we shall assume for the purposes of this case that he incurred no liability by so doing.

The privilege set up by the defendant is not that which attaches to judicial proceedings, but that which attaches to fair reports of judicial proceedings. Now what is the reason for this latter? The accepted statement is that of Mr. Justice Lawrence, in Rex v. Wright,. 8 T. R. 293, 298: "Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceeding." See also Davison v. Duncan, 7 El. & Bl. 229, 231; Mason v. Walter, L. R., 4 Q. B. 73, 88; Com. v. Blanding, 3 Pick. 304, 314. The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. It used to be said sometimes that the privilege was founded on the fact of the court being open to the public. Patterson, J., in Stockdale v. Howard, 9 Ad. & E. 1, 212.

This no doubt is too narrow, as suggested by Lord Chief Justice Cockburn in Wason v. Walter, L. R., 4 Q. B. 73, but the privilege and the access of the public to the courts stand in reason upon common ground. Lewis v. Levy, El. Bl. & El. 537, 558. It 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 jus

tice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause a sufficient foundation may be laid for scattering any libel broadcast with impunity. See Sanford v. Bennett, 20 N. Y. 20, 27; Lewis v. Levy, ubi supra, and especially the reasoning in Barber v. St. Louis Dispatch Co., 3 Mo. App. 377.

We waive consideration of the tendency of a publication like the present to create prejudice and interfere with a fair trial. Barrows v. Bell, 7 Gray, 301, 312, 316; In re Cheltenham & Swansea Railway Carriage and Wagon Co., L. R., 8 Eq. 580; Tichborne v. Mostyn, L. R., 7 Eq. 55 n.; Read & Higginson's Case, 2 Atk. 469; S. C., nom. Roach v. Garran, 2 Dick. 794. Neither shall we discuss the question what limitations there are, if any, to the requirement that the proceeding must have been acted on and decided. Barrows v. Bell, ubi supra; Delegal v. Highley, 3 Bing. N. C. 950, 963. For apart from the distinction between what takes place in open court and the contents of papers filed in the clerk's office, it might be said that these considerations apply with equal force to a report of proceedings in court, published from day to day as they take place, and that nevertheless it has been held that reports might be so published, and it is not necessary to wait until a trial is completed. Lewis v. Levy, ubi supra. See Usell v. Hales, 3 C. P. D. 319, 325. The practice of publishing reports in this manner is universal with us, and we may concede that it might happen that the proceedings of the first day stopped with the reading of the pleadings, or in this case of the petition, and that a fair report under these circumstances would be privileged without considering whether a publication of the first day's proceedings could be made actionable by relation if the subsequent ones should be omitted. For the purposes of the present case it is enough to mark the plain distinction between what takes place in open court and that which is done out of court by one party alone, or more exactly, as we have already said, the coutents of a paper filed by him in the clerk's office. This distinction, although not established by them, derives an indirect sanction from the cases which have turned on the question whether the proceedings-for instance, the examination of a Lewis v. bankrupt-took place in a public court. Levy, ubi supra. See also Fleming v. Newton, 1 H. L. Cas. 363, 378.

It is further to be noticed that the language of Chief Justice Shaw in Barrows v. Bell, 7 Gray, 301, clearly implies that the privilege claimed by the defendants does not protect them. He says that a fair statement of the proceedings, "when they have been acted upon and decided, and made with an honest idea of giving useful information, and when the publication will not tend to obstruct the course of justice and interfere with a fair trial is not a libellous publication." In the English chancery it is held to be a contempt of court to publish a pleading of one party in a newspaper, or it would seem the whole proceedings, before the matIn re Cheltenham & ter has come on to be heard. Swansea Railway Carriage & Wagon Co., L. R., 8 Eq.

580; Bowd v. Russell, 46 L. J. (N. S.) Ch. 414, 416; Cann v. Cann, 3 Hare, 333; S. C., 2 Ves. Sr. 520; 2 Dechew, 792. A contempt of court cannot be privileged, and we see no reason to doubt that an action could be maintained for such a publication, nor do we see any reason for confining the liability to proceedings in equity. Bowden v. Russell, ubi supra. "If one exhibit a scandalous bill, if the court have jurisdiction of such matters, an action lies not; otherwise it is, if the court have not jurisdiction, or having it the party publish his bill abroad, the said bill being false." Weston v. Dobinet, Cro. Jac. 432. See Delegal v. Highley; Barbee v. St. Louis Dispatch Co., ubi supra. We have placed only a qualified reliance on the cases cited, because some of them were decided before the latest developments of the law of libel, and those on the question of contempt have been placed on grounds not perhaps convincing with regard to the present question, but they lend strong support to our decision.

It may be objected that our reasoning tacitly assumes that papers properly filed in the clerk's office are not open to the inspection of the public. We do not 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 to public inspection. A different conclusion might be drawn from a hasty reading of the Public Statutes, ch. 37. sec. 13, but the county records or files which are there ordered to be opened for public inspection and examination, and of which any person may take copies, are the records and files of the county, not of the courts of the Commonwealth within and for that county. We see no reason to suppose that the Public or General Statutes were intended entirely to change the scope of the original enactments which they embody. Those were the acts of 1851, ch. 161, and 1857, ch. 84, both of which will be seen on inspection to have no reference to the records of the courts. We have assumed for the purposes of this discussion that the petition was rightly filed, and that the defendants were entitled to any benefit which they might derive from that circumstance. But we do not mean to intimate any opinion one way or the other upon the question.

Exceptions sustained.

NOTE.-See 33 Am. Rep. 403; 19 id. 542; 31 Eng. R. 574. Newspaper reports of proceedings in courts of justice, if substantially correct and not garbled or partial, and made bona fide and without malice, are privileged. McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; Ruohs v. Backer, 6 Heisk. (Tenn.), 395; Ackerman v. Jones, 37 N. Y. Sup. Ct. 42; Edsall v. Brooks, 26 How. Pr. 426; 17 Abb. Pr. 221; 1 Rob. 29; Sanford v. Bennett, 24 N. Y. 20. See Saunders v. Baxter, 6 Heisk. (Tenn.) 369.

FOREIGN CONSUL DEFENDANT-JURISDICTION.

SUPREME COURT OF THE UNITED STATES.
APRIL 7, 1884.

BORS V. PRESTON.

In cases coming from the Circuit Courts, this court will determine from its own inspection of the record whether they are of the class excluded by statute from the cognizance of those courts; this although the question of jurisdiction is not raised by the parties.

The constitutional grant of original jurisdiction to this court of all cases affecting consuls does not prevent Congress from conferring original jurisdiction, in such cases, also upon the subordinate courts of the Union.

The jurisdiction of the Circuit Courts of the United States of suits by citizens against aliens is not defeated by the fact that the defendant is the consul of a foreign government.

The alienage of a defendant is not to be presumed from the mere fact that he is the consul, in this country, of a foreign government.

N error to the Circuit Court of the United States

the government has invested particular courts with jurisdiction in the premises.

We proceed then to inquire, whether under the Constitution and laws of the United States, a Circuit Court may, under any circumstances, hear and determine a suit against the consul of a foreign government; in other words, whether other courts have been invested with exclusive jurisdiction of such

Southern District New York. opius be

ion states the case.

George H. Forster, for plaintiff in error.

B. F. Tracy and Wm. C. Dellitt, for defendant in

error.

HARLAN, J. This action was brought in the Circuit Court of the United States for the Southern District of New York. The plaintiff, Preston, is a citizen of that State, while the defendant is the consul, at the port of New York, for the Kingdom of Norway and Sweden.

The object of the action is to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of merchandise. The answer denies the material allegations of the complaint, and in addition, by way of counter-claim, asks judgment against the plaintiff for certain sums. To the counter-claim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant.

The assignments of error question the jurisdiction of the Circuit Court, under the Constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government.

Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in a Circuit Court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is excluded from the jurisdiction of the Circuit Courts. In cases of which the Circuit Courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisious indicate, has except under special circumstances declined to express any opinion upon the merits on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this because the courts of the Union, being courts of limited jurisdiction, the presumption, in every stage of the cause, is that it is without their jurisdiction unless the contrary appears from the record. Grace v. American Insurance Co., 109 U. S. 283; Robertson v. Cease, 97 id. 646.

* *

The Constitution declares that "the judicial power of the United States shall extend * to all cases affecting ambassadors or other public ministers and consuls;" to controversies between citizens of a State and foreign citizens or subjects; that "in all cases affecting ambassadors, other public ministers and consuls, * ** the Supreme Court shall have original jurisdiction;" and that in all other cases previously mentioned in the same clause "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

The judiciary act of 1789 invested the District Courts of the United States with "jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls," except for offenses of a certain character; this court with " original, but not * * * in which a exclusive, jurisdiction of all suits consul or vice-consul shall be a party;" and the Circuit Courts with jurisdiction of civil suits in which an alien is a party. 1 Stat. 76-80. In this act we have an affirmance, by the first Congress-many of whose members participated in the convention which adopted the Constitution, and were therefore conversant with the purposes of its framers-of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight.

Very early after the passage of that act, the case of United States v. Ravara, 2 Dall. 297, was tried in the Circuit Court of the United States for the District of Pennsylvania, before Justices Wilson and Iredell of this court, and the district judge. It was an indictment against a consul for a misdemeanor of which, it was claimed, the Circuit Court had jurisdiction under the eleventh section of the judiciary act, giving Circuit Courts "exclusive cognizance of all crimes and offenses cognizable under the authority of the United States," except where that act "otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable therein." In behalf of the accused it was contended that this court, in virtue of the constitutional grant to it of original jurisdiction in all cases affecting consuls, had exclu

Much more therefore will we refuse to determine on the merits, and will reverse on the point of jurisdic-sive jurisdiction of the prosecution against him. Mr. tion, cases where the record shows affirmatively that they are of a class which the statute excludes altogether from the cognizance of the Circuit Courts. If this were not so it would be in the power of the parties by negligence or design to invest those courts with a jurisdiction expressly denied to them. To these considerations it may be added, that the exemption of the consul of a foreign government from suit in particular courts is the privilege, not of the person who happens to fill that office, but of the State or government he represents. It was so decided in Davis v. Packard, 7 Pet. 284. While practically it may be of no consequence whether original jurisdiction of suits against consuls of foreign governments is conferred

upon one court of the United States rather than another, it is sufficient that the legislative branch of

Justice Wilson and the district judge concurred in overruling this objection. They were of opinion that although the Constitution invested this court with original jurisdiction in cases affecting consuls, it was competent for Congress to confer concurrent jurisdiction, in those cases, upon such inferior courts as might, by law, be established. Mr. Justice Iredell dissented, upon the ground that the word original, in the clause of the Constitution under examination, meant exclusive. The indictment was sustained, and the defendant upon the final trial, at which Chief Justice Jay presided, was found guilty. He was subsequently pardoned on condition that he would surrender his commission and exequatur.

In United States v. Ortega, 11 Wh. 467. which was a criminal prosecution, in a Circuit Court of the United

States, for the offense of offering personal violence to a public minister, contrary to the law of nations and the act of Congress, one of the questions certified for decision was whether the jurisdiction conferred by the Constitution upon this court, in cases affecting ambassadors or other public ministers, and consuls, was not only original but exclusive of the Circuit Courts. But its decision was waived and the case determined upon another ground. Of that case it was remarked by Chief Justice Taney, in Gittings v. Crawford, Taney's Dec. 5, that an expression of opinion upon that question would not have been waived had the court regarded it as settled by previous decisions.

In Davis v. Packard, ubi supra, upon error to the court for the correction of errors of the State of New York, the precise question presented was whether, under the Constitution and laws of the United States, a State court could take jurisdiction of civil suits against foreign consuls. It was determined in the negative upon the ground that by the ninth section of the act of 1789, jurisdiction was given to the District Courts of the United States, exclusively of the courts of the several States, of all suits against consuls and vice-consuls, except for certain offenses mentioned in the act. The jurisdiction of the State courts was denied because-and no other reason jurisdiction had been given to the District Courts of the United States exclusively of the former courts; a reason which probably would not have been given had the court, as then organized, supposed that the constitutional grant of original jurisdiction to this court, in all cases affecting consuls, deprived Congress of power to confer concurrent original jurisdiction, in such cases, upon the subordinate courts of the Union. It is not to be supposed that the clause of the Constitution giving original jurisdiction to this court, in cases affecting consuls, was overlooked, and] therefore the decision, in that case, may be regarded as an affirmance of the constitutionality of the act of 1789, giving original jurisdiction in such cases, also to District Courts of the United States. And it is a significant fact, that in the decision in Davis v. Packard, Chief Justice Marshall concurred, although he had delivered the judgments in Marbury v. Madison, 1 Cr. 137, 821; Cohens v. Virginia, 6 Wh. 264, and Osborn v. United States Bank. 9 id. 738, some of the general expressions in which are not infrequently cited in support of the broad proposition that the jurisdiction of this court is made by the Constitution exclusive of every other court, in all cases of which by that instrument it is given original jurisdiction. It may also be observed that of the seven justices who concurred in the judgment in Davis v. Packard, five participated in the decision of Osborn v. United States Bank.

tion was carefully considered by Mr. Justice Nelson, who again held that the constitutional grant of original jurisdiction to this court in cases affecting consuls; the legislative grant in the act of 1789 to this court of original but not exclusive jurisdiction of suits in which a consul or vice-consul is a party; and the legislatiye grant of jurisdiction to the District Courts, exclusive of the State courts, of suits against consuls or vice-consuls, did not prevent the Circuit Courts, which had jurisdiction of suits to which an alien was a party, from taking cognizance of a suit brought by a citizen against an alien, albeit the latter was, at the time, the consul of a foreign government.

In Gittings v. Crawford, Taney's Dec. 1, which was a suit upon a promissory note brought in the District Court of the United States for Maryland, by a citizen of that State against a consul of Great Britain, the point was made in the Circuit Court on writ of error that by the Constitution of the United States this court had exclusive jurisdiction of such cases.

The former adjudications of this and other courts of the Union were there examined, and the conclusion reached-and in that conclusion we concur-that as Congress was not expressly prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States, neither was assigned-public policy nor convenience would justify the court in implying such prohibition, and upon such implication, pronounce the act of 1789 to be unconstitutional and void. Said Chief Justice Taney: "If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter." Taney's Dec. 9. After alluding to the fact that the position of consul of a foreign government is sometimes filled by one of our own citizens, he observes: "It could hardly have been the intention of the statesmen who framed our Constitution to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul in any part of the United States; that consul too being often one of our own citizens."

In St. Luke's Hospital v. Barclay, 3 Blatchf. 259, which was a suit in equity in the Circuit Court of the United States for the Southern District of New York, the question was distinctly raised whether the consular character of the, alien defendant exempted him from the jurisdiction of the Circuit Courts. The jurisdiction of the Circuit Court was maintained, the opinion of the court being that the jurisdiction of the District Courts was made by statute exclusive only of the State courts, and that under the 11th section of the act of 1789, the defendant being an alien-no exception being made therein as to those who were consuls-was amenable to a suit in the Circuit Court brought by a citizen. Subsequently the question was reargued before Mr. Justice Nelson and the district judge, and the proposition was pressed that the defendants could not be sued except in this court or in some District Court. But the former ruling was sustained.

In Graham v. Stucken, 4 Blatchf. 50, the same ques

Such was the state of the law when the Revised Statutes of the United States went into operation. By section 563 it is provided that "the District Courts shall have jurisdiction * * * of all suits against consuls or vice-consuls," except for certain offenses; by sectiou 629, that "the Circuit Courts shall have original jurisdiction" of certain classes of cases, among which are civil suits in which an alien is a party; by section 687, that this court shall have "original but not exclusive jurisdiction of all suits * ǝk * in which a consul or vice-consul is a party; and by section 711, that the jurisdiction vested in the