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1816.

WYATT

v.

GORE.

that the plaintiff, moreover, had erased the name of a person from the plans in the office of surveyorgeneral, who was settled, and had made improvements in a favourable location of land; and had declared the lot to be vacant ; and had obtained a grant of it for himself. That, by means of the said letters, the king confirmed the suspension, and revoked his appointment; that plaintiff was thereby prevented from enjoying another office; namely, the office of receiver-general of the said province. That the defendant falsely represented plaintiff to the secretary of state, as an ill-disposed person, who had been guilty of arbitrary and improper conduct,

The fourth count stated, that the defendant falsely composed a certain false libel, in the form of a letter, or address, to Lord Castlereagh, without any signature, imputing to the plaintiff criminality, and arbitrary and gross misconduct in his said office.

The fifth count stated ; that the defendant composed a certain false libel, imputing to the plaintiff treasonable and seditious conduct,

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The defendant pleaded first, not guilty. Secondly, as to the letters written to the secretary state, representing that the plaintiff, whilst surveyorgeneral, had erased the name of a person from the plan in the office, and had reported the lot to be vacant, and had obtained a deed or grant of it for himself,—he pleaded that the plaintill, whilst surveyorgeneral, did erase the name of a person from the plan

1816.

in the office ; wherefore the defendant sent such letters for the king's information as it was lawful for him to do, and for the causes aforesaid.

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Replication to the second plea, de injuriâ sua propria.

The circumstances were these :- The plaintiff was appointed surveyor-general of Upper Canada, in 1807, at which time the defendant was lieutenantgovernor of that province: the office of surveyorgeneral was holden at the will of the crown ; and the defendant, without assigning any cause, suspended the plaintiff from his employment. Mr. Wyatt left the island, to make application to government; but the suspension was not taken off; and he was finally removed from the office. General Gore continued in Canada, and the present action was brought; 1. For suspending Mr. Wyatt, maliciously, and without probable cause. 2. For false representations to the government, injurious to Mr. Wyatt, and which prevented bis restoration. 3. For a libel, charging Mr. Wyatt with disaffection to the government, and general misconduct in his office of surveyor-general in Upper Canada

In the course of the cause, the attorney-general of the province was called as a witness, and asked as to the nature of some communications made to him by the defendant relative to Mr. Wyatt's conduct.

Lens, serjeant, for the defendant, objected to

1816.

WYATT

this evidence. It would be highly indecent for & public officer to disclose what passed between him and the governor opon this occasion: it was a confidential communication.

Gore.

Best, contrà.-If the communications were in the course of office, and related to the internal affairs of the province, the witness would be privileged: but a governor has no greater right to libel an individual before his attorney-general than before another man. He sends for his attorneygeneral, not to consult him, but to defame Mr. Wyatt.

GIBBS, C. J.-The witness is not bound to answer; and, in delicacy, he will not answer such questions. Whether the conversations, in which reference was made to Mr. Wyatt's conduct as surveyor-general, were on public or private business, they ought not to be disclosed. The governor consults with a high legal officer on the state of his colony; what passes between them is confidential : no office of this kind could be executed with safety, if conversations between the governor of a distant province and his attorney-general, who is the only person upon whom such governor can lean for advice, were suffered to be disclosed.

The witness then produced a pamphlet, which the defendant delivered to him in the year 1809. In this pamphlet the libel in question was contained: it had not been generally circulated ; but copies were in the hands of the principal civil officers of the province. The witness was asked whether the

1816.

substance of what was stated in the pamphlet had not previously appeared in a newspaper, published in Upper Canada.

WYATT

GORE.

Best, serjeant.—This evidence is not admissible without producing the newspaper. Admitting the authority of some late cases, (which are acknowledged to have broken in upon the old law,) reports, circulated by numbers, may be given in evidence in this general manner. But written reports, or publications, must be produced : this was the first rule of evidence. A witness is asked the contents of a paper ; when, for any thing which appears to the contrary, the paper itself may be produced: and, if produced, the Jury are the only judges whether it contains the substance of the pamphlet.

Lens, serjeant, contrà..The defendant, in a case where he does not justify the libel, is permitted to mitigate the damages upon the general issue by evidence like the present. The rule in the Earl of Leicester v. Walter is agreeable to good sense ; and, whenever damages are sought in a like action, it is sound law. He cited likewise the case of Webster V. Baldwin, which was an action for a libel, tried in Hilary Term 1816, in this Court ; in which similar questions were put in mitigation of damages. Besides, where was the distinction between oral and written reports ? What was a newspaper but a diurnal report ?

GIBBS, C. J.I think the question may be puti The circumstances of this case are peculiar; and

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WYATT

I am of opinion that the defendant's counsel may ask the witness, whether, previous to the delivery of this pamphlet, he did not read, in a public newspaper, the substance of the libel charged in the declaration ?

GORE.

The pamphlet was produced : it charged Mr. Wyatt with gross misconduct, and an abuse of his powers as surveyor-general of the province.

Best, serjeant, abandoned the counts which charged the defendant with sending false representations to government; and admitted, that it was incumbent upon him to shew that there were no just and sufficient grounds for Mr. Wyatt's suspension ; that the defendant acted maliciously, and without probable cause, in suspending him. It is true the appointment of surveyor general was an office at will; and the governor had authority to suspend the plaintiff; but he must exercise bis authority without malice. Now malice, and the want of probable cause, were to be inferred from the publication of the pamphlet by governor Gore : this was a libel upon Mr. Wyatt; and it was evidence that the governor had acted from malicious motives.

Lens, serjeant, contrà-1. There is no proof of express malice. 2. Can the alleged libel, under the circumstances of the case, be said to have been published ?

Gibbs, C.J.-I am of opinion that the plaintiff has not proved the want of probable cause : he has given no evidence of acts or declarations that

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