Mr. Kerr moved that the rule be made absolute.

Mr. Windeyer rose, and said it was with great pain that he heard his learned friend had been instructed to make this rule absolute.  For he held in his hand an affidavit which he thought would render it necessary for the Court to take official notice of plaintiff's conduct.  (He then read the affidavit which went on to state his (plaintiff's) having been seen drunk frequently in the street, and of being convicted of indecency, &c., and continued).  Foster had sworn that he believed the paragraph had been written to excite him to a breach of the peace, whereas it was only intended as an illustration of the preceding sentiments.  Nothing had been reported except that which they were entitled to do; and for so doing Foster had threatened to horse-whip the defendant,  But he (Mr. W.) would contend that such an application was a piece of the utmost audacity - for an officer of the Court to come there under such circumstances, for a criminal information!  It was true a pitiful drunken creature of an attorney was contemptible enough, but what else did such a person deserve than pity and contempt?  (After reading the affidavit of the police officer, who proved the indecent exposure, he said) he would submit that, before an officer of the Court could ask fore the extraordinary exercise of its jurisdiction, he ought to have put in an exculpatory affidavit.  He, however, would leave the case in their hands, confident that they would consider it a case which could not be countenanced.

Mr. Kerr contended that nothing had been shown why the rule should not be made absolute, for if every thing stated had been true, still the publication was unjustifiable as had been held by the Chief Justice in Halden v. Stephens and Stokes.  What redress had a party libelled, if the libeller was allowed to turn round and say ``it is all true?"  none other than that of taking the law into his own hands.  It was no excuse to say, that he was an officer of the Court.  If they did not consider him a proper person to continue an officer, they could notice it in some other way.  But they (the Court) must not deny him redress  on that account, they must treat him the same as any other person.

Mr. Justice Burton - You need not be afraid we will treat the case otherwise.

Mr. Kerr then said - He would submit then they must deal with the case as they did with that of Halden.

The Chief Justice said - There had been no proceeding in that Court so decisive as to prevent them from exercising a sound discretion in this case.  They were, therefore, bound to act as a Grand Jury in all cases where the Attorney-General did not think proper to take up the matter.  They were, therefore, bound to act as a Grand Jury would, and he must say upon his oath as he sat there, that was such a case in which he would not find a bill; plaintiff had not thought proper to deny any part of the charges.  He did not deny that he had been convicted of disgracefully exposing his person in the public street, and he could not but say, that he considered this a most impudent application, and that it must be discharged with costs.

Mr. Justice Burton said - He was of the same opinion, for he considered that the publication was perfectly warranted.

Mr. Justice Kinchela was of opinion, that any party applying for such an information ought to come into Court with clean hands, plaintiff had not done so, and therefore he thought the rule should be discharged.