Chapter VI: Defamation (3)

Actions for libel and slander have always been subject to one principle: defamatory statements, although they may be actionable on ordinary occasions, nevertheless are not actionable libel and slander when they are made upon certain occasions. It is not that these statements are libel or slander subject to a defence, but the principle is that defamatory statements, if they are made on a privileged occasion, from the very moment when they are made, are not libel or slander of which the law takes notice. Many privileged occasions have been recognized. The occasion, with which we now have to deal, is that a defamatory statement has been made either in words or by writing in the course of an inquiry regarding the administration of the law. It is beyond dispute that statements made under these circumstances are privileged as to some persons, and it has been admitted by the plaintiff’s counsel that one set of these persons are advocates: it could not be denied that advocates are privileged in respect of at least some defamatory statements made by them in the course of an inquiry as to the administration of the law. It was admitted that so long as an advocate acts _bona fide_ and says what is relevant, owing to the privileged occasion, defamatory statements made by him do not amount to libel or slander, although they would have been actionable if they had not been made whilst he was discharging his duty as an advocate. But it was contended that an advocate cannot claim the benefit of the privilege unless he acts _bona fide_, that is, for the purpose of doing his duty as an advocate, and unless what he says is relevant. That is the question which we now have to determine. Certain persons can claim the benefit of the privilege which arises as to everything said or written in the course of an inquiry as to the administration of the law, and without making an exhaustive enumeration I may say that those persons are judges, advocates, parties, and witnesses. There have been decisions with regard to three of these classes, namely, judges, parties, and witnesses, and it has been held that whatever they may have said in the course of an inquiry as to the administration of the law, has been said upon a privileged occasion, and that they are not liable to any action for libel or slander. But it has been suggested that only some of these classes of persons can successfully claim the privilege of the occasion, and those are judges, parties, and witnesses, who make statements without malice and relevantly; and that those judges, parties, and witnesses, who either speak or write without relevancy and with malice, cannot successfully claim the privilege of the occasion. I am inclined to think that with regard to these classes of persons the law has not always been stated in the same manner by the judges, and some judges have a strong objection to carry the privilege beyond the point to which they are obliged by authority to carry it; they are disinclined to admit the existence of the privilege. Other judges are inclined to carry the privilege to its full extent, and we must see what is the doctrine which has been finally adopted. With regard to witnesses, the chief cases are, Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, and Henderson _v._ Broomhead, 4 H. & N. 569, and with regard to witnesses, the general conclusion is that all witnesses speaking with reference to the matter which is before the court—whether what they say is relevant or irrelevant, whether what they say is malicious or not—are exempt from liability to any action in respect of what they state, whether the statement has been made in words, that is, on _viva voce_ examination, or whether it has been made upon affidavit. It was at one time suggested that although witnesses could not be held liable to actions upon the case for defamation, that is, for actions for libel and slander, nevertheless they might be held liable in another and different form of action on the case, namely, an action analogous to an action for malicious prosecution, in which it would be alleged that the statement complained of was false to the knowledge of the witness, and was made maliciously and without reasonable or probable cause. This view has been supported by high authority; but it seems to me wholly untenable. If an action for libel or slander cannot be maintained, how can such an action as I have mentioned be maintained, it being in truth an action for defamation in an altered form? Every objection and every reason, which can be urged against an action for libel or slander, will equally apply against the suggested form of action. Therefore, to my mind, the best way to deal with the suggested form of action is to dispose of it in the words of Crompton, J., in Henderson _v._ Broomhead, where he said: “The attempts to obtain redress for defamation having failed, an effort was made in Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair.” Nothing could be more strong, nothing could show more clearly his entire disbelief in the possibility of supporting that new form of action. The answer to the suggested form of action was that during the hundreds of years which had elapsed such an action never had been sustained. No reported case from the time of the commencement of the common law until the present day can be found in which the suggested form of action has been maintained, and yet it is impossible to suppose that opportunities for bringing actions of that kind and of carrying them to a conclusion have not occurred again and again. However, the question is not as to the form of the action, but whether an action of any kind will lie for defamation uttered in the course of a judicial proceeding. Crompton, J., in Henderson _v._ Broomhead, also said: “No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. Cresswell, J., pointed out in Revis _v._ Smith, 18 C. B. 126, that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result, if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court.” It is there laid down that the reason for the rule with regard to witnesses is public policy. In Scott _v._ Stansfield it was held that all judges, inferior as well as superior, are privileged for words spoken in the course of a judicial proceeding, although they are uttered falsely and maliciously and without reasonable or probable cause. The ground of the decision was that the privilege existed for the public benefit: of course it is not for the public benefit that persons should be slandered without having a remedy; but upon striking a balance between convenience and inconvenience, between benefit and mischief to the public, it is thought better that a judge should not be subject to fear for the consequences of anything which he may say in the course of his judicial duty. Therefore the cases of both witnesses and judges fall within the rule as to privileged occasions, notwithstanding it may be proved that any defamatory words spoken by them were uttered from an indirect motive and to gratify their own malice. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q. B. 255, it was assumed for the purposes of the decision, that the defendant had been guilty of both falsehood and malice; nevertheless it was held that no action would lie against him for statements made by him as a witness. The ground of the decision was no doubt that a witness in giving his evidence should not be afraid of being sued for anything that he might say. A similar view of the law was taken in Seaman _v._ Netherclift; and the same rule has been applied to the parties. If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes—judge, witness, and counsel—it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel’s position is one of the utmost difficulty. He is not to speak of that which he knows: he is not called upon to consider, whether the facts with which he is dealing are true or false. What he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness. To my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting _bona fide_, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harrassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct. In Rex _v._ Skinner, Lofft, 55, Lord Mansfield, a judge most skilful in enunciating the principles of the law, treated a counsel as standing in the same position as a judge or a witness. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q. B. 255, at pp. 263, 264, 268, a most careful judgment was delivered on behalf of all the judges in the Exchequer Chamber, and the opinion of Lord Mansfield was cited and adopted. If the authority of these two cases is to be followed, counsel are equally protected with judges and witnesses. I will refer to Kennedy _v._ Hilliard, 10 Ir. C. L. Rep. N. S. 195, and in that case Pigott, C. B., delivered a most learned judgment, in the course of which he said: “I take this to be a rule of law, not founded (as is the protection in other cases of privileged statements) on the absence of malice in the party sued, but founded on public policy, which requires that a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.” 10 Ir. C. L. Rep., at p. 209. Into the rule thus stated the word “counsel” must be introduced, and the rule may be taken to be the rule of the common law. That rule is founded upon public policy. With regard to counsel, the questions of malice, _bona fides_, and relevancy, cannot be raised; the only question is, whether what is complained of has been said in the course of the administration of the law. If that be so, the case against a counsel must be stopped at once. No action of any kind, no criminal prosecution, can be maintained against a defendant, when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry, that is, an inquiry before any court of justice into any matter concerning the administration of the law.

I am of opinion that the rule of law is such as I have pointed out, that it ought to be applied in the present case, and therefore that this action cannot be maintained.

From our judgments it is obvious that we dissent from the opinion of Lord Denman, C. J., expressed by him at Nisi Prius in Kendillon _v._ Maltby, Car. & M. 402; 2 M. & R. 438.

_Appeal dismissed._[457]

SEAMAN _v._ NETHERCLIFT
IN THE COURT OF APPEAL, DECEMBER 15, 1876.
_Reported in 2 Common Pleas Division, 53._

Appeal from the decision of the Common Pleas Division, ordering
judgment to be entered for the defendant. 1 C. P. D. 540.

Claim: That defendant said of a will, to the signature of which the
plaintiff was a witness, “I believe the signature to the will to be a
rank forgery, and I shall believe so to the day of my death,” meaning
that the plaintiff had been guilty of forging the signature of the
testator, or of aiding and abetting in the forgery.

Defence: That defendant spoke the words in the course of giving his
evidence as a witness on a charge of forgery before a magistrate.

Reply: That the words were not _bona fide_ spoken by defendant as a
witness, or in answer to any question put to him as a witness, and he
was a mere volunteer in speaking them for his own purposes otherwise
than as a witness and maliciously and out of the course of his
examination.[458]

COCKBURN, C. J. The case is, to my mind, so abundantly clear, and I
believe to the minds of my learned brothers, that I think we ought not
to hesitate to at once pronounce our decision.

The plaintiff brings his action against the defendant for slander,
alleged to have been uttered on the occasion of a prosecution for
forgery before a magistrate of the city of London. The defence set up
is: “True, I did utter the words imputed to me, but I spoke them when
I was a witness in a case in which I was called as a witness.” The
plaintiff’s answer to that is, “Yes, you were called as a witness, but
you spoke these words when you were no longer giving evidence, and not
only knowing them to be false, but also not in the inquiry, and dehors
altogether the subject-matter of the inquiry, for your own purpose of
maliciously defaming me.” At the trial before Lord Coleridge it
appeared that in the Probate suit of Davies _v._ May the defendant had
been examined, as an adept, to express his opinion as to the
genuineness of a signature to a will, and he gave it as his opinion
that the signature was a forgery. The president of the court, in
addressing the jury, made some very strong observations on the
rashness of the defendant in expressing so confident an opinion in the
face of the direct evidence. Soon afterwards, on a prosecution for
forgery before the magistrate, the defendant was called as an adept by
the person charged, when he expressed an opinion favorable to the
genuineness of the document. He was then asked by the counsel for the
prosecution whether he had been a witness in the suit of Davies _v._
May. He answered, “Yes.” And he was then asked, “Did you read a report
of the observations which the presiding judge made on your evidence?”
He again said, “Yes.” And then the counsel stopped. I presume the
circumstances of the trial were well known, and the counsel thought he
had done enough. The defendant, the witness, expressed a desire to
make a statement. The magistrate told him he could not hear it.
Nevertheless the defendant persisted and made the statement, the
subject-matter of this action of slander.

On the proof of these facts Lord Coleridge reserved leave to the
defendant to move to enter judgment, if the court should be of opinion
that there was no evidence on behalf of the plaintiff which ought to
be left to the jury. It occurred to him, however, that it would be as
well to take the opinion of the jury, and they found that the
replication was true, viz., that the words were spoken, not as a
witness in the course of the inquiry, but maliciously for his own
purpose, that is, with intent to injure the plaintiff. Upon these
findings judgment was entered for the plaintiff, leave being again
reserved to enter judgment for the defendant, and the Court of Common
Pleas gave judgment for the defendant.

Now, if the findings of the jury had been founded upon evidence by
which they could have been supported, I might have had some hesitation
about the decision. But they were not; and we are asked to come to a
conclusion contrary to what has been established law for nearly three
centuries.

If there is anything as to which the authority is overwhelming it is
that a witness is privileged to the extent of what he says in course
of his examination. Neither is that privilege affected by the
relevancy or irrelevancy of what he says; for then he would be obliged
to judge of what is relevant or irrelevant, and questions might be,
and are, constantly asked which are not strictly relevant to the
issue. But that, beyond all question, this unqualified privilege
extends to a witness is established by a long series of cases, the
last of which is Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, after
which to contend to the contrary is hopeless. It was there expressly
decided that the evidence of a witness with reference to the inquiry
is privileged, notwithstanding it may be malicious; and to ask us to
decide to the contrary is to ask what is beyond our power. But I agree
that if in this case, beyond being spoken maliciously, the words had
not been spoken in the character of a witness or not while he was
giving evidence in the case, the result might have been different. For
I am very far from desiring to be considered as laying down as law
that what a witness states altogether out of the character and sphere
of a witness, or what he may say dehors the matter in hand, is
necessarily protected. I quite agree that what he says before he
enters or after he has left the witness-box is not privileged, which
was the question in the case before Lord Ellenborough. Trotman _v._
Dunn, 4 Camp. 211. Or if a man when in the witness-box were to take
advantage of his position to utter something having no reference to
the cause or matter of inquiry in order to assail the character of
another, as if he were asked, “Were you at York on a certain day?” and
he were to answer, “Yes, and A. B. picked my pocket there;” it
certainly might well be said in such a case that the statement was
altogether dehors the character of witness, and not within the
privilege.

If, therefore, the findings of the jury, that the defendant had ceased
to be a witness when he spoke the words, were justified by the
evidence, I should hesitate before I decided in his favor. But I think
the defendant was entitled to judgment on the first reservation. There
was no evidence to go to the jury upon the plaintiff’s case. What the
defendant said was said in his character of witness; for there can be
no doubt that the words were spoken in consequence of the question put
to him by counsel for the prosecution, the object and effect of the
cross-examination having been to damage his credibility as a witness
before the magistrate, and of this the witness was conscious. The
counsel, having put the question, stops; and if there had been counsel
present for the prisoner who had re-examined the witness, he would
have put the proper questions to rehabilitate him to the degree of
credit to which he was entitled. That such questions would have been
relevant I cannot bring myself for a moment to doubt, relating as they
do to the credibility of the witness, which is part of the matter of
which the magistrate has to take cognizance. That being so, the
witness himself, who is sworn to speak the whole truth, is properly
entitled, not only with a view to his own vindication, but in the
interest of justice, to make such an observation in explanation of his
former answer as is just and fair under the circumstances. That is
what the defendant did. The sitting magistrate having allowed the
disparaging question to be put and answered, ought not to have
interfered to prevent the defendant from giving an explanation. I
think the statement, coming immediately after the damaging question
had been put to him, must be taken to be part of his testimony
touching the matter in question, as it affects his credibility as a
witness in the matter as to which he was called. It was given as part
of his evidence before he had become divested of his character of
witness; and but for the question of the opposite counsel he never
would have made the statement at all.

As to the finding of malice, it is true that what the defendant said
might possibly have the effect of damaging the plaintiff’s character;
but can any one suppose that the defendant had this in his mind when
he spoke, or that he intended to injure the plaintiff? He thought only
of his own credit as a witness, which had been attacked. He spoke, on
the impulse of the moment, no doubt very foolishly; and it was
probably his foolish persistence in maintaining the same attitude and
setting up his own opinion against the positive testimony of the other
witnesses that prejudiced the jury against him, and led them to return
the findings they did, founded, in reality, upon no evidence at all.
In my opinion, the Lord Chief Justice should have nonsuited the
plaintiff, which is the conclusion at which the Court of Common Pleas
ultimately arrived; for there really was no evidence that the
defendant was speaking otherwise than as a witness and relevantly to
the matters in issue, because relevantly to his own character and
credibility as a witness in the matter. That being so, even if express
malice could have been properly inferred from the circumstances, the
case of Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, conclusively
decides that malice has ceased to be an element in the consideration
of such cases, unless it can be shown that the statement was made not
in the course of giving evidence, and therefore not in the character
of a witness. A long series of authorities, from the time of Elizabeth
to the present time, has established that the privilege of a witness
while giving evidence is absolute and unqualified. Allardice _v._
Robertson, 1 Dow, N. S. 495, 515, was relied upon by Mr. Chambers.
That was the case of an action against a magistrate for words spoken
on the bench, and Lord Wynford expressly distinguishes the two cases,
and says that the privilege of a judge of the superior courts does not
apply to the judge of an inferior court; and that in the case of the
latter the privilege is not absolute and unqualified, and that a
“subordinate judge” would be liable to an action if malice were
proved. It does not, therefore, touch the present case; and as to a
witness speaking with reference to the subject-matter of the issue, it
is clear that the privilege is unqualified.

The judgment of the Common Pleas Division must, therefore, be
affirmed.

BRAMWELL, J. A. I am of the same opinion. The judgment of the Common
Pleas affirmed two propositions. First, that what the defendant said
was said as a witness, and was relevant to the inquiry before the
magistrate; secondly, that, that being so, the Lord Chief Justice
should have stopped the trial of the action by nonsuiting the
plaintiff.

As to the first proposition, I am by no means sure that the word
“relevant” is the best word that could be used; the phrases used by
the Lord Chief Baron and the Lord Chancellor in Dawkins _v._ Lord
Rokeby, Law Rep. 7 H. L., at p. 744, would seem preferable, “having
reference,” or “made with reference to the inquiry.” Now, were the
judges of the Common Pleas Division right in holding that this
statement of the defendant had reference to the inquiry? I think that
they were. There can be no doubt that the question put by the
cross-examining counsel ought not to have been allowed: “Have you read
what Sir James Hannen is reported to have said as to your evidence in
Davies _v._ May?” What Sir James Hannen had said in a former case was
not evidence. It was, therefore, an improper question, and the answer
to it, if untrue, would not have subjected the witness to an
indictment for perjury. But the question having been put, and the
answer having been in the affirmative—and the question being, as Lord
Coleridge observed, “ingeniously suggestive,” viz., that the way the
defendant had been dealt with on the former occasion did not redound
to his credit as a witness—the defendant insisted on making in
addition the statement complained of. He did so, in my opinion, very
foolishly. It would have been better to have been satisfied with
retaining his own opinion without setting it up in direct opposition
to the positive testimony of eye-witnesses. But he foolishly, as I
think, and coarsely exclaimed, “I believe that will to be a rank
forgery, and shall believe so to the day of my death.” Suppose after
he had said “yes,” he had added in a decent and becoming manner, “and
I am sorry Sir James Hannen said what he did, for I took great pains
to form my own opinion, and I shall always retain it, as I still think
it right.” Would not that have had reference to the inquiry before the
magistrate? And would it not have been reasonable and right that the
witness should have added that statement in justification of himself?
Surely, yes. Mr. Clarke said he was prepared to maintain that as long
as a witness spoke as a witness in the witness-box, he was protected,
whether the matter had reference to the inquiry or not. I am reluctant
to affirm so extreme a proposition. Suppose while the witness is in
the box, a man were to come in at the door, and the witness were to
exclaim, “That man picked my pocket.” I can hardly think that would be
privileged. I can scarcely think a witness would be protected for
anything he might say in the witness-box, wantonly and without
reference to the inquiry. I do not say he would not be protected. It
might be held that it was better that everything a witness said as a
witness should be protected, than that witnesses should be under the
impression that what they said in the witness-box might subject them
to an action. I certainly should pause before I affirmed so extreme a
proposition, but without affirming that, I think the words “having
reference to the inquiry” ought to have a very wide and comprehensive
application, and ought not to be limited to statements for which, if
not true, a witness might be indicted for perjury, or the exclusion of
which by the judge would give ground for a new trial; but ought to
extend to that which a witness might naturally and reasonably say when
giving evidence with reference to the inquiry as to which he had been
called as a witness. Taking that view, I think the first proposition
is established, that the statement of the defendant was made as
witness and had reference to the inquiry.

As to the second proposition, that, if the first be made out, no
inquiry can be gone into as to whether the statement was false or
malicious or as a volunteer, we are bound by authority. The case of
Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, is directly in point,
and binding upon us even if we disliked the decision. Mr. Chambers has
not attempted to distinguish that case except on the ground that the
inquiry in that case was before a military court. But it is clearly
not distinguishable on that ground. The learned Lords determined that
what is true of a civil tribunal is true of a military court of
inquiry; and they affirmed most distinctly the proposition that if the
evidence has reference to the inquiry, the witness is absolutely
privileged. There is also the case in the Court of Error of Henderson
_v._ Broomhead, 4 H. & N. 569, which is precisely to the same effect,
and undistinguishable from the present case.

I am, therefore, of opinion that the judgment of the Common Pleas
Division was right, and must be affirmed.

_Judgment affirmed._[459]

WHITE _v._ CARROLL
COURT OF APPEALS, NEW YORK, MARCH 18, 1870.
_Reported in 42 New York Reports, 161._

SUTHERLAND, J.[460] On the trial of this action, before Mr. Justice Potter and a jury at the circuit, it appeared, that in 1858 and 1859, a proceeding was going on before the surrogate of Montgomery county in which the contested point or question was the testamentary capacity of one Jay Phillips; that the plaintiff and the defendant were both at the time, and for some years previously had been, practising as physicians at Amsterdam, Montgomery county, the plaintiff as a homœopathic physician, and the defendant as an allopathic physician; that both had been sworn as witnesses, and testified in the proceedings before the surrogate, the defendant some time after the plaintiff; that on the examination of the defendant as such witness, he was asked whether any other physician was in attendance on Jay Phillips, at the time he was attending him, and that he answered: “Not as I know of.” That he was then asked: “Did not any physician attend him at the time he was at Mrs. Moore’s, when you did not?” That to this question, the defendant answered: “Not as I know of; I understand he had a quack, I would not call him a physician; I understood that Dr. White, as he is called, had been there.” That this evidence was reduced to writing by the surrogate, and filed in the surrogates’ office; and thereupon this action was brought, the complaint in which contains two counts, one for libel, or for words written; and the other for slander, or for words spoken.

No point was made on the trial of the action, that the words alleged in the complaint had not been proved to have been spoken by the defendant, but a motion was made on his part to dismiss the complaint, substantially upon the ground that the words spoken by the defendant were not actionable, because they were spoken on his examination as a witness, and were spoken as pertinent and responsive to the questions asked him.

Justice Potter denied the motion to dismiss the complaint, and the defendant excepted.

In submitting to the jury the question, “whether the defendant, at the time he so testified and used the words in question, believed the words so used by him were relevant or pertinent to the question then on trial,” Justice Potter charged the jury as follows: “That if the jury believed, from all the circumstances proved, from the questions put to him, and from his manner of answering, and from the answers themselves, that he testified in good faith, or in the belief that his answers were pertinent and relevant, then the law protected him in what he said; it was privileged, and their verdict should be for the defendant. That if, on the contrary, they should believe from this evidence, that the defendant, though testifying at the time as a witness, and as such entitled to the protection of the law, in so using the words proved, was actuated by malice; that he used the words for the mere purpose of defaming the plaintiff, then the law withdrew the protection it would otherwise have afforded him, and he became amenable to the consequences of uttering the slander, or of publishing the libel.”

There is certainly some doubt whether the defendant’s exception which he claims applies to this part of the charge, was sufficiently specific or definite to raise the question as to its correctness; but I shall assume that it was; and I shall also assume, in view of what I have said preliminarily, as the counsel for the defendant assumed on the argument, and assumes in his points, that the only material questions presented by this appeal, are those presented by the two exceptions referred to.

Now, as to the first, it is perfectly clear, that the question, whether the defendant was protected under the circumstances, was not a question of law for the court, but was a question of fact for the jury. It was really a question of conduct, of motive, of good faith and honest purpose, or of bad faith and malicious purpose.

The question was, whether the defendant did, or did not, avail himself of the occasion to maliciously answer the questions put to him as a witness, in the way he did.

This question was most emphatically a question for the jury; and, I think it was submitted to the jury as favorably for the defendant as he had a right to expect or ask.

It is true, that in submitting it to the jury, Justice Potter assumed that the defendant, when he answered the questions as he did, knew what the question in the proceeding before the surrogate was; but Justice Potter had a right to assume this under the circumstances.

I think the judgment should be affirmed, with costs.

All concur for affirmance.

_Judgment affirmed._[461]

RICE _v._ COOLIDGE
SUPREME JUDICIAL COURT, MASSACHUSETTS, DECEMBER 1, 1876.
_Reported in 121 Massachusetts Reports, 393._

MORTON, J. This is an action of tort. The principal question raised by the demurrer is, whether the plaintiff’s declaration states any legal cause of action. Each count alleges, in substance, that a proceeding for a divorce was pending in the courts of the State of Iowa, between Joseph S. Coolidge and Mary L. Coolidge, in which the latter alleged that the said Joseph S. Coolidge had been guilty of adultery with the plaintiff; that the defendants conspired together and with the said Mary L. Coolidge to procure and suborn witnesses to falsely testify in support of said charges of adultery; and that the defendants, in pursuance and execution of said conspiracy, did procure and suborn certain witnesses named, to testify in said divorce suit, and to falsely swear to criminal sexual intercourse between the plaintiff and said Joseph S. Coolidge, and between the plaintiff and other persons, and to various other acts and things which, if believed, would tend to bring disgrace and infamy upon the plaintiff.

Three of the counts also allege that the defendants, in pursuance and execution of the conspiracy, published or caused to be published a printed pamphlet in which the false testimony of such witnesses was repeated, and made the pretext for false and malicious charges upon the plaintiff’s character and good name.

The gist of the plaintiff’s case is that the defendants have suborned witnesses to falsely swear to defamatory statements concerning her, and have done other connected acts in pursuance of a scheme or plan to defame her. The alleged conspiracy or combination is not one of the elements of the cause of action. That is not created by the conspiracy, but by the wrongful acts done by the defendants to the injury of the plaintiff. If the acts charged, when done by one alone, are not actionable, they are not made actionable by being done by several in pursuance of a conspiracy. Wellington _v._ Small, 3 Cush. 145; Parker _v._ Huntington, 2 Gray, 124; Bowen _v._ Matheson, 14 Allen, 499.

The question is presented, therefore, whether the plaintiff can maintain an action of tort, in the nature of the common-law action on the case, against the defendants for suborning witnesses to falsely swear to defamatory statements concerning the plaintiff in a suit in which neither of the parties to this suit was a party.

It requires no argument to show that the acts charged as done by the defendants, if proved, are a great wrong upon the plaintiff. It is a general rule of the common law that a man shall have a remedy for every injury. The plaintiff should have a remedy for the injury done to her by the defendants, unless there are some other rules of law, or some controlling considerations of public policy, which take the case out of this rule.

The defendants contend that the witnesses who uttered the defamatory statements are protected from an action, because they were statements made in the course of judicial proceedings, and that therefore a person, who procured and suborned them to make the statements, is not liable to an action.

It seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings. Henderson _v._ Broomhead, 4 H. & N. 569; Revis _v._ Smith, 18 C. B. 126; Dawkins _v._ Rokeby, L. R. 8 Q. B. 255, and cases cited; affirmed, L. R. 7 H. L. 744; Seaman _v._ Netherclift. The same doctrine is generally held in the American courts, with the qualification, as to parties, counsel, and witnesses, that, in order to be privileged, their statements made in the course of an action must be pertinent and material to the case. White _v._ Carroll, Smith _v._ Howard, 28 Iowa, 51; Barnes _v._ McCrate, 32 Maine, 442; Kidder _v._ Parkhurst, 3 Allen 393; Hoar _v._ Wood, 3 Met. 193. In the last-cited case, Chief Justice Shaw says: “We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry.”

We assume, therefore, for the purposes of this case, that the plaintiff cannot maintain an action against the witnesses in the suit in Iowa, for their defamatory statements, though they were false. But it does not follow that she may not maintain an action against those who, with malice and intent to injure her, procured and suborned those witnesses to testify falsely.

The reasons why the testimony of witnesses is privileged are that it is given upon compulsion and not voluntarily, and that, in order to promote the most thorough investigation in courts of justice, public policy requires that witnesses shall not be restrained by the fear of being vexed by actions at the instance of those who are dissatisfied with their testimony.[462] But these reasons do not apply to a stranger to the suit, who procures and suborns false witnesses, and the rule should not be extended beyond those cases which are within its reasons.

The argument, that an accessory cannot be held civilly liable for an act for which no remedy can be had against the principal, is not satisfactory to our minds. The perjured witness and the one who suborns him are joint tort-feasors, acting in conspiracy or combination to injure the party defamed. The fact that one of them is protected from a civil suit by a personal privilege does not exempt the other joint tortfeasor from such suit. A similar argument was disregarded by the court in Emery _v._ Hapgood, 7 Gray, 55, where it was held that the defendant, who instigated and procured an officer to arrest the plaintiff upon a void warrant, was liable to an action of tort therefor, although the officer who served the warrant was protected from an action, for reasons of public policy.

The defendants rely upon the cases of Bostwick _v._ Lewis, 2 Day, 447, and Smith _v._ Lewis, 3 Johns. 157. But those cases turn upon a principle which does not apply in the case at bar. The facts in those cases were as follows: Lewis brought an action in Connecticut against several defendants, in which he prevailed. Afterwards Bostwick, one of the defendants in the original action, brought an action in Connecticut against Lewis, for suborning a witness in that action; and Smith, another of the defendants, brought a similar action in New York. It was held in each case that the action could not be maintained, because, in the language of Mr. Justice Kent, it was “an attempt to overhaul the merits” of a former suit. The case of Dunlap _v._ Glidden, 31 Maine, 435, is to the same effect. Although the parties to a former action cannot retry its merits, while a judgment therein is in force and unreversed, yet any person who was not a party to the action, or in privity with a party, may in a collateral action impeach the judgment and overhaul the merits of the former action. Those cases, therefore, are not decisive of the case at bar.[463]

The defendants argue that an action of this nature ought not to be maintained, because the plaintiff therein might, by the testimony of a single witness, prove that a witness in another action had committed perjury. The rule of law, that a man cannot be convicted of perjury upon the unaided testimony of one witness, is a rule applicable only to criminal proceedings. The argument may go to show that the rule ought to be extended to civil cases in which perjury is charged against a witness, but it does not furnish a satisfactory reason why a plaintiff should be altogether deprived of a remedy for an injury inflicted upon him.

It is also urged, as an argument against the maintenance of this action, that it is a novelty. The fact that an action is without a precedent would call upon the court to consider with care the question whether it is justified by correct principles of law; but if this is found, it is without weight. In answer to the same argument, Lord Chief Justice Willes said: “A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy, but there must be new facts, in every special action on the case.” Winsmore _v._ Greenbank, Willes, 577.

Upon a careful consideration of the case, we are of opinion that there are no rules of law and no reasons of public policy which deprive the plaintiff of her remedy for the wrong done her by the defendants by suborning witnesses to defame her character.[464]

_Demurrer overruled._

RYALLS _v._ LEADER
IN THE EXCHEQUER, MAY 26, 1866.
_Reported in Law Reports, 1 Exchequer, 296._

Declaration on a libel published of the plaintiff by the defendants, in a newspaper called the “Sheffield and Rotherham Independent.”

Plea. Not guilty. Issue thereon.

The libel complained of was contained in a report of an examination of a debtor in custody, held in York Castle, before the registrar of the Leeds Bankruptcy Court, pursuant to the provisions of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), ss. 101, 102; and it conveyed an imputation on the solvency of the plaintiff, who had been the debtor’s partner. The cause was tried at the last Leeds spring assizes before Keating, J., when, the publication of the defamatory matter having been proved, the learned judge told the jury that “the libel was a privileged communication, and that the defendants were entitled to the verdict if the jury thought that the libel was a fair report of the proceedings before the registrar of the Court of Bankruptcy, and published without malice.” The report contained no original comment on what passed. The jury found a verdict for the defendants.

In Easter Term last, a rule nisi was obtained for a new trial.[465]

POLLOCK, C. B. I am of opinion that my Brother Keating was right in his ruling. The complaint here made is that certain proceedings held by a registrar in bankruptcy in York Castle, and published by the defendant, were libellous on the plaintiff. The defence is, that the alleged libel was contained in a fair, correct, and _bona fide_ report of what took place; and if these proceedings were in a public court, and the publication was fair, there is no foundation for this action.[466] The only question then is, whether the registrar’s court was under the circumstances a public court. I think that it was. We ought, in my opinion, to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair _bona fide_ statement of proceedings there. The jury found that the publication of this report was _bona fide_, and the verdict, therefore, ought not to be set aside.

BRAMWELL, B. I am of the same opinion. I think that this court was a public court. That is shown from the terms of ss. 101 and 102. And even if it were not so, yet if the officer who holds it chooses to make it public, it would be public for this purpose. Then as to the point made, that nothing ought to be published affecting a third party, even when relevant to the inquiry, I think there is no such restriction. Those who are present hear all the evidence, relevant or irrelevant, and those who are absent, may, as far as I can see, have all that is said reported to them. The doctrine contended for is an entire novelty, because, if sound, every witness might bring an action against the newspaper publisher reporting his evidence, and call upon that publisher to prove all the libellous statements which might be contained in his examination or cross-examination. I do not think that there is any such qualification as that suggested, nor do I concur in the other suggestion made to us, viz., that what is _irrelevant_ and libellous on a third person is not protected. There are cases where an individual must suffer for the public good, and it is difficult to draw the line between relevancy and irrelevancy. My opinion is, that when once you establish that a court is a public court, a fair _bona fide_ report of all that passes there may be published. Possibly this privilege is applied to courts of justice, because needless scandals are usually avoided in them. I am therefore of opinion that this rule should be discharged.

_Rule discharged._

USILL _v._ HALES
IN THE COMMON PLEAS DIVISION, JANUARY 30, 1878.
_Reported in 3 Common Pleas Division, 319._

LORD COLERIDGE, C. J.[467] I am of opinion that this rule must be discharged.

This was an action against the proprietor of a newspaper for publishing a _bona fide_ and fair report of proceedings before a magistrate. Three persons, surveyors, who had been employed by a civil engineer to assist in the construction of a railway in Ireland, hearing that their employer had been paid, and conceiving that the money due to them had been improperly withheld by him, went before a police magistrate in London, and (I must take it for the purpose of my judgment, and do so take it) applied to him for a summons or order under the Masters and Workman’s Act. In the result, the magistrate thought that the facts stated by the complainants showed no ground for a summons against the plaintiff under the Act; and therefore in the result it turned out that, in a certain sense, an application had been made to the magistrate with regard to a matter as to which he had no jurisdiction. I say in a certain sense: but it has been long held, and I think most properly held, that it is not the result but the nature of the application made to the magistrate which founds his jurisdiction: and that, wherever an application is made to a magistrate as to a matter over which, supposing the facts to bear out the statement, he has jurisdiction, he then has jurisdiction to ascertain whether the facts make out a case for the exercise of that jurisdiction which, if the facts make out the case, undoubtedly he has.

It has been laid down again and again in broad terms that the publication of the proceedings in courts of justice is privileged if the report of such proceedings be fair and honest; and this is so found to be. An attempt however has been made (and Mr. Shortt will allow me to say that, if it were possible to have succeeded, I think his argument would have succeeded, because he has said everything that could be said, and has said it well) to distinguish this case and take it out of the general proposition, by bringing it within an undoubted qualification which has been grafted upon that general proposition, viz., that the application to the magistrate here was what may be called an _ex parte_ or a preliminary proceeding. Now, there is no doubt that, in many cases to which Mr. Shortt has referred, the term “_ex parte_ proceeding” has been over and over again used by judges of great eminence, sometimes affirmatively to say that an _ex parte_ proceeding is not privileged, and sometimes negatively to say, this, being a proceeding not _ex parte_, is privileged; and I do not doubt for my own part that, if this argument had been addressed to a court some sixty or seventy years ago, it might have met with a different result from that which it is about to meet with to-day. Speaking frankly,—and it is useless, if a case has made a certain impression upon your mind after you have done the best you can to understand it, to say it has not made that impression,—it seems to me quite plain that in such cases as Rex _v._ Fleet, 1 B. & A. 379, judgments of great judges do lay down the rule that an _ex parte_ or preliminary proceeding is not privileged on the ground, good or bad, that it is very hard upon an individual to have a matter stated against him behind his back which he has no means of answering; and that oftentimes an accused person will come to trial, if he be tried, with a heavy weight of prejudice; where the case against him has been reported in the public newspapers, and his own answer, if he has one, from the necessities of the case has not been similarly made known. No doubt there are very strong observations in those cases adopted in Duncan _v._ Thwaites, 3 B. & C. 556, which go very far to maintain that proposition. There is also a _dictum_ of one of the greatest authorities in our law, Lord Eldon, than whom few greater lawyers have ever sat in Westminster Hall, who is reported, by Mr. Starkie, Starkie on Libel, 4th ed., p. 191 (9), to have once observed that he recollected the time when it would have been matter of surprise to every lawyer in Westminster Hall to learn that the publication of _ex parte_ proceedings was legal.