exhibited before a justice of the peace; there an action upon the case, as for defamation, will not lie, because the slander is uttered in the course of the administration of justice; but the party complaining is bound to allege that it was made without reasonable or probable cause." See Johnstone v. Sutton, 1 T. R. 544, 545. The court in White v. Nicholls further refer to Curry v. Walter, 1 Bos. & P. 525, where it is held that a true report of what passed in a court of justice is not actionable; and say that this doctrine has been modified by later cases. Rex v. Creevey, 1 Maule & S. 273; Rex v. Carlile, 3 Barn. & Ald. 167; Delegal v. Highley, 3 Bing. N. C. 950; Fairman v. Ives, 5 Barn. & Ald. 642. But the doctrine of Curry v. Walter has more recently been considered, and has been confirmed. Hoare v. Silverlock, 9 Com. B. 20. This was an action for an alleged libel, which consisted of a report of a trial of a case between the plaintiff and another. On the part of the defendant (who pleaded not guilty), it was proposed to prove that the report in question was a fair and substantially correct report. This the plaintiff contended was not admissible, at all events under the general issue. The evidence, however, was admitted; and the jury were instructed that if they were satisfied that the publication was no more than a fair and impartial report of the trial, they must find for the defendant. On a motion for a new trial, the plaintiff contended that the defence should have been specially pleaded, so that he could meet it; but the motion was denied, and the instruction sustained by the full court. The effect of the decision, therefore, was that the defence was a complete one, and not merely prima facie. See also Ryalls v. Leader, Law R. 1 Ex. 296, where Pollock, C. B., said that where the report of a trial was fair there was no foundation for an action for libel. It was conceded in White v. Nicholls that Lake v. King, 1 Saund. 131 b, was opposed to the view maintained. It was there held that the printing of a false and scandalous petition to a committee of the House of Commons, and delivering copies of the same to the members of the committee, was justifiable, because it was published in the order and course of proceedings in Parliament. It was, indeed, agreed that no action lay for exhibiting the petition to a committee of Parliament, however false and scandalous it was; and the only question was, whether the manner of the publication was justifiable. But this may have been on the ground that Parliament was a court of justice, competent to examine into such matters. And, in a subsequent case, some doubt is thrown upon the doctrine that petitions to Parliament are absolutely privileged. Fairman v. Ives, 5 Barn. & Ald. 612. Two other cases were cited by the learned judge in White v. Nicholls (Commonwealth v. Clap, 4 Mass. 169, and Bodwell v. Osgood, 3 Pick. 379), but in neither of them was the defamation published in the courts or legislature. There are many cases, besides those above mentioned, opposed to White v. Nicholls. In Cutler v. Dixon, 4 Coke, 1 b, it was adjudged that no allegation contained in articles of the peace exhibited to justices was actionable. So, too, in case for exhibiting a scandalous bill against the plaintiff in the Star Chamber, it was resolved by the whole court that for any matter contained in the bill that was examinable before the court no action lay. Buckley v. Wood, 4 Coke, 14 b, pl. 3. Nor can an action be maintained against a witness for a false charge. Harding v. Bodman, Hutt. 11; s. c. Brownl. 2. Nor can a presentment of a grand jury be libellous. Moor, 627; Hawk. P. C. c. 73, § 2; 3 Chitty, Pleading, 870. And it is said to be the better opinion that no want of jurisdiction in the court before which a complaint is preferred will take away this protection; because the mistake of the court is not attributable to the party himself, but to his legal adviser. Ib.; note to Cutler v. Dixon, supra. (But Hawkins says that where it appears from the whole circumstances of the case that the prosecution is commenced for the mere purpose of libelling, and without any intention to proceed in it, such an abuse and mockery of public justice should not become a shelter for the guilt which they in reality increased. P. C. c. 73, § 2.) In Astley v. Younge, 2 Burr. 807, the declaration charged that the defendant did maliciously make, exhibit, and publish to the Court of King's Bench a malicious, false, and scandalous libel, contained in an affidavit. Plea, that the defendant made the affidavit in his own defence, against a complaint made to the court against him for his refusal to grant an ale license, and in answer thereto, and to an affidavit of the plaintiff. There was a demurrer to this; and after argument, in which counsel for the plaintiff urged that the defendant had admitted that the affidavit was made maliciously, judgment was given for the defendant. In this case Lord Mansfield mentions the following case, which he says is "vastly stronger." In an action upon the case by A. against B., the plaintiff declares that he took his oath in this court against B. of certain matters, to bind him to his good behavior; and thereupon B. said, falsely and maliciously, intending to scandalize the plaintiff, "there is not a word true in that affidavit, and I will prove it by forty witnesses." And it was held in arrest of judgment (the jury having found the words false and malicious) that the action was not maintainable; for the answer which B. made to the affidavit was a justification in law, and spoken only in defence of himself, and in a legal and judicial way. The American cases on this point are not so numerous; but the weight of authority here is also against the doctrine of White v. Nicholls. Besides the principal case, Hastings v. Lusk, see also Holmes v. Johnson, Busb. 44; Shelfer v. Gooding, 2 Jones, 175. In the first case the question was, whether the defendant could be sued in an action for malicious prosecution for merely taking out a warrant against the plaintiff, charging him with larceny. And it was held that the action would lie; the court saying that if the plaintiff could not avail himself of that action, he would be entirely without remedy, for that he could not sue for the slanderous words because they were spoken in the course of a judicial proceeding." 66 In the other case (Shelfer v. Gooding), the court held that an action could not be maintained against a master for words spoken while acting as counsel for his slave in a judicial proceeding, provided the words were material and pertinent to the matter in question. This conclusion, based principally upon Hastings v. Lusk, was reached after a review of the cases, including White v. Nicholls. The protection afforded to judicial proceedings embraces, according to the better opinion, the pleadings in the cause; for the power to strike out scandalous matter, and to punish as for a contempt, is considered a sufficient guaranty against the abuse of the privilege. Townshend, Slander, § 221; Henderson v. Broomhead, 4 Hurl. & N. 577. So, of affidavits made in the course of a trial, especially if pertinent: Garr v. Selden, 4 N. Y. 91; Doyle v. O'Doherty, Car. & M. 418; Warner v. Payne, 2 Sandf. 195; and even though the person making it be not a party to the cause: Henderson v. Broomhead, supra; Revis v. Smith, 18 Com. B. 126. Nor does an action lie against a witness for what he may have said: Revis v. Smith, supra; Lewis v. Few, 5 Johns. 13; though (it is said) the testimony be irrelevant, or influenced by malice: Calkins v. Sumner, 13 Wis. 193. But see White v. Carroll, 42 N. Y. 161; Allen v. Crofoot, 2 Wend. 515; Lea v. White, 4 Sneed, 111. So, too, judges, while exercising judicial functions, are privileged. Scott v. Stansfield, Law R. 3 Ex. 220. So of coroners holding an inquest. Thomas v. Churton, 2 Best & S. 475. And so, in general, of words uttered in the bona fide discharge of official duty. Goodenow v. Tappan, 1 Ohio, 60; Wilson v. Collins, 5 Car. & P. 373; Rector v. Smith, 11 Iowa, 302; Dunham v. Powers, 42 Vt. 1; Sands v. Robison, 12 Smedes & M. 704. (b.) Proceedings before church organizations, against members of the church, for violation of their creed, are quasi judicial, and afford a protection to the utterance of defamatory language, if it be pertinent to the matter in question. Farnsworth v. Storrs, 5 Cush. 412; York v. Pease, 2 Gray, 282; Dunn v. Winters, 2 Humph. 512. The case first cited was an action for an alleged libel against a clergyman. The female plaintiff, while a member of the defendant's society, had committed fornication: and for this offence she was, by the alleged libel, excommunicated from the church, after sundry unsuccessful attempts towards bringing her to an acknowledgment of her fault and to repentance. The society, having finally voted to exclude her from further membership, authorized the pastor to draw up the communication complained of, and to read the same before the congregation, which he did. The plaintiff claimed that the libel charged the offence of adultery, which was denied. No proof of express malice was offered; and it was held that the action would not lie. Whether the communication, therefore, was absolutely privileged does not clearly appear; and the court carefully distinguished the case from a charge of adultery, which is indictable by statute. It is, however, to be inferred from the language of the Chief Justice that the protection against the charge of fornication was complete. After giving the opinion that the offence charged was fornication, he said that, even upon the ground taken by the plaintiff, that the offence charged was adultery (which charge would not have been true), the defendant was justified. Amongst the powers and privileges of churches given by statute and established by immemorial usage, they had authority to deal with their members for immoral and scandalous conduct; and for that purpose to hear complaints, to take evidence, and to decide; and, upon conviction, to administer proper punishment by way of rebuke, censure, suspension, and excommunication. The proceedings of the church were quasi judicial, and, therefore, those who com plained, or gave testimony, or acted and voted, or pronounced the result, orally or in writing, while acting in good faith, and within their jurisdiction, were protected by law. In York v. Pease, 2 Gray, 282, the defendant, while on trial for dishonesty before a church meeting, spoke certain defamatory words of the plaintiff; and the judge instructed the jury that if the words were spoken during the progress of the trial, and in good faith, for the purpose of defence, they were privileged. On appeal, this was held correct. In Dunn v. Winters, 2 Humph. 512, the defendant pleaded to an action for a libel, charging the plaintiff, in certain certificates of third persons, with being a party concerned in the malicious killing of the defendant's horses; that the parties were both members of a Baptist church; and that the plaintiff had accused him before the church of falsely accusing him concerning the death of his horses; and that, in defence to this charge, he had produced the certificates containing the alleged libel; and that he had done so honestly and bona fide, and not maliciously. To this a demurrer was sustained, on the ground that the communication was privileged. The case did not raise the question of the extent of the privilege; and nothing was said upon the point. It seems very clear, however, that if the defendant in cases of this kind confines himself to that which is relevant in support of his defence, no inquiry can be made into the motives which may have actuated him in doing so. If the defence be a proper one, it cannot be material that he intended to injure the plaintiff, as well as to protect himself. (c.) Reports of Trials and other Public Proceedings. As to reports of judicial trials in the public prints, it is settled law that they must be full, or at least full enough to give a correct impression of the proceedings, and without comments. If they be partial, or be followed by comments containing defamatory charges, the presumption of malice will stand. In Flint v. Pike, 4 Barn. & C. 473, the declaration alleged that the defendant had published of the plaintiff a libel, professing to give a short summary of the facts of a certain case in which the plaintiff was attorney. The libel stated that the defendant's counsel in that case was both extremely severe and amusing at the expense of the present plaintiff; and it then professed to give a few outlines of the speech of the said counsel for the defendant; and the part of the speech set out contained some very severe reflections on the conduct of the plaintiff in connection with the suit in which he was then engaged. Plea, that the supposed libel was, in substance, a true report of the trial of the said issue; to which a demurrer was sustained. Mr. Justice Bayley said that the speeches of counsel were privileged, because they were made for the purpose of influencing the jury in their decision. The auditors and jury had an opportunity to judge how far the observations made were warranted by the evidence; but here the publisher of the libel, not having published the evidence in full, had given his readers no such opportunity. And he referred to cases in which it had been held indictable for parties to publish in the newspapers speeches made by themselves in Parliament, containing defamatory matter. Rex v. Creevey, 1 Maule & S. 273; Rex v. Abingdon, 1 Esp. 226. He cited also Lake v. King, 1 Saund. 120, where a petition presented for the use of members of a committee of the House of Commons had been circulated else- tion stating that the defendant published where, which was held unjustifiable. And he was inclined to go even further than the case required, and to hold that the speeches of counsel reflecting on the character of others should not be published even in connection with a full report of the facts. Mr. Justice Holroyd said that it by no means followed that, because counsel were privileged in argument to utter injurious language, a third person might repeat it to all the world. The repeating of such slander was not done in the course of the administration of justice. a libel, containing false and scandalous matter, in substance as follows,' and then setting out the libel with innuendoes, was held to be bad in arrest of judgment, because it professed to give only the general import and effect of the libel, and not a copy of it. For the very same reason it appears to me that it is not sufficient to state in a plea that the libel is in substance a true and accurate report of the trial. I think the plea ought to show the libel to be a true account and report of the trial." In Stiles v. Nokes, 7 East, 493, it was held to be libellous to publish a Mr. Justice Littledale thus stated highly colored account of judicial prohis objection to the plea: "By sub- ceedings, mixed with the party's own stance, I apprehend, is meant the infer- observations and conclusions upon what ence which the person who published passed in court, which contained an the libel draws from the whole of what insinuation that the plaintiff had compassed at the trial. The plea, therefore, mitted perjury. And it was deamounts to this, that the libel, in his cided to be no justification for such judgment, is a true account and report insinuation against the plaintiff (who of the trial. Now, in my judgment, it had sworn to an assault upon him by appears upon the face of the declaration A. B.), that it did appear (this being that the libel does not contain a true the suggestion in the libel), from the and accurate report of the trial, be- testimony of every person in the room, cause it neither details the speech of except the plaintiff, that no violence the counsel for the plaintiff nor the had been used by A. B.; for non conevidence, nor even the whole of the stat, thereby that what the plaintiff speech of the counsel for the defendant. swore was false. Neither was it a But even supposing that this had not sufficient justification for such a libel, appeared on the face of the declaration, where the extraneous matter was So and that the libel professed to give the mingled with the account of the trial speeches of both counsel, and the evi- as to make it uncertain whether it could dence, still I think that this plea, which be separated, to justify the publication states that the libel contained in sub- by general reference to such parts of stance a true and accurate report of the the supposed libel as purport to contrial, is not good in point of form. In tain an account of the trial, and that an action for a libel it is necessary to the said parts contained a just and set out in the declaration the words of faithful account of the trial. See also the libel itself, in order that the court Thomas v. Croswell, 7 Johns. 264, may see whether they constitute a good 272; Lewis v. Walter, 4 Barn. & Ald. ground of action. In Wright v. Cle- 612; Roberts v. Brown, 10 Bing. 519; ments, 3 Barn. & Ald. 503, a declara- Delegal v. Highley, 3 Bing. N. C. |