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No. 4. — Dawkins v. Lord Rokeby. — Notes.

him jurisdiction. Calder v. Halkett (1839), 3 Moo. P. C. 28; Houlden v. Smith (1850), 14 Q. B. 841, 19 L. J. Q. B. 170.

Words spoken by a justice of the peace are privileged unless they were spoken maliciously, and without reasonable and probable cause, and had no connection with the matter in issue. Kirby v. Simpson (1834), 10 Ex. 358, 23 L. J. M. C. 165; Gelen v. Hall (1857), 2 H. & N. 379, 27 L. J. M. C. 78.

The privilege attached to judicial proceedings applies only to proceedings before a body which is strictly recognized as judicial. Proceedings before other investigating bodies, though of a judicial nature, are not absolutely privileged. The Licensing Committee of the London County Council is not a judicial body. Hence, if a member, on a petition for the grant or renewal of a Music Hall license, makes a slanderous statement against the petitioner, falsely and maliciously, knowing that it was false, or reckless whether it were true or not, it is not privileged. Royal Aquarium Society v. Parkinson (C. A. 1892), 1892, 1 Q. B. 431, 61 L. J. Q. B. 409, 66 L. T. 513, 40 W. R. 450.

In regard to the privilege of an advocate conducting a cause for a client in a judicial proceeding, it was laid down at an early date that a counsellor hath a privilege to enforce anything that is informed unto him for his client, and to give it in evidence, it being pertinent in the matter in question, and not to examine whether it be true or false.”

Sir Henry Montague, Cro. Jac. 90. This was followed in a case against an eminent barrister, Hodgson v. Scarlett (1818), 1 B. & Ald. 232, 19 R. R. 301. Modern cases have gone further, and the law has been laid down by the Judges of the Court of Appeal (BRETT, M. R. and Fry, L. J.) in affirming a judgment of the Queen's Bench, that the words of an advocate while conducting a case for his client are absolutely privileged even although irrelevant and spoken maliciously and without reasonable cause. Munster v. Lamb, No. 2 of "Counsel," 7 R. C. 714.

The testimony of witnesses in a judicial proceeding is also absolutely privileged, provided the words spoken by a witness refer in some way to the enquiry the Court is engaged in. Trotman v. Dunn (1815), 4 Camp. 211; Lynam v. Gowing (1880), 6 L. R., Ir. 259. This was held to apply, where a witness, after his cross-examination, volunteered a statement of opinion by way of vindicating his credit, which involved a criminal accusation against a person wholly unconnected with the

Seaman v. Netherclift (C. A. 1876), 2 C. P. D. 53, 46 L. J. C. P. 128, 35 L. T. 784, 25 W. R. 159.

same privilege is accorded to the statements in an affidavit made in the due course of a judicial proceeding. Revis v. Smith (1856), 18 C. B. 126, 25 L. J. C. P. 195; Henderson v. Broomhead (1859), 4 H.

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& N. 569, 28 L. J. Ex. 360, 5 Jur. N. S. 1175, 33 L. T. (0.8) 302. If the matter is false and relevant to the issue, the only remedy is a prosecution for perjury. The case might be different if some libellous and wholly irrelevant matter (which of course would be liable to be expunged for scandal) was maliciously inserted; but it would, at all events be necessary for the plaintiff to show the irrelevancy. See per ERLE, C. J., Henderson v. Broomhead, supra.

The observation of a juror is absolutely privileged. Rex v. Skinner (1772), Lofft. 55.

3. Proceedings before a naval or military Court.

See Dawkins v. Lord Rokeby ; Dawkins v. Prince Edward of Saxe Weimar, supra. In Dawkins v. Paulet (1870), L. R., 5 Q. B. 94, 39 L. J. Q. B. 53, 21 L. T. 584, 18 W. R. 336, 9 B. & S. 768, the defendant was the military superior officer of the plaintiff. It was his duty as such superior officer to forward to the Adjutant-General letters written by the officers under his command and sent to him in relation to their military conduct, and to make reports in writing to the Adjutant-General upon such letters, for the information of the Commander in Chief. The defendant received some letters from the plaintiff, and forwarded them in the ordinary course of military duty to the Adjutant-General, and made certain reports in writing. The plaintiff sued in respect of the libellous character of the reports. The defence was privilege, to which the plaintiff replied that the report was made maliciously, without reasonable and probable cause, and not in bona fide discharge of the defendant's duty as superior military officer. MELLOR, J., and LUSH, J. (COCKBURN, C. J., dissenting), held that even though the words complained of were published maliciously and without reasonable, probable or justifiable cause as alleged in the reply, yet that, inasmuch as the question raised was one purely of military cognisance, the plaintiff had no remedy at law.

4. Communications as to Matters of State made by one Officer of State to another in the course of his official duty.

Chatterton v. Secretary of State for India (C. A. 1895), 1895, 2 Q. B. 189, 64 L. J. Q. B. 677, 72 L. T. 858.


No action lies against a witness for words spoken in testimony, if pertinent, although malicious. Calkins v. Sumner, 13 Wisconsin, 193; 80 Am. Dec. 738; Barnes v. McCrale, 32 Maine, 442; Perkins v. Mitchell, 31 Barbour (New York), 461; Lewis v. Few, 5 Johnson (New York), 13; Nelson v. Robe, 6 Blackford (Indiana), 204; Verner v. Verner, 61 Mississippi, 321; Stewart v. Hall, 83 Kentucky, 375; Hutchinson v. Lewis, 75 Indiana, 55; Liles v. Gaster, 42 Ohio State, 631; Nissen v. Cramer, 104 North Carolina, 574; 6 Lawyers'

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Rep. Annotated, 780; Cooper v. Phipps, 24 Oregon, 357 ; 22 Lawyers' Rep. Annotated, 836 ; citing the principal case.

In Perkins v. Mitchell, Kupra, the Court said: “In the course of judicial proceedings, which is all that is material now, words spoken or written by a party, by counsel, by a judge, a juror, or a witness, although false, defamatory, and malicious, are not actionable if they were uttered in the due course of the proceeding, in the discharge of a duty, or the prosecution of defence of a right, and were pertinent and material to the matter in hand.” Citing English and New York cases. “ These cases leave no room to doubt that in England and in the Courts of this state, the rule has been very steadily adhered to which protects parties and witnesses for statements pertinently made by them in the assertion of their rights or the discharge of their duties at such.”

But if the testimony is false, irrelevant, and malicious, it is not privileged.

" But a remark made by a witness while on the stand, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by him maliciously for his own purposes, and observations made while waiting about the Court before or after he has given his evidence, are not privileged.” Newell on Defamation, sect. 43; Barnes v. McCrate, 32 Maine, 412; Calkins v. Sumner, 13 Wisconsin, 193 ; Grove v. Brandenburg, 7 Blackford (Indiana), 234; Smith v. Howard, 28 Iowa, 51.

In White v. Carroll, 42 New York, 161; 1 Am. Rep. 503, the witness being asked if a physician attended on a certain occasion, “ Not as I know of; I understand he had a quack; I would not call him a physician.” It was left to a jury to say whether this was malicious, and a judgment for plaintiff in slander was sustained.

In Shadden v. McElwee, 86 Tennessee, 146; 6 Am. St. Rep. 821, the words sued for and uttered in testimony charged the plaintiff with having stolen the defendant's horse. The doctrine of the last case was adopted, the Court observing: “We recognize fully the importance to a due administration of justice of upholding the privilege accorded to parties to write and speak freely in judicial proceedings; but in so doing we must not lose sight of the fact that it concerns the peace of society that the good name and repute of the citizen shall not be exposed to the malice of individuals, who, under the supposed protection of an absolute privilege, make use of the witness box to volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice. The privilege of a witness is great, and will be protected in all proper cases, but it must not be mistaken for unbridled license.”

“ The true rule, in other words, is that what was said pertinent and material to the matter in controversy being privileged, the legal idea of malice is excluded; but if not pertinent, and not uttered bonâ fide, but for the purposes of defaming plaintiff, protection cannot be claimed, and defendant would be answerable.” Smith v. Howard, 28 Iowa, 51.

" It seems to be the settled doctrine of the English Courts that statements made by a witness in the course of a judicial investigation are absolutely privileged, to that extent that no action of libel or slander will lie therefor. In this country, many, and perhaps a majority of the Courts have refused to


No. 4. — Dawkins v. Lord Bokeby. — Notes.


adopt the absolute and unqualified privilege of the witness as laid down by the English Courts; but it is agreed that a witness is absolutely privileged as to everything said by him having relation or reference to the subject-matter of inquiry before the Court, or in response to questions asked by counsel, and presumptively so as to all his statements. But some of the cases hold that if he abuse his privilege by making false statements, which he knows to be impertinent or immaterial and not responsive to questions propounded to him, for the purpose of malicious defamation, he may, upon an affirmative showing to that effect, be held in damages for libel or slander.” Cooper v. Phipps, supra.

This is sustained by Rice v. Coolidge, 121 Massachusetts, 393; 23 Am. Rep. 279, citing the principal case; and precisely to this effect, obiter, Blakeslee v. Carroll, 64 Connecticut, 223; 25 Lawyers' Rep. Annotated, 106 (an inquiry before an aldermanic committee), citing the principal case.

In Hunckel v. Voneiff, 69 Maryland, 179; 9 Am. St. Rep. 413, the witness, being asked to fix a date, answered : “ Not knowing that a mistress or woman of Mr. Pitt would step in to claim the property, I did not keep an account of the date that way.” This was held not to be so wholly foreign to the case as to be actionable. The Court learnedly review the English authorities, including the principal case, and Munster v. Lamb, 11 Q. B. Div. 588 (ante, vol. 7, p. 711); they quote Mr. Townshend to the effect that a witness is not liable “except for wilfully false statements;” and Judge Cooley to the effect that the witness's statements are “absolutely privileged,” and “no inquiry into motives is permitted in an action of slander or libel” (Constitutional Limitations, 545; and the authority (such as it is) of Mr. Wait (Actions and Defences,) 438) adopting the English rule; and conclude: “A different view as to the extent of the privilege has been taken by the Courts of many of the States; and it may be conceded that the weight of authority in this country is in favor of a much greater restriction upon the privilege than is sanctioned by the English decisions. But we are not controlled by any decision of our own Courts, and are at liberty to settle the law for this State according to our best judgment. After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down.” Two Judges dissented, one observing : “ The absolute and unqualified privilege of a witness, as laid down in this case, is in my opinion a departure from the well-settled law on the subject. I agree that a witness is absolutely protected as to everything said by him, having relation or reference to the subject-matter of inquiry before the Court. But if he takes advantage of his position as a witness to assail wantonly the character of another, and to utter maliciously what he knows to be false in regard to a matter that has no relation or reference to the matter of inquiry, he is in my opinion, both on principle and authority, liable in an action of slander."

Mr. Townshend, in the last edition of his treatise on Libel and Slander, sect. 223, cites the doctrine of the New York, Iowa, Maine, and Tennessee Courts, and adds: “We cannot concur in that view. The due administration of justice requires that the witness should speak according to his belief, the


No. 5. — Toogood v. Spyring, 1 Cr. M. & R. 181. — Rule.

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truth, the whole truth, and nothing but the truth, without regard to the consequences ; and he should be encouraged to do this by the consciousness that except for any wilfully false statement, which is perjury, no matter that his testimony may in fact be untrue, or that loss to another ensues by reason of his testimony, no action of slander can be maintained against him.” Citing the principal case. “It is not simply a matter between individuals, it concerns the administration of justice. The witness speaks in the hearing and under the control of the Court, is compelled to speak with no right to decide what is material or immaterial; and he should not be subject to the possibility of an action for his words. This is the view in the Courts of England and some of the States, and in our opinion is the correct view.”

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A COMMUNICATION fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned, is privileged to the effect that no action can, in the absence of proof of malice, be maintained in respect of the statements contained in the communication.

Evidence of statements made by the defendant subsequently to the libel, is admissible for the purpose of showing malice at the time of publication of the libel.

Toogood v. Spyring. 1 Crompton, Meeson, & Roscoe, 181–195 (s. c. 3 L. J. Ex. 347; 4 Tyr. 582).

Defamation. Slander. - Privileged Communication. [181] A., the tenant of a farm, required some repairs to be done at the farm house, and B., the agent of the landlord, directed C. to do the work. C. did it, but in a negligent manner, and during the progress of it, got drunk; and some circumstances occurred which induced A. to believe that C. had broken open his cellar door and obtained access to his cyder. A., two days afterwards, met C. in the presence of D., and charged him with having broken his cellar door, and with

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