Ring v. Wheeler

Curia, per Woodworth, J. The counts in the declaration charge the speaking of the words in various ways; and the weight of evidence, as derived from the judge’s notes, is, that they were spoken while the defendant *was summing up to the referees. There is, therefore, no sufficient ground for entering the verdict on any of the counts which state the speaking of the words without reference to the hearing. The words proved are actionable in themselves, unless justified by the occasion and manner of speaking. If the 4th and 6 th counts are defective in substance, the evidence will warrant the application of the words to the 1st, 2d and 3d counts, which are indisputably good. There is, however, no necessity of confining the verdict to any one or more of the counts which charge the speaking before the referees. They are substantially the same. The question then arises, whether these counts state a valid cause of action. It is proper to remark here, that as the judge’s notes can be looked into for the single purpose of ordering a judgment upon particular counts, their office is performed when that object is answered or denied. On the motion in arrest, we cannot look out of the record and are, therefore, not in a situation to determine whether the charge made by the defendant, was pertinent to the cause or not, or whether there was anything in the evidence given at the hearing, in the slightest degree to warrant or call for the imputation made. The defendant has placed himself under this disadvantage by omitting to put the facts constituting his defence upon record; and thereby presenting to the court a view of the whole ground. We cannot take notice of anything more than that, in the course of a trial before referees, after the plaintiff had testified, the now defendant made a charge amounting to perjury. Such, is the [729] import of any .set of .these words when applied to testimony material to the issue. The declaration also shows, that the defendant was acting in the capacity of a party, he being -plaintiff in the cause: and perhaps we may -recoge nize him as a counsellor of .this court, (which is the fact,) although he is not stated to be so in the pleadings. But if acting as a party only, I consider that the privilege claimed for counsel equally attaches; apd therefore the emission is not material. *1 think it follows, from this state of the cage, that in order to arrest the judgment, the court must be satisfied .that counsel are protected for words spoken by them .on the trial of a cause, although they may have been false, and uttered wilfully and maliciously, and were irrelevant; and although neither the evidence nor circumstances afford a •suspicion to warrant the accusation. Admitting, as I do, ■thegreat latitude allowable to counsel, which may frequently ■be .abused with impunity, I do not think the rule can legaly be carried to the extrayagant length, for which it .seems necessary the defendant should contend. The rule, a? laid down by Buller in his treatise of the law of nisi prius, appears to be just .and reasonable. He observes, The defendant may, by way of justification, plead that the words were spoken by him as counsel in .a cause ; and that they were pertinent fo the matter in question.” (Bul. N. P. 10.) In Brook v. Montague, (Cro. Jac. 90,) the extent ¡of the privilege claimed was commented on, apd some print resolved. It is there laid down that, “.a counsellor hath a privilege to inforce anything which is informed him by his client, and fo give it in evidence, it being pertinent to the matter in question; and not to examine whether it be true or frise; for a counsellor is at his -peril, to give in evidence that which his .client informs him, .being pertinePt to the matter in question; but matter not pertinent to the issue, or the matter in question, he need pot deliver; for he is tp discern in his .discretion what he is -to deliver, and what not; and although i:t be false, he is excusable, it being pertinent fo the matter, But •if he give in .evidence anything not material to the issue, [730] which is scandalous, he ought to aver it to be true; otherwise he is punishable; for it shall be considered as spoken maliciously, and without cause, which is a good ground for an action. The court further observe, “so if counsel object matter against a witness, which is slanderous, if there be cause to discredit his testimony, and it be pertinent to the matter in question, it is justifiable, what he delivers by information, although it be false.” The rule thus guarded and restricted, *is undoubtedly salutary, and necessary. In the case of M'Millan v. Birch, (1 Bin 178,) this doctrine was considered. It was there held that words spoken by a party in defence, are actionable, if he does not designedly wander from the point in question, for the purpose of uttering the slander.- Chief justice Tilgham observes, “ that if a man should abuse this privilege, and, under pretence of pleading his cause, designedly wander from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law.” We are not called upon in this case, to decide upon the particular circumstances which took place at the hearing; whether they would or would not justify the defendant. They are not before us. There is no explanation. The jury found the defendant guilty; and we are to presume the law was correctly laid down by the judge. On this motion in arrest, we are not authorized to say, what does not, and cannot appear; that the words were not spoken maliciously, that they were pertinent to the issue, that there was color for making the imputation, and that they were not spoken with design to slander the plaintiff. In the absence of all this, the conclusion must be, that the words are actionable; and that the motion in arrest be denied.(a),[1] Motion denied, [731] Sutherland, J., not having heard the argument, gave no opinion. Footnotes [(a)] In Wood v. Gunston, (Sty. 462,) Glyn, C. J., said, “If a counsellor speak scandalous words of one in defending his client’s causo, an action doth not lie .against him for so doing; for it is his duty to speak for his client; and it shall be intended to be spoken according to his client’s instructions.” But [731] in Hodgson v. Scarlett, (1 B. & A. 232,) Ld. Ellenborough said Wood v. Gunston carried the privilege too far; and he puls it upon the pertinency and good faith of the remarks, and allows such coloring as counsel may think justified by circumstances. Bayley, J., adopts Brook v. Montague, as laying down the true rule. The judges examine the circumstances, delivering their opinions seriatim; and the result of the case is, that “an action for defamation will not lie against a barrister for words spoken by him as counsel in a cause, pertinent to the matter in issue.” [[1]] See the observations made by Holroyd, J., in the case of Fairman v. Ives, 1 B. & A 645 In the case of Hodgson v. Scarlett, 2 B. & A., the same [731] learned judge observed, with a view to the due administration of justice, counsel are privileged in what they say; unless the administration of justice .is to be fettered, they must have free liberty of speech in making their observations, which it must be remembered may be answered by the opposing counsel, and are commented on by the judge, and are afterwards taken into consideration by the jury, who have an opportunity of judging how far the matter uttered by the counsel is warranted by the facts proved; therefore, in the course of the administration of justice, counsel have a special privilege of uttering matter even injurious to an individual, on the ground that, such a privilege tends to the administration of justice. And if a counsel, in the course of a cause, were to utter observations injurious to individuals, and not relevant to the matter in issue, it seems to me that he would not therefore be responsible to the party injured, in a common action for slander, but that it would be necessary to sue him in a special action on the case, in which it must be alleged in the declaration, and proved at the trial, that the matter was spoken maliciously and without reasonable and probable cause. This may be illustrated by the common case of a false charge of felony exhibits.' 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. I Starkie on Slander, pp. 254, 255, note (k.)