Mower v. Watson

The of the court was delivered by Redeield, J. The question raised by the bill of exceptions in this case, is one of very considerable practical importance, and no little difficulty. It is believed, however, that the principle upon which this case must be decided, is distinctly settled in Torry v. Field, 10 Vt. R. 353. It is there [540] considered, that the privilege of all, whose duty or interest calls them to participate in the proceedings of courts of justice, is not to be made liable to an action of slander or libel, for any thing spoken or written therein, provided it be in the ordinary course of proceedings, or bona fide. This privilege extends to court, jury, witnesses, parties and their counsel. Iam not inclined to believe that there is any good ground of distinction, as to the extent of this privilege, between counsel and client. Principle and authority seem to concur in requiring, that the privilege of the one should be coextensive with that of the other. The counsel is but the agent of the client, and in that capacity, only, could claim any protection. We incline then to consider, that this privilege, as to parties in courts of justice, is correctly laid down in that case, where it is said, “ that the party claiming the protection, must have spoken the words, in the reasonable and necessary defence or pursuit of his rights,” in a suit either then pending or about to be instituted. And words spoken by counsel, to be privileged, £: must have been spoken in the course of the discharge of his duty to his client, and must have been pertinent to the matter in question.” I apprehend this is the general principle to be deduced from the cases upon this subject, and is carrying the privilege as far as reason or propriety would warrant. I do not, however, wish to be understood, that there may not be found cases carrying the rule much further; but such cases have not been generally regarded as authority. In the case of Hodgson v. Scarlett, 1 Holt’s R. 621, Mr. Baron Wood says, u I have always considered it to be an established principle in law, that for imputed slander, originating in judicial proceedings in court, no action will lie thus most obviously extending the privilege to every word spoken “ in court,” whether pertinent to the issue or not. This was at the nisi prius trial of the case. The words charged to have been spoken by defendant, Sir James Scarlett, were spoken by him in summing up to the jury, in a case tried at the Gloucester assizes, and seemed to have been admitted, on all hands, to have been pertinent. The rule thus laid down by the learned judge was much broader than the case required. The case was discussed before the full bench, C. P,, and is reported in 3 C. L. Rep. 204, in note, and in 1 B. & A. Rep. 232. The judges delivered their opinions [541] seriatim, confirming the nonsuit which was ordered at nisi prius. But each judge puts much stress upon the point of the words having been pertinent to the matter in question. Lord Ellenborough says, “ it was clearly proved, that the words were relevant to the matter in issue.” BayJey Justice says, “ they, the words, were no more than the counsel was privileged in using, as pertinent to the matter in issue.” Abbot, J., says, “here the pertinency of the expressions was manifest.” Holroyd, Justice, says, “ his opinion in this case was governed, first, on the ground of the pertinency of the words to the matter in issue, and secondly, that no malice was proved.” In Sir Richard Buckley & Wood’s case, 4 Coke, 14, it is said, the defendant is not justified in preferring matter in the star chamber, which was only pertinent to a trial by indictment, because that court had no cognizance of such matters, and because “ the bill hath not appearance of any ordinary course of justice.” Ch. J. Swift, 1 Swift’s Dig. 645, says, the defendant is justified, “ if the words were spoken by him as counsel, and were pertinent to the matter in questionand on p. 488, “ this must be understood where the words are pertinent to the issue.” Mr. Starkie, in the recent and greatly improved edition of his treatise on evidence, lays down the rule thus. “ But the defence would fail, if it appeared that the mode or the extent of the publication, was not warranted by the usual course of proceedings in such cases.” 2 Stark. Ev. 467, 468. In note 3, it is said, “ great allowance is to be made for what a man says, when attending his own cause. He has a right to the utmost freedom in communicating his sentiments to his counsel or the court; but he may not make this privilege a cover for malicious slander;” citing 1 Browne’s R. 40, and 4Yeates, 322. To say to a witness, who had just finished his testimony, “ you have sworn to a manifest lie,” is actionable. Kean v. McLaughlin, 2 Serg. & R. R. 469. To say to a witness while giving his testimony to a material point in the case, “that is false,” is actionable, if spoken maliciously. M’Claughry v. Wetmore, 6 Johns. 82. From the forgoing cases the true ground of the privilege is readily deduced. Primafacie, the party or his counsel is privileged for every thing spoken in court, If any one considers himself aggrieved, in [542] order to sustain an action for slander, he must show that the words spoken were not pertinent to the matter then in pro-8resS; an<^ that they were spoken maliciously, and with a view to defame him. So that if the words spoken were pertinent to the matter in hand, the party and counsel may claim full immunity from an action of slander, however malicious might have been his motive in speaking them. So, too, if the words were not pertinent to the matter in issue, yet, if the party spoke them bona fide, believing them to be pertinent, no action of slander will lie. So that the plaintiff, in order to maintain this action, must prove, first, that the words spoken were not pertinent to the matter then in hand, and secondly, that they were not spoken bona fide. This was the view taken by the county court, and that judgment must be affirmed. The rule here laid down is fully sustained by the case of Torry v. Field, and numerous cases there cited, to which case I beg leave to refer, as containing my own views upon the propriety of the rule, more at length than it is deemed suitable here to repeat.