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Hastings v. Lusk.

at other and different times thereon, to wit, at the time, in the said declaration stated, in manner and form as he the said defendant hath in his said plea in that behalf alleged. Similar replications were put in to the second and third special pleas. Upon the issues thus joined the cause was tried, and a verdict found for the plaintiff with six cents damages; the jury finding upon the plea of non cul., that the defendant was guilty, &c. upon the first replication to the first special plea that the defendant falsely and maliciously spoke and published the defamatory words and that the same were not pertinent, &c. and upon the second replication to the same plea, that the words were not uttered by the defendant while conducting his defence upon the said examination, but at other and different times, and at the times in the declaration stated. The jury found in like manner as to the replications to the second and third special pleas. The defendant moved in arrest. The court refused to grant the motion and rendered judgment for the plaintiff. The following opinion was delivered by the chief justice:

"By the Court, NELSON, Ch. J. There can be no doubt that the words as charged in the declaration are actionable. 6 Johns. R. 82. 2 Serg. & Rawle, 469. The privilege of the defendant set up in the several pleas, namely, that the words were spoken while conducting his defence against a criminal charge, is fully met by the replications. They deny their pertinency and materiality, or that they were spoken in the course of the defence. Either afford a complete answer to the pleas. Ring v. Wheeler, 7 Cowen, 725. 1 Holt's N. P. 621, and note. 2 Wendell, 516. If the words were not spoken in conducting the defence, then there is no pretence of justification; and whether pertinent and material, cannot be determined on this motion. If they were not, the case of Ring v. Wheeler, is decisive upon this point against the defence. We may add, that at most, even if the defendant was right in respect to the law, the issues presented by the replications are but immaterial, and then the remedy is not by a motion in arrest, but for a re

Hastings v. Lusk.

pleader. Bacon's Abr. pl. M. 2 Tidd, 829. 6 Johns. R. 1. 1 Chit. 633. Motion in arrest denied."

sued out a writ of error.

The defendant

M. J. Bidwell, for the plaintiff in error, insisted that an action of slander will not lie for any thing said by a party or by his counsel, in the course of a judicial proceeding, whether criminal or civil, provided that what is said be pertinent to the matter under inquiry. If the words be maliciously spoken, the remedy of the party is by action on the case. In support of this position, he cited, 4 Co. 15; Bacon's Abr. tit. Slander, E. 14; Comyn's Dig. Action on the case for defamation, F. 22; 2 Burr. 807; Boulton or Moulton v. Clapham, 1 Sir Wm. Jones' R. 431; March, 20, S.C.; 3 Starkie's Ev. 873: Starkie on Slander, 193; 1 Barn. & Ald. 232; 1 Holt. 621; 3 Campb. 295; 1 Binney, 178; 4 Yeates, 322; Bulst. 269; 1 Viner, 388; Hob. 328; 1 Penn. N. J. R. 233; Anthon's N. P. 180: 2 Wendell. 515. He further insisted that to protect the defendant, it is not essential that he should strictly observe the technical mode of proceeding, citing Boulton v. Clapham. Here the declaration and the whole record show that the words were spoken in the course of a judicial proceeding. The finding of the jury that the words were not pertinent, cannot shut the eyes of the court, and prevent them from seeing, by an inspection of the declaration, and even of the replications, that the words were pertinent, however false or malicious they might be. It is the province of the court, and not of the jury, to pronounce upon the pertinency of the words, when enabled to do so by an inspection of the record; and if, upon the whole record, the defendant is entitled to judgment, it will be rendered in his favor, notwithstanding the finding of the jury. So as to the finding upon the second replication, it does not help the plaintiff, for although it avers that the words were not uttered whilst the defendant was conducting his defence, it confesses that they were spoken at the time in the declaration stated, and that time was when the plaintiff was testifying.

Hastings v. Lusk.

W. C. Noyes, for the defendant in error, in answer to the above positions, submitted the following points and authorities: I. If all the special issues were immaterially joined, still as the general issue embraced and put in issue every fact necessary to be proved to sustain the action, and also embraced the same matters relied on as a defence to a greater extent than the pleas assert them, and as the jury have found for the plaintiff below upon all these facts, the motion in arrest was properly denied. Bird v. Randall, 3 Burr. 1353, Lake v. King, 1 Saund. 131, n. (1). 1 Chit. Pl. 486. Grah. P. R. 641. 2. R. S. 425, §7, sub. 8. Thompson v. Britton, 14 John's R. 84.

II. The record discloses a good cause of action. The counsel in a cause, or the party, where he conducts it himself, is liable to an action for slander if he makes observations charging a witness with a criminal offence, or accuses him of perjury while testifying, or at any other time during the progress of the trial, where such observations or charges are irrelevant, and wilful and malicious. The jury in this case have found, as well upon the special issues as upon the general issue, that the charge made against the plaintiff below was not only wilful and malicious, but wholly impertinent and irrelevant. Brook v. Montague, Cro. Jac. 90. 1 R. S. 708, 13, 14. Rosc. Ev. in Civil Cases, 295. Stark. Ev. pt. 4, p. 875. Cock. Clerk's Asst. 52. 3 Chitty's Gen. Pr. 887. Jacob's L. Dict. “Barrister." Bull N. P. 10. Starkie on Slander, 208. Boulton v. Clapham, W. Jones' R. 431; S. C., Viner's Abr. "Action for words," (C. a.) pl. 3. Kelyng's Cr. Cas. 12, 23. Hughes' case, Hob. 326, a. Wood v. Gunston, Styles, 462. Buckley v. Wood, Cro. Eliz. 230, 247. Dela Barre v. Jones, Hard. R. 221. Western v. Dobnier, Cro. Jac. 432. Astley v. Young, 2 Burr. 807: 2 Ld. Kenyon, 536, S.C. Trotman v. Dunn, 4 Campb. 211. Hodgson v. Scarlet, 1 Holt, 621; 1 Barn. & Ald. 232, S. C. Suraingen v. Rich, 4 Yeates, 322. Vigours v. Palmer, 1 Brown, 40. Kease v. McLaughlin, 2 Serg. & Rawle, 469. McMillan v. Birch, 1 Binney, 178. Shute v. Barrett, Pick. R. 82. Bradley v. Heath, 12 id. 163. McLaren v. Wetmore, 6 Johns. R. 82. Fox v. Van

Hastings v. Lusk.

derbeck, 5 Cowen, 513. Ring v. Wheeler, 7 id. 725. Allen v. Crofoot, 2 Wendell, 515.

After advisement, the following opinion was delivered :—

By the CHANCELLOR. The principle involved in this case is of great importance to the community, inasmuch as it involves the rights and privileges of counsel and of parties in the investigation of suits and other proceedings before our judicial tribunals; and as I believe it is the first cause of the kind which has been brought before this court of dernier resort, and has been very fully and most ably argued here by the counsel upon both sides, I have considered it my duty to examine the law on the subject more fully than would be necessary or proper in an ordinary case of mere verbal slander; for it is not only right and proper that parties and their counsel should know what their privileges are, but also that the law should be deliberately and correctly settled. In applying the principles of law to the case under consideration we must, therefore, be careful on the one hand that we do not restrict counsel within such narrow limits that they will not dare to openly and fearlessly discharge their whole duty to their clients, or to themselves when they manage their own cases; and on the other hand we must not furnish them with the shield of Zeus, and thereby enable them with impunity to destroy the characters of whomsoever they please.

There are two classes of privileged communications recognized in the law in reference to actions of slander, and the privileges of counsel may sometimes fall within the one class and sometimes within the other. In one class of cases, the law protects the defendant so far as not to impute malice to him from the mere fact of his having spoken words of the plaintiff which are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to sustain his action for slander, if he can satisfy the jury, by other proof, that there was actual malice on the part of the defendant, and that he uttered the words for the mere purpose of defaming the plaintiff. In

Hastings v. Lusk.

the other class of cases the privilege is an effectual shield to the defendant; so that no action of slander can be sustained against him, whatever his motive may have been in using the slanderous words.

One of the earliest cases of the first class is Parson Prit's case, reported by Rolle, 1 Roll. Abr. 87, pl. 5. Although the report of this case is very short, it will be perfectly understood by a reference to Fox's Martyrology, where the author, in giving an account of the severe punishments inflicted by the vengeance of heaven upon some of the persecutors of the protestants during the reign of the bloody Mary, states that Grimwood, or Greenwood as he is called by Rolle, one of the perjured witnesses who was hired to swear away the life of John Cooper, an innocent person, who was convicted and hanged, was soon after destroyed by the terrible judgment of God; being suddenly seized while in perfect health, so violently that his bowels gushed out. From the report it appears the defendant, Parson Prit, having been recently settled in the parish, and not knowing all his parishioners, in preaching against the heinous sin of perjury cited this case, from the Book of Martyrs and no doubt commented severely upon Greenwood, and upon White, his forsworn companion, who by their perjury had caused an innocent man to be drawn in quarters and his wife and children to be left desolate. It turned out, however, that Greenwood was not dead, and that being a resident of that parish, he was present in the church and heard the sermon, and afterwards brought a suit against the parson for charging him with perjury. But the court held that it was a privileged communication, and the circumstances under which the words were spoken showed there was no actual malice towards the plaintiff. See also Cro. Jac. 91. This case has been followed by a numerous class depending upon the same principle; in which the speaking of the words is held to be a privileged communication, the occasion of the speaking being such, that prima facie there could have been no malicious intent to defame the person of whom they were spoken, and the interests of society requiring that the defendant should be permitted to speak freely in the situation

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