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tinent to the cause, if they are instructed by their clients to say it; and to hold them responsible for everything that is not pertinent to the case, whether they are instructed or not." 88 In this case the court further said: "In France the same limits are assigned with this sole difference that there, by positive legislation of a very recent date, the instructions must be in writing.' In Rome, while a generous freedom was inculcated on counsel in advocating the cases of their clients, the prohibition was express against profiting by this liberty to speak untruths and utter slander. Spain, in her written laws, has repeated nearly verbatim the restraints imposed by the imperial code.”'
It has been said that it makes no difference if the words are uttered in the course of a trial, whether in form they are addressed to the witness or to the court or jury."
The privilege is extended to the counsel for the interest and benefit of the party, and to allow him full scope and freedom in the support or defense of the rights of the party.
"In applying this principle the courts are liberal, even to the extent of declaring that where matter is put forth by counsel in the course of a judicial proceeding that may possibly be impertinent, they will not so regard it as to deprive its author of his privilege, because the due administration of justice requires that the rights of clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander." 92 Indeed, it has been said that "until it is shown that the defendant acted with malice Stackpole vs. Hemen, 6 Mart. 80 Hoar vs. Wood, 3 Met. (Mass).,
N. S., (La.), 481. 89 Martin's Rep. de Jures, Volume 01 Jennings vs. Paine, 4 Wis., 358. I, p. 464.
92 Youmans vs. Smith, 153 N. Y.,
and was using the judicial forms in bad faith for the purpose of assailing the plaintiff's character, the presumption must be extended to the defendant that the complaint was a privileged communication. It was and is conceded by the appellant that the court must determine whether the communication was privi
. "In determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court and a much larger allowance made for the ardent and excited feelings with which a party or counsel who naturally and almost necessarily identifies himself with his client, may become animated by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved." **
But where a party or an attorney, or counsel in such a proceeding goes out of the way to asperse and vilify another by words or writing not material or pertinent to the controversy, he is without protection, and is liable to be prosecuted as in other cases of slander or libel.95
This limitation is stated by Chief Justice Gray, in the leading case of Hoar vs. Wood, 3 Met. (Mass.), 198, as follows: “A party or counsel cannot gratify private malice by uttering slanderous expressions, either against a party, witness, or third person which have no relation to the cause or subject-matter of the inquiry.”
The question, therefore, in such cases is not whether the words spoken are true, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether * Dada vs. Piper, 41
Hun. (N. Y.)., Ou Hoar vs. Wood, 3 Met. (Mass.)., 256; 2 N. Y., 214; 47 N. E. Rep., 265.
• Gilbert vs. People, 1 Den. (N.
they were relevant and pertinent to the cause or subject of inquiry. "In an action of libel against the counsel, he cannot justify by showing his belief that it (the defamatory statement) was true, the sources of his information, or his instructions from his client." ** "It does not follow, because an attorney will be exempt from the liability for words spoken in open court in the conduct of his case, that he would be likewise exempt when repeating the words on another occasion when he was under no obligation either to the public or his client to speak in reference to the matter. While no malice would be implied, either from the character of the words or the falsity of the charge, when they were uttered in the course of a judicial proceeding, the repetition of the words, either in private conversation or in a published article in a newspaper for instance, when no public or private duty required him as to such repetition, upon the same footing as any one who speaks of another, and he speaks then at his peril if the words are not true.” 97
The rule has been invoked in regard to statement in various written pleadings and the like, such as a declaration in a justice's court;
statements in an answer to a bill of complaint in chancery," a discharge from bankruptcy,100 and specifications of opposition to an insolvent's discharge, 10 So too, it has been 102 held that affidavits presented by an attorney in a judicial proceeding pertinent to the issue were privileged notwithstanding they might have been made maliciously. In Stewart vs. Hall,103 an action against an attorney 88 McLaughlin vs. Cowley, 127 29 Hartung vs. Shaw, 130 Mich., Mass., 316.
177; 89 N. W. Rep., 701. 07 Atlanta News Pub. Co. vs. Med- 100 Marsh vs. Ellsworth, 50 N. Y.,
lock, 123 Ga., 720; 51 S. E. Rep., 756.
101 Conley vs. Key, 98 Ga., 115. e Gilbert vs. People, 1 Den. N. Y., 102 Hollis vs. Meux, 69 Cal., 625;
11 Pac, Rep., 248. 108 Stewart vs. Hall, 83 Ky., 375.
for a libel in publishing in his brief certain testimony in a former proceeding, it was held that the publication was in the discharge of his duty and was a fair report of a judicial proceeding, and was privileged.
The latest and what must be considered the controlling decision in England is to the effect that no action will lie against counsel for slanderous words spoken with reference to, and in the course of, an inquiry before a judicial tribunal, although they are uttered maliciously, and without any justification or even excuse, and from personal ill will towards the person slandered, arising out of a previously existing cause, and are irrelevant to every issue of fact contested before the court.104
SECTION 81. COMMUNICATIONS QUALIFIEDLY PRIVI
The following classes of communications have been held to be qualifiedly privileged:
Communications relating to appointment of public officers. 108
Communications regarding schools and teachers.109
Speeches or evidence in church, lodge or society meetings.111
Communications in furtherance of criminal prosecutions. 112
104 Munster vs. Lamb, 11 Q. B. D.,
588. 105 25 Cyc., 387. 106 Haight vs. Cornell, 15 Conn.,
74. 107 Howland vs. Flood, 160 Mass.,
509; 36 N. E., 482. 108 Coogher vs. Rhodes, 38 Fla., 240.
200 Rausch vs. Anderson, 75 Ill.
York vs. Pease, 2 Gray (Mass.),
282. 119 Chapman vs. Battle, 124 Ga.,
574; 52 S. E., 812.
Communications in course of mutual controversy.
Communications as to character of suitor or lover, when made by a near relative of the party concerned.118
Communications as to character of employee.
Mercantile reports. 113 Gattis vs. Kilgo, 128 N. C.,
116 Harriott Vs. Plumpton, 166 402; 38 S. E., 931.
Mass., 585. 119 Beeler vs. Jackson, 64 Md., 589;
Vs. Ristine, 105 2 Atl., 916.
Iowa, 488. 115 Van Horn vs. Van Horn, 56 N. 118 Christ vs. Bradstreet, 9 Ohio,
J. L., 318.