Exchequer. KENNEDY v. liability on the other, of a party making a false and defamatory E. T. 1859. imputation, written or spoken, to the injury of another. First; for what is stated by a party on his own behalf, or a witness in giving evidence in the ordinary course of a judicial proceeding, HILLIARD. there is absolute immunity from liability to an action for libel or slander. Secondly; for what is stated fairly by a person in the discharge of a public or private duty, legal or moral, or in the conduct of his own affairs in a matter in which his interest is concerned, there is a qualified protection from such action, dependent upon the absence of actual malice: Twogood v. Spyring (a) ;—and see Harrison v. Bush (b). Thirdly; for the malicious prosecution of an unfounded criminal proceeding, and for the malicious abuse, in certain cases, of the process of the law in a civil-bill proceeding (for example, in the case of a malicious arrest, or of maliciously procuring to be issued a fiat in bankruptcy), an action may be maintained, provided the proceeding be prosecuted, not only with malice, but also without reasonable and probable cause. On the two last of these propositions it is needless to observe. The first, which is now called in question in this action, is that with which we have to deal. It is, in my judgment, established by abundant authority, both of ancient and modern times. The pleadings before us commence with the third paragraph or count of the summons and plaint. It complains, by its statements and innuendoes, of a libel, imputing that the plaintiff, in the Prerogative Court, had suppressed facts, and sworn what was false in certain matters specified, for the purpose of obtaining letters of administration to his deceased brother, John Kennedy. The affidavit, as stated in the defence and admitted on the record, was made in certain matters (Kennedy, petitioner; Connor, respondentKennedy, petitioner; Kennedy, respondent), in which the present plaintiff was petitioner, and in which William Cullen, deceased, whose executor the present defendant is, was the petitioner's solicitor. Upon a requisition of the plaintiff (the petitioner) to tax Cullen's costs in those matters, the costs were, after Cullen's death, (a) 1 C., M. & R. 181; S. C., 4 Tyrw. 582. E. T. 1859. according to the course of the Court of Chancery, referred to the Exchequer. KENNEDY v. HILLIARD. 66 Taxing-master for taxation. In support of objections to certain items of the costs, before the Taxing-master, the plaintiff made an affidavit. The defence alleges that that affidavit, "among other "imputations on Hilliard and on the defendant (who had been employed as the petitioner's Counsel in the matter), stated, in "reference to certain attendances of Cullen as solicitor, and to a "fee charged in the costs as having been paid to the defendant, "as barrister, that those attendances had not been given by Cullen, "and that the fee had not been bona fide earned by the defendant;" and further stated, "that the defendant appeared to the plaintiff to "be acting more in the capacity of an assistant to Cullen, in the "conduct of his business as a solicitor, than as a barrister." The defence, after stating in substance the foregoing matters, alleges that, in answer to this affidavit of the plaintiff, "the defend"ant, being a party to said taxation, swore and used, for the pur"pose and in the course of said taxation," the affidavit containing the libellous matter of which the third count complains, "honestly "believing the same to be true, for the information of said Taxing"master and Court, and in and for the purposes of said judicial "proceeding." Upon the statements contained in this defence (which are admitted by the replication), it is plain that the defendant's affidavit formed a part of his proceeding, both as a party and as a witness, in sustaining his own interests as executor of Cullen, in a matter in which the Taxing-master was exercising, between the plaintiff and the defendant, a judicial function. In 2 Inst., p. 228, Lord Coke, after commenting on the 34th section of the Statute of Westminster, and on the statutes of 2 Ric. 2, c. 5, and 12 Ric. 2, c. 11, and stating that they applied to "extrajudicial slander," proceeds to say:-"And, therefore, if any man "bring an appeale of murder, robbery or other felony, against any "of the peers or nobles of the realme, &c., and charge them with "murder, robbery or felony, albeit the charge be false, yet shall "they have no action de scandalis magnatum, neither at the Com"mon Law, nor upon either of those statutes, for the bringing of his "action, or for affirming the same to his Councell, attorney or cur Esiter for framing of his writ, or for speaking the same in evidence E. T. 1859. Exchequer. KENNEDY v. to a jury, or for using of those words for the necessary commencement or prosecution of his action judicially; and so it is a maxim in law—que home ne serra puny pur suer des briefes en Court le HILLIARD. Roy, soit il a droit, ou a tort; and the reason thereof is, that men should not be deterred to take their remedy by due course of law." The principle here laid down by Lord Coke governed the decisions n several cases reported in the books. I shall mention some of hem. They are collected in 1 Vin. Abr., pp. 386 to 392; in Com. Dig., tit. Action on the Case for Defamation; in Sir Robert Atkins' learned argument in the Case of Sir William Williams (a) ; and in 1 Starkie on Slander, pp. 239, et seq. In Westover v. Daubinet (b), reported as Weston v. Dobniet (c), a party libelled the defendant for defamation in the Spiritual Court, and produced a witness to prove the defendant guilty. The defendant, according to the course of that Court, made an allegation in writing that the witness's evidence ought not to be received, for that he was "a perjured man," and was perjured in a cause and at an Assizes specified. It was held, on demurrer to the declaration, in an action brought by the witness for this defamation, that the action did not lie; for if it did, "every man would be deterred from taking his exception to false witnesses." In Eyres v. Sedgewicke (d), reported under different names in Cro. Jac., p. 601, 2 Roll. Rep., pp. 195, 197, and Palmer, p. 142, "a supplicavit" issued out of Chancery to the Sheriff, against William Parry. The Sheriff issued a warrant to the defendant, as a bailiff, to arrest Parry, whom the defendant accordingly arrested, but negligently suffered to escape. The defendant then came into Chancery, and made a false affidavit, that the plaintiff and others violently rescued Parry; and thereupon the plaintiff was committed to the Fleet. The plaintiff brought his action against the defendant, charging him with having made this affidavit falsely and maliciously; and on a plea of not guilty, the (a) 13 State Trials, 1384; Com. Dig. (F. 22). (b) 1 Roll. Abr. 33, pl. 1. (c) Cro. Jac. 432. (d) 1 Roll. Abr. 33, pl. 2. KENNEDY V. HILLIARD. E. T. 1859. plaintiff obtained a verdict for £300 (a). The Court arrested the Exchequer. judgment, holding (b) that "though the affidavit be false by which "he was committed to the Fleet, and so to his great damage, yet "because the affidavit was made in a legal course, though he was "not compelled by process to make it, no action on the case lies; "for then every man would be deterred from making affidavits "in such kind." In Hunter v. Allen (c), and in Cutler v. Dixon (d), similar decisions were made, on exactly the same ground (the policy of not deterring parties from bringing their complaints before a Court of Justice), in actions brought for exhibiting articles on false allegations against the plaintiffs to bind them to good behaviour. In Anfield v. Feverhill (e), the same principle was applied, in prohibition against a proceeding by libel for defamation in the Spiritual Court. In 1 Hawk. P. C., c. 28, s. 8 (1st book, c. 73, s. 8, of the old edition), there is this passage:-" But it hath "been resolved, that no false or scandalous matter contained in a "petition to a Committee of Parliament, or in articles of the peace, "or in any other proceeding in a regular course of justice, will "make the complaint amount to libel; for it would be a great dis"couragement to suitors to subject them to public prosecutions in "respect of their applications to a Court of Justice." Several other similar decisions to those which I have cited are to be found in the books, applying the same rule of protection to what is said by a party on his own behalf in a Court of Justice, though the reason which I have mentioned is not always expressed. In Boulton v. Clapham (f), cited in 1 Roll. Abr., pp. 33 and 87, as Moulton v. Clapham, the defendant, in the Court of King's Bench, in the hearing of the Court, the officers, and others, in reference to the plaintiff's affidavit, sworn for the purpose of having the defendant bound to his good behaviour, said, "there is not a word of truth in that affidavit, and I will prove it by forty witnesses." After a verdict for the plaintiff for £5, upon a plea of not guilty, the Court (a) 2 Roll. Rep. 197. (c) Palmer, 188. (b) 1 Roll. Abr. 33, 87. (e) 2 Bulst. 269; S. C., 1 Roll. Rep. 61. (f) Sir W. Jones, 431, March 10, A Exchequer. v. HILLIARD. arrested the judgment; "for the defendant, by said answer, made a E. T. 1859. "defence of himself in the Court against the charge and accusation "against him; and, therefore, it is justifiable, being in a judicial "way;" by which, "I understand," said Mr. Justice Holroyd, when citing this case in his judgment in Hodgson v. Scarlett (a), "that they" (the words) "were spoken in a Court of Justice." A similar decision had long before been made in Lord Beauchamp v. Croft (in 12 Hen. 7), of which there is a note in 3 Dy., p. 285, and a more full report in Keilwey, p. 26, in an action of scandalum magnatum, for an imputation that the plaintiff was "a forger of false deeds." The defendant, in his plea, justified, that the slander consisted in his bringing against the plaintiff a writ of forger of false deeds; "-" And by the better "opinion, in demurrer to the plea, the matter of justification is good, "and out of the intention of the law, and the statutes for slander, "&c., for no punishment was ever appointed for a suit in law, however it be false, and for vexation.” A similar rule was, in Lake v. King (b), applied to a petition to a Committee of Parliament; the Court holding "that no action lies for it, although the matter con"tained in the petition was false and scandalous, because it is in a summary course of justice, and before those who have power to "examine whether it be true or false." These authorities, notwithstanding what was said in argument in Revis v. Smith (c), do not contravene the right to sustain the old action for a conspiracy, or the modern action for malicious prosecution or malicious abuse of legal process, by which the action for a conspiracy has been, in effect, superseded in modern times, as described in the note (4) to 1 Saund., p. 229 b. For a long lapse of time no report appears in the books, of an endeavour to sustain an action such as that with which we are now dealing. But in Astley v. Young (d), of which there is a MS. note in 7 Bac. Abr., p. 313, and also a short report in 2 Lord Kenyon's Cases, p. 536, an action was brought for a libel, alleged to have been contained in an affidavit of the defendant. One count (a) 1 B. & Ald. 264. (b) 1 Saund. 131. (d) 2 Bur. 807. |