and even if he volunteers an observation (a practice much to be discouraged) still if it has reference to the matter in issue, or fairly arises out of any question asked him by counsel, though only going to his credit, such observation will also be privileged. (Seaman v. Netherclift, 1 C. P. D. 540; 2 C. P. D. 53; 46 L. J. C. P. 128.) But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by the witness maliciously for his own purposes, would not be privileged, and would also probably be a contempt of court. So, of course an observation made by a witness while waiting about the Court, before or after he has given his evidence, is not privileged. (Trotman v. Dunn, 4 Camp. 211; Lynam v. Gowing, 6 L. R. Ir. 259.) Nor is a private letter written to the judge to influence his decision. (Gould v. Hume, 3 C. & P. 625.) Such a letter is strictly a contempt of court. Affidavits, Pleadings, &c. Every affidavit sworn in the course of a judicial proceeding before a court of competent jurisdiction is absolutely privileged, and no action lies therefor, however false and malicious may be the statements made therein. (Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195; Henderson v. Broomhead, 4 H. & N. 569; 28 L. J. Ex. 360; 5 Jur. N. S. 1175.) So is any indorsement on a writ. (Lord Beauchamps v. Sir R. Croft, Dyer, 285 a.) So are all pleadings and instructions to counsel. (See Bank of British North America v. Strong, 1 App. Cas. 307; 34 L. T. 627.) So are articles of the peace exhibited against the plaintiff. (Cutler v. Dixon, 4 Rep. 14.) The only exception is where an affidavit is sworn recklessly and maliciously before a Court that has no jurisdiction in the matter, and no power to entertain the proceeding. (Buckley v. Wood, 4 Rep. 14; Cro. Eliz. 230; R. v. Salisbury, 1 Ld. Raym. 341; Lewis v. Levy, E. B. & E. 554; 27 L. J. Q. B. 282; 4 Jur. N. S. 970.) In all other cases the plaintiff's only remedy is to indict the deponent for perjury, if he dare. (Doyle v. O'Doherty, Car. & M. 418; Astley v. Younge, 2 Burr. 807.) The Court will, however, sometimes order scandalous matter in such an affidavit to be expunged. ( (Christie v. Christie, L. R. 8 Ch. 499; 42 L. J. Ch. 544; 21 W. R. 493; 28 L. T. 607.) But, even for matter thus expunged, no action can be brought. (Kennedy v. Hilliard, 10 Ir. C. L. R. 195; 1 L. T. 578.) In short, "neither party, witness, counsel, jury or judge can be put to answer civilly or criminally for words spoken in office." (Per Lord Mansfield in R. v. Skinner, Lofft, 56.) Illustrations. A woman was charged before a court of petty sessions with administering drugs to the inmates of the plaintiff's house in order to facilitate the commission of a burglary there. The plaintiff was the prosecutor, and the defendant, who was a solicitor, appeared for the defence of the woman. It was admitted that she had been at the plaintiff's house on the evening before the burglary; and there was some evidence, though very slight, that a narcotic drug had been administered to the inmates of the plaintiff's house on that evening. During the proceedings before the magistrates the defendant, acting as advocate for the woman, suggested that the plaintiff might be keeping drugs at his house for immoral or criminal purposes. There was no evidence called or tendered that the plaintiff kept any drugs in his house at all. Held, that no action would lie against the defendant for these words. Munster v. Lamb (C. A.), 11 Q. B. D. 588; 52 L. J. Q. B. 726; 32 W. R. 243; 49 L. T. 252; 47 J. P. 805. Defendant, an expert in handwriting, gave evidence in the Probate Court in the trial of Davies v. May, that, in his opinion, the signature to the will in question was a forgery. The jury found in favour of the will, and the presiding judge made some very disparaging remarks on defendant's evidence. Soon afterwards defendant was called as a witness in favour of the genuineness of another document, on a charge of forgery before a magistrate. In crossexamination he was asked whether he had given evidence in the suit of Davies v. May, and whether he had read the judge's remarks on his evidence. He answered, "Yes." Counsel asked no more questions, and defendant insisted on adding, though told by the magistrate not to make any further statement as to Davies v. May: "I believe that will to be a rank forgery, and shall believe so to the day of my death." An action of slander for these words having been brought by one of the attesting witnesses to the will: held, that the words were spoken by defendant as a witness, and had reference to the inquiry before the magistrate, as they tended to justify the defendant, whose credit as a witness had been impugned; and the defendant was therefore absolutely privileged. Seaman v. Netherclift, 1 C. P. D. 540; 45 L. J. C. P. 798; 24 W. R. 884; 34 L. T. 878; (C. A.) 2 C. P. D. 53; 46 L. J. C. P. 128; 25 W. R. 159; 35 L. T. 784. A servant summoned his master before a court of conscience for a week's wages. The master said: "He has been transported before, and ought to be transported again. He has been robbing me of nine quartern loaves a week." Lord Ellenborough held the remark absolutely privileged, if the master spoke them in opening his defence to the Court; but otherwise if he spoke them while waiting about the room and not for the purpose of his defence. Trotman v. Dunn, 4 Camp. 211. [N.B.-The latter part of the headnote to this case is misleading.] Plaintiff made an affidavit in an action he had brought against defendant in the King's Bench. Defendant (apparently conducting his own case) said in court, in answer to this affidavit, "It is a false affidavit, and forty witnesses will swear to the contrary." Held, that no action lay for these words. Boulton v. Chapman (1640), Sir W. Jones, 431; March, 20, pl. 45. A charge of felony made by the defendant when applying in due course to a justice of the peace for a warrant to apprehend the plaintiff on that charge is absolutely privileged. Ram v. Lamley, Hutt. 113. See Johnson v. Evans, 3 Esp. 32. Weston v. Dobniet, Cro. Jac. 432. Dancaster v. Hewson, 2 Man. & R. 176. Defamatory communications made by witnesses or officials to a court-martial, or to a court of inquiry instituted under articles of war, are absolutely privileged. Keighley v. Bell, 4 F. & F. 763. Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255; 42 L. J. Q. B. 63; 21 No action lay for defamatory expressions contained in a bill in Chancery. No action will lie for defamatory expressions against a third party, contained in an affidavit made and used in the proceedings in a cause, though such statements be false, to the knowledge of the party making them, and introduced out of malice. Henderson v. Broomhead, 28 L. J. Ex. 360; 4 H. & N. 569; 5 Jur. Astley v. Younge, 2 Burr. 807; 2 Ld. Kenyon, 536. Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195; 2 Jur. N. S. 614. If application be bona fide made to a court which the defendant by a pardonable error honestly believes to have a jurisdiction which it has not, the privilege will not be lost merely by reason of this error. Buckley v. Wood, 4 Rep. 14; Cro. Eliz. 230. M'Gregor v. Thwaites, 3 B. & C. 24; 4 D. & R. 695. But in other cases an affidavit made voluntarily when no cause is pending, or made coram non judice, is not privileged as a judicial proceeding. Maloney v. Bartley, 3 Camp. 210. An attorney's bill of costs is in no sense a judicial proceeding, though delivered under a judge's order, and can claim no privilege. Bruton v. Downes, 1 F. & F. 668. Reports of judicial proceedings are not absolutely privileged, however fair and accurate they may be; the plaintiff may still prove that the reporter acted maliciously in sending the report to the newspaper. Stevens v. Sampson, 5 Ex. D. 53; 49 L. J. Q. B. 120; 28 W. R. 87; 41 L. T. 782. Salmon v. Isaac, 20 L. T. 885. (iii.) Naval and Military affairs, &c. A similar immunity, resting also on obvious grounds of public policy, is accorded to all reports made by a military officer to his military superiors in the course of his duty, and to evidence given by any military man to a court martial or other military court of inquiry; it being essential to the welfare and safety of the State that military discipline should be maintained without any interference by civil tribunals. In short, "all acts done in the honest exercise of military authority are privileged." The law is, of course, the same as to the navy. Naval and military matters are for naval and military tribunals to determine, and not the ordinary civil courts. (Hart v. Gumpach, L. R. 4 P. C. 439; 9 Moore P. C. C. N. S. 241; 42 L. J. P. C. 25; 21 W. R. 365; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; 39 L. J. Q. B. 53; 18 W. R. 336; 21 L. T. 584; Dawkins v. Lord Rokeby, L. R. 7 H. L. 744; 45 L. J. Q. B. 8; 23 W. R. 931; 33 L. T. 196; 4 F. & F. 806.) A similarly absolute privilege extends to all acts of State, and to the official notification thereof in the London Gazette, to all State papers, and to all advice given to the Crown by its ministers. Illustrations. A military court of inquiry may not be strictly a judicial tribunal, but where such court has been assembled under the orders of the General Commanding in-Chief in conformity with the Queen's Regulations for the government of the army, a witness who gives evidence thereat stands in the same situation as a witness giving evidence before a judicial tribunal, and all statements made by him thereat, whether orally or in writing, having reference to the subject of the inquiry, are absolutely privileged. Dawkins v. Lord Rokeby, L. R. 7 H. L. 744; 45 L. J. Q. B. 8; 23 W. R. 931; 33 L. T. 196; in the Exch. Ch. L. R. 8 Q. B. 255. Goffin v. Donnelly, 6 Q. B. D. 307; 50 L. J. Q. B. 303; 29 W. R. 440; 44 L. T. 141; 45 J. P. 439. And see Keighley v. Bell, 4 F. & F. 763. Home v. Bentinck, 2 B. & B. 130; 4 Moore, 563. The defendant, being the plaintiff's superior officer, in the course of his military duty forwarded to the Adjutant-General certain letters written by the plaintiff, and at the same time, also in accordance with his military duty, reported to the Commander-in-Chief on the contents of such letters, using words defamatory of the plaintiff. It was alleged that the defendant did so maliciously, and without any reasonable, probable, or justifiable cause, and not in the bona fide discharge of his duty as the plaintiff's superior officer. Held, on demurrer, by the majority of the Court of Q. B. (Mellor and Lush, JJ.), that such reports being made in the course of military duty were absolutely privileged, and that the civil courts had no jurisdiction over such purely military matters. Cockburn, C. J., dissented on the grounds that it never could be the duty of a military officer falsely, maliciously, and without reasonable and probable cause to libel his fellow-officer, that the courts of common law have jurisdiction over all wilful and unjust abuse of military authority, and that it would not in any way be destructive of military discipline or of the efficiency of the army to submit questions of malicious oppression to the opinion of a jury. Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; 39 L. J. Q. B. 53; 18 W. [N.B.-There was no appeal in this case. The arguments of Cockburn, C. J., deserve the most careful attention. In Dawkins v. Lord Rokeby, supra, the decision of the House of Lords turned entirely on the fact that the defendant was a witness. Neither Kelly, C. B., nor any of the Law Lords (except perhaps Lord Penzance), rest their judgment on the incompetency of a court of common law to inquire into purely military matters. The Court of Exchequer Chamber no doubt express an opinion that "questions of military discipline and military duty alone are cognisable only by a military court, and not by a court of law." (L. R. 8 Q. B. 271.) But after referring to "the eloquent and powerful reasoning of L. C. J. Cockburn in Dawkins v. Lord F. Paulet," the Court goes on to express its satisfaction that the question "is yet open to final consideration before a court of the last resort." However, in a court of first instance, at all events, it must now be taken to be the law that the civil courts of common law can take no cognisance of purely military or purely naval matters (Sutton v. Johnstone (1785), 1 T. R. 493; Grant v. Gould (1792), 2 Hen. Bl. 69; Barwis v. Keppel (1766), 2 Wils. 314); but wherever the civil rights of a person in the military or naval service are affected by any alleged oppression or injustice at the hands of his superior officers or any illegal action on the part of a military or naval tribunal, there the civil courts may interfere. Re Mansergh, 1 B. & S. 400; 30 L. J. Q. B. 296; Warden v. Bailey, 4 Taunt. 67.] |