the English Courts have never been called upon to decide a case in which the words complained of were not pertinent to the cause in which they were spoken. In Seaman v. Netherclift, from which the principal case makes full quotations, "the statements complained of were strictly pertinent to the matter in issue." The possibility o. a different opinion, as to the effect of irrelevant testimony, is suggested by Lord BRAMWELL; the counsel for the defendant "said he was prepared to maintain that as long as a witness spoke as a witness in the witness-box, he was protected, whether the matter had reference to the inquiry or not. I am reluctant to affirm so extreme a proposition. ✶ ✶ ✶ I can scarcely think a witness would be protected in anything he might say in the witnessbox, wantonly and without reference to the inquiry;" and the Judge remarks that the words "having reference to the inquiry" ought to have a very wide and comprehensive application, and ought to extend to what a witness might naturally and reasonably say when giving evidence. But, notwithstanding these qualifying observations, there is no reason for doubting that the judgment of the Court means that the privilege of a witness is absolute and that relevancy or irrelevancy is not to be considered.

Henderson v. Broomhead, 4 H. & N. 569 (1859), is another case in which the liability of witnesses has been discussed. There an action was brought against a person who had made a scandalous, false, and malicious affidavit, in a cause pending in Court, for the purpose of defaming a person not a party to the cause. In the judgment in favor of the defendant, it is stated very broadly that no action will lie for words spoken or written in the course of any judiVOL. XXXVI.-91

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cial proceeding. By universal assent it appears that in this county no such action lies." In this case, however, as in Seaman v. Netherclift, the words were capable of being held relevant. "I can easily see how they might be relevant," says ERLE, J.; so that the judgment of the Court was not pronounced upon the legal effect of irrelevant testimony.

As stated in the principal case, the question was also considered in Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255 (1873). The defendant was sued for slander uttered by him while a witness before a military Court, and it was in effect held that as the defamatory words had been spoken by the defendant while a witness before a military Court, and had reference to the subject-matter before that Court, they were privileged, and whether they were spoken falsely and maliciously were questions altogether immaterial. KELLY, C. B., in giving judgment for the defendant, said: "No action lies against a party or witnesses for anything said or done, though falsely or maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a Court of justice;" and the observation of Lord MANSFIELD is quoted, that "neither party, witnesses, counsel, jury, nor judge can be put to answer civilly or criminally for words spoken in office." On appeal to the House of Lords (L. R. 7 H. L. 744 (1875), this judgment was affirmed, and, as quoted in the principal case, it was said that "a long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of justice."

The latest English case upon the subject is Munster v. Lamb, 11 Q. B. Div. 588 (1883), 23 AMERICAN LAW

REGISTER, 12. The action was against a solicitor for slanderous words spoken while acting as an advocate. In rendering judgment, BRETT, M. R., took occasion to discuss the liability of witnesses for slander, and his observations are as follows: “With regard to witnesses the general conclusion is, that all witnesses speaking with reference to the matter which is before the Court, whether what they say is relevant or irrelevant, whether what they say is malicious or not, are exempt from liability to any action in respect of what they state. It was at one time suggested that although witnesses could not be held liable to an action upon the case for defamation, nevertheless they might be held liable in another and different form of action on the case, namely, an action analogous to an action for malicious prosecution, in which it would be alleged that the statement complained of was false, to the knowledge of the witness, and was made maliciously and without probable cause;" but such an action cannot, according to the authorities, be maintained.

We now come to the case of Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195 (1860), in which is to be found the most careful examination of the question that has come from the Courts of the British empire. The action was for libel, for false swearing in a judicial trial. In the course of a long opinion, and after a review of the English cases and a statement of the reasons on which they are based, PIGOT, C. B., says: "In my judgment, the immunity of a party from an action for defamation for what is said or written or sworn by him on his own behalf in a judicial proceeding, attaches whether what he states be or be not material. The reason of the rule of law which protects him applies to his statement on his own

behalf, wholly irrespective of their immateriality. The difficulty is often great, to one skilled in the law, of determining upon the questions of the irrelevancy or immateriality of statements or of evidence. If a witness shall be bound to determine first what are the exact questions at issue in the cause, and next what is the exact line at which statements or evidence shall be material, and to determine this at the peril of an action for defamation if he be wrong, if his word be defamatory, the protection which the law professes to give him would be nearly nugatory. That purpose is to give him the courage to resort as a party to the legal tribunals for justice or as a witness to give his evidence before those tribunals, undeterred by the fear of a prosecution for libel. It is impossible that he can be free from that fear, if his immunity must depend upon his not mistaking what is not material for what is, and upon his rightly distinguishing what is from what is not libel or actionable slander." In the same case, GREEN, B., after reviewing the cases in which the privilege of counsel in argument is held to be restricted to what is relevant to the matter before the Court, says: "Assuming the inquiry as to relevancy to be open and material in the case of language used by a counsel, I cannot find any satisfactory authority for the position that it is so in the case of a party to a proceeding or a witness. Considering the foundation of the rule, which is, that public policy requires that a man shall not be deterred by the fear of an action from instituting a legal proceeding or giving full and free testimony for the advancement of justice, I do not see how the protection intended to be afforded to such a person can have its full and effectual operation, if he is, at his peril, to see to the relevancy and per

tinence of his statement. A counsel being legis peritus and retained for a client and being at liberty to exercise his own discretion, may possibly be

differently circumstanced. It may

not be unreasonable to expect from him a greater degree of circumspection."

Turning now to the American decisions, we find that the principal case, Hunckel v. Voneiff, is the only one in this country which adopts in full the law as laid down in England. In Louisiana, indeed, it was said in Terry v. Fellows, 21 La. An. 375 (1869), that "the administration of justice requires the testimony of witnesses to be unrestrained by liability to vexatious litigation. The words they utter are protected by the occasion and cannot be the foundation of an action for slander." This case is cited in Hunckel v. Voneiff as an authority for the absolute privilege of a witness, but its citation for that purpose is misleading since it was modified in the subsequent case of Burke v. Ryan, 36 La. An. 951 (1884), by "this qualification, that statements thus made in the course of an action, must be pertinent and material to the issue."

The leading case in this country upon privilege in judicial proceedings is without doubt Hoar v. Wood, 3 Metc. 193 (1841). The action was against a person who conducted a prosecution before a justice of the peace, and the question of the privilege of a witness was not directly involved. But the reasoning of SHAW, C. J., in that case has been applied in later Massachusetts cases to the privilege of witnesses, so that the observations of the learned judge are properly considered. "We take the rule to be well settled by the authorities," says the Court, "that words spoken in the course of judicial proceedings, though

they are such as impute crime to another, and therefore if spoken elsewhere would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry. The question therefore in such cases is whether the words were spoken in the course of judicial proceedings and whether they were relevant and pertinent to the cause or subject of inquiry. And in determining what is pertinent much latitude must be allowed to the judgment and discretion of those who are interested in the conduct of a case in Court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel may become animated. * * * Still this privilege must be restrained by some limit, and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions either against a party, witness, or third persons, which have no relation to the cause or subject matter of the inquiry."

In Rice v. Coolidge, 121 Mass. 393 (1876), the privilege of a witness was more directly considered. "It seems to be settled by the English authorities," says the Court, "that judges, counsel, parties, and witnesses are absolutely exempted from liability for defamatory words published in the course of judicial proceedings. The same doctrine is generally held in the American Courts, with the qualification as to parties, counsel, and witnesses, that in order to be privileged, the statements made in the course of an action must be pertinent and material to the case;" and the remarks of SHAW, C. J., given above, were quoted and approved. And in McLaughlin v. Cowley, 127 Mass. 316 (1879), after stating the law as announced in Hoar v. Wood, the Court says: "The quali

fication of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice."

In Vermont, the question has been considered in Mower v. Watson, 11 Vt. 536 (1839), in a careful opinion by Judge REDFIELD; and the conclusion is that an action against a witness for slander is maintainable, if the false statements were irrelevant and malicious. The defendant was sued for slander spoken while a party to a case on trial. The Court says: "If any one considers himself aggrieved, in order to sustain an action for slander he must show that the words spoken were not pertinent to the matter in progress, and with a view to defame him. So that if the words spoken were pertinent to the matter in issue, the party and counsel may claim full immunity from an action of slander, however malicious might have been his motive in speaking them. The plaintiff in order to maintain his action must prove, first, that the words spoken were not pertinent to matter then in hand, and, second, that they were not spoken bona fide."

White v. Carroll, 42 N. Y. 161 (1870), is hardly worthy of the attention sometimes given to it. W., an allopathic physician, while testifying as a witness, went out of his way to call C., a homœopathic physician, a "quack." In sustaining a judgment for the plaintiff the Court says: "If the defendant, in testifying as a witness, and as such entitled to the protection of law, in using the words proved, was actuated by malice; if he used the words for the mere purpose of defaming the plaintiff, then the law withdrew the protection it would otherwise have afforded him, and he became amenable to the con

sequences of uttering the slander." The opinion in this case is very offhand, and contains no discussion of principles nor citation of authorities. It seems, however, to have been referred to, without disapproval, in Marsh v. Ellsworth, 50 N. Y. 309 (1872), in which it is said: "The case (White v. Carroll) shows that the Court held that the answer given to the question put to the defendant as a witness before the surrogate, was not material and pertinent to the inquiry, and further held it privileged if the defendant when he gave it in good faith believed it was."

In Calkins v. Sumner, 13 Wisc. 193 (1860), a judgment was allowed to be entered against the defendant witness in the lower Court, but was reversed on appeal. The true rule, it is said, in regard to a witness's liability to an action for what he may say pending his examination before a judicial tribunal is that he is not answerable in damages for any statements he may make, which are responsive to questions put to him and which are not objected to and ruled out by the Court, or concerning the impertinency or impropriety of which he receives no advice from the Court. If what is said or written be pertinent and material to the cause or subjectmatter of inquiry, the speaker or writer is not liable to an action, however much he may be actuated by hatred or ill-will. It is one of the many instances where the claims of the individual must yield to the dictates of public policy.

In Lawson v. Hicks, 38 Ala. 279 (1862), an action was brought against the defendant on account of slanderous interrogatories filed by him in a case to which he was a party; and while the opinion of the Court does not specifically mention witnesses, they seem to be included in the term

parties. "To the catalogue of absolutely privileged communications belong all words spoken or written by the Court, the parties, or their counsel, in the due course of judicial proceedings, which may be relevant. The relevancy or pertinency of the caluminous matter is indispensable to its perfect and absolute freedom from all actionable quality. The law designs, in the adoption of the principle above stated, to relieve those participating in the proceedings of Courts of justice from the restraint which might result from the apprehension of lawsuits.

The accomplishment of that object does not require that the privilege should be extended further than to relevant communications. A further extension would license malignity-to pervert judicial proceedings to the accomplishment of its wicked purposes. The avoidance of such a consequence is scarcely less important than the guarding of the unembarrassed freedom of judicial investigation." The latest American case, excepting Hunckel v. Voneiff, is Shodden v. McElwee, Supr. Ct. Tenn., Nov. 1887, in which the defendant, on the witness-stand, charged the plaintiff with the theft of his horse. "The act of testifying as a witness," says the Court, "must be either in the exercise of a right or the performance of a duty, and in either case the act must be performed in good faith. If he avails himself of his position as a witness to maliciously answer with a knowledge that such answer is not pertinent or relevant, the law withdraws the protection it would otherwise have afforded him. *** We fully recognize the importance to a due administration of justice, of upholding the privilege accorded parties to write and speak freely in judicial proceedings; but in so doing, we must not lose sight of the fact that it con

cerns the peace of society that the good name and repute of the citizen shall not be exposed to the malice of individuals, who, under the supposed protection of absolute privilege, make use of the witness-box to volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice. The privilege of a witness is great, but it must not be mistaken for unbridled license."

To the above cases several may be added to the same effect, but not so satisfactory in discussion or citation: Smith v. Howard, 28 Iowa, 51 (1869); Morgan v. Booth, 13 Bush (Ky.), 480 (1877); Lea v. White, 4 Sneed (Tenn.), 111 (1856); Barnes v. McCrate, 32 Me. 442 (1851); Wyatt v. Buell, 47 Cal. 624 (1874). There are still other cases, commonly cited as authorities by the text-book writers, which do not, in reality, touch the question at issue, and are of no value whatever in the discussion: Briggs v. Byrd, 12 Iredell (N. Ca.), 377 (1851); Goslin v. Cannon, 1 Harr. (Del.) 3 (1832); Liles v. Gaster, 42 Ohio St. 631 (1885); Hill v. Niles, 9 N. H. 9 (1837); Verner v. Verner, 64 Miss. 321 (1886); Hutchinson v. Lewis, 75 Ind. 55 (1881), and many more.

In those jurisdictions where the question is as yet unsettled the Courts will no doubt be guided, in the conflict of authority, by their views regarding the requirements of public policy. The Maryland Court in Hunckel v. Voneiff says, that being at liberty to settle the law for Maryland according to its best judgment it is convinced, after consideration, that "the privilege of a witness should be as absolute as it has been decided to be by the English authorities."

Baltimore.

EDGAR G. MILler, Jr.