Hunckel v. Voneiff

Miller, J., delivered the-opinion of the Court. This is an action of libel or slander against a witness in an equity cause, whose testimony was written down by the examiner, returned to the Court and read at the hearing before the Judge. The alleged libelous, or slanderous statements are contained in the testimony thus taken. There was a demurrer to each of the two counts in the declaration, which the Court sustained and, thereupon, gave judgment for the defendants.

From that judgment this appeal is taken. ¹⁸⁷ In the able arguments of counsel the whole field of the law on the question of privilege has been explored, and wx* believe all the decisions, as well as the opinions and dicta of eminent Judges have been cited and pressed upon our attention. It would be a tedious task to review them in detail, and a hopeless one to attempt to reconcile them. The question is. a new one in this State. No precedent for such an action has been found in our reports or judicial records, and we believe this is the first attempt to bring one since a Court of justice was first established in the Colony of Maryland, a period of more than two centuries.

This fact while it may not be conclusive against the right to maintain the action, certainly leaves us free to follow and adopt those authorities which state the law in accordance with what, in our judgment, the administration of justice and a sound public policy demand. The case now before us is not that of an advocateXmt of a iwitness, and in our opinion i't is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony. Mr. Townshend in his book on Slander and, Libel, wcill says: “The due administration of justice requires that a witness should speak according to his belief, the truth, the whole truth and nothing but the truth, without regard to the consequences ; and he should be encouraged to do this by the consciousness that, except for any wilfully false statement, which is perjury, no matter that his testimony may, in fact, be untrue, or that loss.to another ensues by reason of his testimony, no action for slander can be maintained against him. It is not simply a matter between individuals; it concerns the administration of justice.

The witness speaks in the hearing ¹⁸⁸ and under the control of the Court, is compelled to speak, with no right to decide what is immaterial; and he should not he subject to the possibility of an action for his words.” Townshend on Slander and Libel, see. 223. But there is more substantial authority for the absolute character of the privilege. In the standard work of Starkie on Slander it is laid down as the result of the English decisions that “witnesses, like jurors appear in Court in obedience to the authority of the law, and therefore may be considered, as well as jurors, to be acting in the discharge of a public duty; and though convenience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy in case of a combination of two or more to give false evidence, they are not responsible in a civil action for any reflections throion out in delivering their testimony.” 1 Starkie on Slander, 242. This statement of the law has been frequently quoted with approval by the English Courts, and in some instances by Courts and text-writers in this country.

Terry vs. Fellows, 21 La. Ann. Rep., 275 . In support of the absolute character of the privilege a long list of English decisions, ancient and modern, has been cited. Without referring to the earlier ones we mention some of those decided in more recent times, which have special reference to the case of parties and witnesses.

Revis vs. Smith, 86 Eng. C. L. Rep., 126; Henderson vs. Broomhead, 4 H. & N., 568; Kennedy vs. Hilliard, 10 Irish C. L. Rep., 195; Dawkins vs. Rokeby, 4 Fost. & Fin., 806; Dawkins vs. Rokeby, Law Rep., 8 Queen’s Bench, 255, and same case on appeal in the House of Lords, Law Rep. 7 H. L., 744. In these cases Wtlles, .Coleridge, C. J., Cockburn, C. J., Blackburn, Kelly, C. B., Creswell, Lord Cairns, and other eminent jurists have again and again'expressed ¹⁸⁹ the opinion that the privilege of a witness should be absolute, have pointed out the great benefit of such privilege to the administration of justice, and have deprecated in strong terms the evil consequences they thought would ensue if witnesses were placed under any intimidation, or the fear of being involved in litigation by reason oí what they might say when under examination. In Dawkins vs. Rokeby, the Judges were called in and gave unanimously an answer to the question put to them by the House of Lords, in which they say: “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.

This does not proceed on the ground that the occasion rebuts the prima/«ciepresumption that words disparaging to another are maliciously spoken or written. If that were all, evidence of express malice would remove this ground. But the principle we apprehend is, that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of justice are numerous and uniform.” .

After this decision the case of Seaman vs. Netherclift arose, which was tried before Coleridge, C. J., at nisi prius and afterwards decided by him and Brett, J., in Law Rep., 1 C. P. Div., 540, and subsequently by the Court of Appeal in Law Rep., 2 C. P. Div., 53. The Judges who heard the case on appeal were Cockbuejst, C. J., Bramwell, J. A., and Ambhlett, J. A., and they disposed of it at once. Cockburn, C. J., said: “If there is any thing as to which the au thority is overwhelming it is that a witness is privileged to the extent of what he says in course of his examination. Heither is that privilege affected by the relevancy or irrelevancy of what he says; for then he would be ¹⁹⁰ obliged to judge of what is relevant or irrelevant, and questions might be, and are, constantly asked which are not strictly relevant to the issue.

But that, beyond all question, this unqualified privilege extends to a witness is established by a long series of cases, the last of which is Dawkins vs. Lord Rokeby, after which contend to the contrary is hopeless”. It was there expressly decided that the evidence of a witness with reference to the inquiry” (the inquiry referred to being a military Court of inquiry instituted to investigate the conduct of an officer) “is privileged notwithstanding it may be malicious; and to ask us to decide otherwise is to ask what is beyond our power. But I agree that if in this case beyond being spoken maliciously the words had not been spoken in, the character of a witness or not while he was giving evidence in the case, the result might have been different.. Eor I am very far from desiring tp be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected.

I quite agree that what he says before he enters or after he has left the witness-box is not privileged, which was the question in the case (Trotman vs. Dunn, 4 Camp., 211,) before Lord Ellenborough. Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked: Were you at York on a certain day '? and he were to answer: Yes, and A. B. picked my pocket there; it certainly might well be said in such a.case that the statement was altogether dehors the character of witness, and not within the privilege.” So in speaking upon the samé subject Bramwell, J. A., says: “Suppose while the witness is in the box, a man were to come in at the door, and the witness were to ex ¹⁹¹ claim, 'that man picked my pocket.’ I can hardly think that would be privileged. I can scarcely think a witness would be protected for anything he may say in the witness-box wantonly and without reference to the inquiry. 1 do not say he would not be protected. It might be' held that it was better that everything a witness said should be protected than that witnesses should be under the impression that what they said in the witness-box might subject them to an action.

I certainly should pause before I affirmed so extreme a proposition, but without affirming that, I think the words 'having -reference to the inquiry’ ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury, or the exclusion of which by the Judge would give ground for a new trial; but ought to extendió that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness.” Amphtjgtt, J. A., on the same subject says: “How it would have been if this statement had been volunteered by the defendant, without it being necessary or in any way arising from questions he had been asked, we need not express any opinion. In such a case it may be that the words would not have been spoken in his office of a witness. I must by no means be taken as’expressing an opinion that in such a case the witness would not be protected. I can see many reasons why a witness should be absolutely protected for anything he said in the witness-box.

If he did voluntarily make a scandalous attack while giving evidence he would be guilty of a gross contempt of Court, and might be committed to prison by the presiding Judge; or if he were before an inferior tribunal, and he persevered in his scandalous statements, he might be liable to an indictment for obstructing the course of justice.” Much also was ¹⁹² said as to the privilege of a witness in the still more recent case of Munster vs. Lamb, in the Court of Appeal (Law Rep., 11 Q. B. Div., 588,) and we feel ourselves at liberty to adopt, if we choose, what was said in that case on that subject. The Judges, (Brett and Fry) there again affirmed the absolute character of this privilege in the broadest terms. “Why should," says Fry, L. J., “a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which Is malicious and affects the character of another? The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against Judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise numerous actions would be brought against persons who were merely discharging their duty.

It must always be borne in mind that it is nót intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona ficle, who, under a different rule, would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions." And he refers to the fact that Courts of justice have control over all proceedings before them, and have ample powers to check improper conduct on the part of witnesses as well as of solicitors and counsel. Such are the English decisions. As to authority on the