Maulsby v. Reifsnider

Robinson, J., delivered the opinion of the Court. This is a suit against an attorney at law for slander. The defendant pleads in bar of the action, that the alleged defamatory words set out in the declaration were spoken by him in his capacity as counsel, in the trial of a cause in a Court of justice. To this, the plaintiff replied that the words thus spoken, were not spoken in reference to said cause, and “had no reference to said action, or to any subject-matter involved in said action, or to any judicial inquiry which was going on, or being had in said action.” To this replication, the defendant demurred, and in sustaining the demurrer, the Court decided as matter of law, that if the defamatory words Avere spoken by the defendant as counsel in the trial of a cause in a Court of justice, the action could not be maintained, even though the plaintiff should prove that the words thus spoken Avere false, and were known to be false by the defendant, and even though they AAere spoken maliciously, and even though they had no reference to said cause or to any ¹⁵¹ subject-matter or to any judicial inquiry involved in said action.

In other words, the Court decided that the privilege of counsel in the trial of a cause is an absolute and unqualified privilege, and although he is subject to the authority of the Court for the abuse of this privilege, and may be punished for misbehavior or misconduct, he cannot be held liable in an action of slander brought by the person injured. The question which is thus presented for the first time for the decision of the Court is one of great importance, involving on the one hand the rights and privileges of counsel in the trial of causes in the discharge of a professional duty; and on the other the rights of the citizen whose character may have been maliciously and wantonly assailed. The case has been very fully and ably argued on both sides, and reference has been made to nearly all the decisions both in England and in this country on the subject. All agree, that counsel are privileged and protected to a certain extent, at least, for defamatory words spoken in a judicial proceeding, and words thus spoken are not actionable, which would in themselves be actionable, if spoken elsewhere.

He is obliged in the discharge of a professional duty to prosecute and defend the most important rights and interests, the life it may be, or the liberty or the property of his client, and it is absolutely essential to the administration of justice that he should be allowed the widest latitude in commenting on the character, the conduct and motives of parties and witnesses and other persons directly or remotely connected with the subject-matter in litigation. And to subject him to actions of slander by every one who may consider himself aggrieved, and to the costs and expenses of a harassing litigation, would be to fetter and restrain him in that open and fearless discharge of dutv which he owes to his client. ¹⁵² and which the demands of justice require. Not that the law means to say, that -one, because he is counsel in the trial of a cause, has the right, abstractly considered, deliberately and maliciously to slander another, but it is the fear that if the rule were otherwise, actions without number- might he brought against counsel who had not spoken falsely and maliciously. It is better therefore to make the rule of law so large that counsel acting bona fide in the discharge of duty, shall never be-troubled, although by making it so large, others who-have acted mala fide and maliciously, are included.

The question whether words spoken by counsel were spoken maliciously or in good faith, are, and always-will he, open questions, upon which opinion may differ, and counsel, however innocent, would be liable if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege merely of counsel, but the privilege of clients, and the evil, if any, resulting from it must he endured for the sake of the great good which is thereby secured. But this privilege is not an absolute and unqualified privilege, and cannot he extended beyond the reason and principles on which it is founded. The question then is what is the extent and limit to this privilege ?

This can best he answered by a consideration of the-cases in which it has been determined. In the earliest of the’leading cases on the subject, Brook vs. Sir Henry Montague, Croke Jac., 50, decided in 1605, and argued by Lord Coke, and Yelverton, it was held that this privilege protected counsel, provided the slanderous words spoken were relevant or pertinent to the matter. “But matter” said Popham, J., “not pertinent to the issue or matter in question he need not deliver, for he is to discern in his discretion what he is to deliver and what not, and although it be false, he is excusable being pertinent to the matter.” ¹⁵³ Subsequently in the noted case of Hodgson vs. Sir James Scarlett, afterwards Lord Abinger, 1 Barn. & Ald., 232, the rule laid down in Brook vs. Montague, was expressely recognized and approved. This case was elaborately argued, and was decided after full consideration, each of the Judges delivering his own views. Lord Ellenborougii whilst admitting that the language used by the defendant was too strong, and too much to say, as between man and man, yet held that the action could not be maintained because the words spoken were pertinent to the issue.

Justice Bayley, said: “The rule seems to be correctly laid down in Brook vs. Sir Henry Montague, ‘that a counsellor hath a privilege to enforce anything which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false.’ Ro mischief will ensue in allowing the privilege to that extent.” Mr. Justice Abbott: “The words were spoken in a course of judicial enquiry, and were relevant to the matter in issue. It would be impossible that justice could be well administered, if counsel were to be questioned for the too great strength of their expressions.” Mr. Justice Holroyd, after referring to Buckley vs. Wood, 4 Coke Rep., 146, and Cutler vs. Dixon, 4 Coke, 14, says: “These cases show the privilege possessed by parties themselves; and from these authorities it appears that no action is maintainable against the party, nor consequently against counsel who is in a similar situation, for words spoken in the course of justice if they be fair comments upon the evidence and be relevant to the matter in issue.” ¹⁵⁴ Again in Mackay vs. Ford, 5 Hurl. & Norman, 790, Pollock, C. B., referring to the slanderous matter complained of said: “The question is, was it relevant? I think it was, because it was pertinent to the question whether the agreement had been fully determined. The words were used by the defendant in the character of counsel in a Court of justice, and being relevant to the matter in hand, the speaking of them was justifiable.” Bramwell, J.: “The words spoken, having been pertinent to the question * * * the rule must. be absolute to enter a non-suit.” Chastnell, B.: “The words in question were spoken in the course of a judicial proceeding in which they were not irrelevant.” It thus appears that from the decision in Brook vs. Montague, in 1605, to Mackay vs. Ford, decided in 1860, a period of more than two hundred and fifty years, relevancy of the words spoken was considered essential to justify the privilege.

And so the law was understood by all the most eminent commentators on the subject. Blackstone says: “A counsellor is not answerable for any matter spoken relative to the cause in hand; if it be impertinent to the cause in hand he is then liable to an action' from the party injured.” .In Folkard’s Starkie on Slander, 4 Eng. Ed., sec. 362, and Addison on Torts, Ed., 1870, the privilege of counsel is limited expressly to words relative to the inquiry. We come now to Munster vs. Lamb, Law Rep., 11 Q. B. Div., 588, decided in 1883, which is relied on in support of the ruling below.

In that case, it was held 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 were uttered maliciously and without any justification or even excuse, and from personal ill-will towards the person slandered, arising out of a previously existing ¹⁵⁵ cause, and are irrelevant to every issue of fact contested "before the Court. Biiett, Master of the Rolls, said : “'For the purpose of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously; that is to say, not with the object of doing something useful towards the defence of his client; I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill-will or anger towards the prosecutor, arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the Court where they were uttered; nevertheless, inasmuch as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been.” “The rule is founded upon public policy. With regard to counsel, the question of malice, bona fides, and relevancy cannot be raised; the only question is, whether what is complained of has been said in the course of the administration of the law. If that be so, the case against counsel must be stopped at once.

Ho action of any kind, no criminal prosecution can be maintained against- a defendant, when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry.” Fry, L. J., was of the same opinion. A judgment thus deliberately rendered by Judges so eminent, is entitled, of course, to the highest consideration; but with deference we must say that the absolute and unqualified privilege as thus laid down, is not, in our opinion, supported by Revis vs. Smith, Henderson vs. Broomhead, Dawkins vs. Lord Rokeby or Seaman vs. Netherclift, the cases relied on by the Court; nor can it be sustained by any sound principle of public policy. ¹⁵⁶ Now in Revis vs. Smith, 18 Com. Bench, 125, the count in the declaration is not for libel, hut for maliciously, and without reasonable and prohahle cause, making a false .affidavit in a cause pending in chancery, containing injurious representations against the plaintiff as an auctioneer, by means of which the Court declined to appoint him as auctioneer to sell certain real estate. Mr. Justice Creswell rested his judgment on the ground that the action was without precedent, and that it would he highly inconvenient to hold a witness liable where he gave evidence relevant to the cause.

Mr. Justice Crowder treated the case as an attempt to introduce an entirely new form of action, in substance an action for defamation against a witness for giving evidence to the best of his belief in a Court of justice. Mr. Justice Willes said: “I apprehend the law to be, that, however harsh or hasty, or even untrue, may he the conduct of a person speaking on a privileged occasion, if he honestly and bona fide believes what he utters to he true, no action will lie.” Lord Chief Justice Jervis was of the opinion that the action was a novel one and without precedent to sustain it, and endorsed fully the law of privilege as laid down by Holroyd, J., in Hodgson vs. Scarlett. Now in Henderson vs. Broomhead, 4 Hurl. & Nor., 567, the Court decided that an action would not lie against a party who in a cause pending in Court makes affidavit in support of a summons taken out in such cause, which is scandalous, false and malicious, and though the person slandered was not a party to the cause. But there the scandalous matter was pertinent to the subject-matteo- before the Court.

Erle, J.,.said: “I do not assent to the proposition that the matters which form the subject of this charge ¹⁵⁷ were irrelevant. I can easily see liow they might be relevant.” Okomptox and Chowder, JJ., state broadly, it is true, that no action will lie for words spoken or written in the course of any judicial proceeding; but it must be borne in mind they were speaking in reference to defamatory words, which in the opinion of all the Judges were relevant to the then pending litigation. We come then to Dawkins vs. Lord Rokeby, L. R., 7 English and Irish App., 752, about which so much has been said. There the defendant, a military man, ivas sued for slanderous words spoken and written by him as a witness before a military Court.

The case ivas tried before Mr. Justice Blaokisckx, who held that inasmuch as the verbal and written statements were made by the defendant, being a military man, in the course of a military inquiry in relation to the conduct of the plaintiff being a military man, and with reference to the subject of that inquiry, the action could not be' maintained, although the plaintiff should-prove that the defendant had acted m,aid fide, and with actual malice, and with a knowledge that the statements so made by him were false-. In other words, the defamatory words having been spoken and written by the defendant as a witness before a military Court, and having reference to the subject-matter before that Court, they were privileged, and -whether they were spoken maliciously and falsely were questions, altogether immaterial. Upon appeal to the House of Lords, Lord Chancellor Catres said: “My Lords, I think it is of great importance that your Lordships should bear in mind these precise expressions which I have now read, because I feel sure that your Lordships would not desire your decision upoA the present occasion to go farther than the circumstances of this particular case •would warrant. Now, my Lords, adopting the expres ¹⁵⁸ sions of the learned Judges with regard to what 1 take to he settled law as to the protection of witnesses in judicial proceedings, I am certainly of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath, ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army.

It is not denied that the statements which 'he made, both those which were made viva voce and those which were made in writing, were relative to that inquiry.” Now in this case the House of Lords decided that a witness testifying before a military Court was entitled to the same privilege as a witness testifying in a judicial proceeding, and that no action would lie against the defendant because both what he said, and what was written by him had reference (“relative” is the term used) to the military discipline of the army which was the matter of inquiry before the military Court. The Lord Chancellor was careful to say, that he did not desire the decision to go farther than the circumstances of that particular case would warrant. The question was again very fully considered in Seaman vs. Netherclift, Law Rep., 2 Com. Pleas Div., 53, decided in 1876, one year after Dawkins vs. Lord Rokeby, in which all the Judges delivered opinions seriatim.

Cockburn, C. J., after stating in a general way that it was well settled that a witness was privileged to the extent of what he says in course of his examination, and that this privilege was not affected by the relevancy ,or irrelevancy of his testimony, qualifies 'the broad declaration thus made by him, by saying that, ¹⁵⁹ “ 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 lie 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. ’ ” In that case, however, he said the words spoken were relevant. Bbamwell, J. A.: “ The judgment of the Common Pleas affirmed two propositions—First, that what the defendant said, was said as a witness, and was relevant to the inquiry before the magistrate; and secondly, that that being so, the Lord'Chief Justice should have stopped the trial of the action by non-suiting the plaintiff.

As to the first proposition, I am by no means sure that the word relevant is the best word that could be used; the phrases used by the Lord Chief Baron, and the Lord Chancellor in Dawkins vs. Lord Rokeby, would seem preferable, having reference, or made with reference, to the inquiry. I. can scarcely think a witness would be protected for anything he might say in the witness box, wantonly and without reference to the inquiry. Mr. Justice Amphlett, considered there, was but one question open for the decision of the Court, and that was whether the answer was relevant, and being of the opinion that it was, the defendant was within the privilege.' ISTow, in all these cases, the slanderous words spoken were relevant, or had reference, to the matter of inquiry before the Court, and this being so, what was said by the several witnesses was, according to all the authorities, strictly within, the well recognized law of privilege. In all these cases the answers of the several witnesses had in the opinion of the ¹⁶⁰ Court reference to the subject-matter of inquiry, and in neither of these cases was it decided that the privilege even of a witness was an absolute privilege, and that he could take advantage of his position to utter something, in the language of CocKBUiüsr, O. J.,.“having-no reference to the cause or matter of inquiry in order to assail the character of another.” We should not stop to consider the dictum of Lord Mansfield in Rex vs. Skinner, decided in 1772, and only reported in Lofft, 55, but for the fact that-it is relied on by the Court in Munster vs. Lamb.

In that case a motion was made to quash an indictment against a magistrate for slanderous words spoken to a Grand Jury at a general session of the county. The indictment was quashed on the ground that it would be subversive of the Constitution to hold a judicial officer answerable either civilly or criminally for words spoken in office. Lord Mansfield is reported as saying in that case “ What Mr. Lucas, the defendant’s counsel has said is very just; neither party, counsel, nor Judge can be put to answer civilly or criminally for Avords spoken in office.” Noav in Brook vs. Montague, the Court after full argument had expressly decided that counsel was protected, provided the words spoken were relevant ox pertinent to the matter of inquiry, but that for words not pertinent he was liable. We can hardly suppose so eminent a Judge as Lord Mansfield meant in this off-hand way to overrule or even question the law of privilege as laid doivn in that case.

And when speaking of counsel we must conclude he meant that they were not liable civilly or criminally for words spoken, relevant to the subject-matter before the Court. And besides, in the subsequent case of Hodgson vs. Scarlett, in which the question of privilege of counsel was directly involved, and which was argued by distinguished counsel on both sides, this reported dictum ¹⁶¹ of Lord Mansfield is neither referred to by counsel, nor by either of the Judges who delivered opinions in that case. And all the Judges held, relying upon the decision in Brook vs. Montague as authority, that the defendant was protected because the words spoken by him were relevant and pertinent. And the same rule was again laid down in Mackay vs. Ford.

So, if Lord Mansfield was correctly reported, this dictum was not understood as qualifying’ in any manner the well settled law on the subject. Passing then from the English to the American decisions, we find that the highest Courts in this country have uniformly held that the privilege of counsel is limited to words spoken, which are pertinent, or which have relation to the matter of inquiry. In the early case of McMillan vs. Birch, 1 Binney, 178, Chief Justice Tilghman speaking of counsel and party said: “If any man should abuse this privilege, and under pretence of pleading his cause, wander designedly from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law.” In Hoar vs. Wood, 3 Metcalf, 193, Shaw, C. J., said: “Still, this privilege must be restrained by some limit; and we consider that limit tobe 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 person, which have no relation to the cause or subject-matter of the inquiry.” And in Hastings vs. Lusk, 22 Wend., 410, Chancellor Walworth says: “Upon a full consideration of all the authorities on the subject, I think that the privilege of counsel in advocating the causes of their clients, and of parties who are conducting their own. causes, belongs to the same class where they have confined themselves to ¹⁶² what was relevant and pertinent to the question before the Court.” We may also refer to the following cases in which this privilege has been held to be a limited and not an unqualified privilege: Ring vs. Wheeler, 7 Cowen, 725; Shelfer vs. Gooding, 2 Jones Law, N. C., 175; Jennings vs. Paine, 4 Wis., 372 ; Lea vs. White, 4 Sneed, Tenn., 111; Johnson vs. Brown, 13 W. Va., 71 ; Stackpole vs. Hennen, 6 Martin, La. (N. S.,) 481; McLaughlin vs. Cowley, 127 Mass., 319 ; Mower vs. Watson, 11 Vert., 536.

In view, then, of this unbroken line of decisions both in England and in this country/we cannot accept the absolute and unqualified privilege laid down in Munster vs. Lamb. It is in the teeth of the decisions in Brook vs. Montague, and Hodgson vs. Scarlett and Mackay vs. Ford, and is not sustained by Revis vs. Smith, Henderson vs. Broomhead, Dawkins vs. Lord Rokeby or Seaman vs. Netherclift We cannot agree with Brett, M. R., that in a suit against counsel for slander the only inquiry is whether the words were spoken in a judicial proceeding, and if so, the case must be stopped. We quite agree however with Bramwell, J. A., in Seaman vs. Netherclift, that “relevant ” and “pertinent ” are not the best words that could be used. These words have in a measure a technical meaning, and we all know the difficulty in determining in some cases what is relevant or pertinent.

With Lord Chancellor Cairns we prefer the words “having reference” or “made with reference,” or in the language of Shaw, C. J., “having relation to the cause or subject-matter.” And if counsel in the trial of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured. This qualification of his ¹⁶³ privilege in no manner impairs the freedom of discussion so necessary to the proper administration of the law, nor does it subject counsel to actions for slander except in cases in which upon reason and sound public policy he ouglit to he held answerable. We cannot agree that for the abuse of his privilege he is amenable only to the authority of the Court. Mere punishment hv the Court, is no recompense to one who has thus been maliciously and wantonly slandered.

We are of opinion therefore that the twelfth replication in this case, that the words spoken by the defendant, were not spoken in reference to the cause then on trial, and had no reference to any subject-matter involved in said action, or to any judicial inquiry which was going on, or being had in said action, is a good replication, and the demurrer thereto ought to have been overruled. But as the demurrer filed by the plaintiff mounts up to the first error in pleading, we are also of opinion, that this action cannot he maintained, because it appears upon the face of the declaration, that the alleged defamatory words, spoken by the defendant, had reference to the subject-matter involved in the cause then on trial. The words wore spoken by the defendant as counsel for Byers and wife in a suit against them by.the plaintiff in this case to recover money alleged to be due to him for professional services. The words set out in the declaration are as follows: “He, meaning the plaintiff, as attorney for Mrs. Byers, collected for her five thousand dollars of her money and refused to account to her, and kept it, and still has it, and refused to pay it over to her, and I am determined to rip up and expose the whole disgraceful transaction.” Whether the defendants in that ease could have offered evidence to prove these facts under the pleadings filed at that time we shall not stop-to consider.

Admit that ¹⁶⁴ such evidence would have heen inadmissible, under the then state of pleadings, yet the defendants' had the right to amend their pleas at any time before the jury retired to make up their verdict, and it is plain that under a plea of set-off such evidence would have been admissible. (Decided 13th June, 1888.) ■ But, be that as it may, the plaintiff in that case, who is the plaintiff in this, was claiming to recover money alleged to be due him by the defendants for professional services. And in such a case the words alleged to have been spoken by the defendant in that case in his capacity as counsel, to the effect that plaintiff had in his possession money which he had collected for and which belonged to the defendants, had reference to the subject-matter- of inquiry before the Court. And if they had reference or relation to the case on trial, then they are strictly within the rule of privilege and. whether they were true or'false,- or whether they were spoken maliciously or in good faith, are questions altogether immaterial,—being privileged no action will lie against the defendant.

This being so the evidence offered by the plaintiff for the purpose of proving them to be false, and that they were maliciously spoken was inadmissible, and there was no error in the ruling of the Court in this respect. And for the same reason, the defendant’s prayer, that there was no proof legally sufficient upon which the jury could find a verdict for the plaintiff was properly granted. And although the Court erred in sustaining the demurrer to the .plaintiff’s twelfth replication, yet inasmuch as the words set out in the declaration were spoken by the defendant as counsel, and had reference to the subject-matter then before the Court, this action cannot be maintained and the judgment must therefore be affirmed. Judgment affirmed. ¹⁶⁵ McSiierry, J., filed the following opinion: I am of opinion that the judgment in this case ought to be affirmed, but I base that conclusion upon the broad ground that the privilege pleaded by the appellee is an absolute and not a qualified.one.

If the question as to the character of the privilege be an open one in this State since the decision in Maurice vs. Worden, 54 Md., 233 , there is ample authority elsewhere to support