After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down. It remains to apply this law to the case before us. The declaration does not state definitely what the controversy or matter of inquiry in the equity case of Manning v. Voneiff actually was. Enough is stated, however, to warrant the inference that the female plaintiff was a party to that suit, or was preferring a claim in some capacity to the estate, or some part of it, of a Mr. Plitt, deceased, and that the witness, or her husband, was resisting that claim. The defendant was examined as a witness in that case, and so far as her testimony is set out in the declaration, it appears she was first asked if she remembered quite distinctly the day on which her husband told her he was copying certain deeds at Mr. Plitt's request? To this she replied that she saw her husband copying some papers; that he had a file of papers copying them, and she being inquisitive, asked him what he was writing, and he said he was copying some deeds Mr. Plitt asked him to copy. She was then asked, was that the same day on which the magistrate came to see Mr. Plitt? To this she replied, "No. I don't think so." She was then asked, "Well, how many days about intervened?" To this she replied, "Not knowing that a mistress or woman of Mr. Plitt's would step in to claim the lawful wife's property, I did not keep an account of the date that way; if I would have, I would have noticed the date and all those little particular incidents to save Mrs. Plitt from such heartache and trouble and cause of her death." This is the libel or slander complained of. Now, it is true that she could have answered the question by simply saying she "did not remember." It is also true that the imputation thus cast upon the plaintiff was grossly slanderous. She may have made it from malice, knowing at the same time that it was false, and from the averments of the declaration which the demurrer admits we must so take it. Still it was the excuse she chose to give as to not remembering the date about which she had been pressed by this and two previous questions. . . . It is quite impossible to say that she did not make it in her character as witness, or that it is at all like the examples put by the Judges in Seaman v. Netherclift as being entirely outside of the privilege. Judgment affirmed. ROBINSON and BRYAN, J., dissented. ROBINSON, J.-The absolute and unqualified privilege of a witness, as laid down in this case, is, in my opinion, a departure from the well settled law on the subject. I agree that a witness is absolutely protected as to everything said by him, having relation or reference to the subject-matter of inquiry before the Court. But if he takes advantage of his position as a witness to assail wantonly the character of another, and to utter maliciously what he knows to be false in regard to a matter that has no relation or reference to the matter of inquiry, he is, in my opinion, both on principle and authority, liable in an action of slander. I must, therefore, enter my dissent to the judgment in this case.1 1 [PROBLEMS: The plaintiff, a physician, presented a claim against the estate of a deceased person. The defendant, being interested in the estate, appeared before the commissioners to resist the allowance of the same, and there testified, among other things, in reference to the plaintiff: "This is n't the first time he has made up on account either. He made up one against me of between forty and fifty dollars for which he had n't made a visit, and I paid it and I can prove it." Was this privileged? (1895, Clemmons v. Danforth, 67 Vt. 617.) The Legislature was investigating the causes of the great coal strike of 1902. The defendant was mayor of Quincy, and was summoned, and told to tell his experience with the coal strike "in his own way." He then proceeded to tell of the Coal Dealers' Association rules as to cutting prices, and said, "This thing is blackmail, pure and simple," obviously referring to the blacklisting of dealers disobeying rules. Was this privileged? (1906, Sheppard v. Bryant, 191 Mass. 591.) The defendant was a witness to the bad repute of the present plaintiff for veracity. The plaintiff's attorney cross-examined him as to the grounds for his opinion. He replied: "He is a thief; he stole my paint-clothes, paint-brushes, and part of a harness." Was this privileged? (1898, Acre v. Starkweather, 118 Mich. 214.) Mary C. brought a bill of divorce against Joseph R. for adultery with Mary R., the now plaintiff, and the defendant and Mary C. conspired to suborn witnesses to testify falsely to the said J. C.'s adultery with the plaintiff, and the witnesses so testified. Were the defendants privileged? (1876, Rice v. Coolidge, 121 Mass. 393.) The defendant physician made a certificate of the sort required by law for a committal to the asylum, stating that he had examined the plaintiff and that she was in his opinion insane; the certificate was made with the honest belief of her insanity, but in fact without such an examination. Is the defendant excusable? (1899, Bacon v. Bacon, 76 Miss. 458, 24 So. 968.) The defendant physician made a certificate, after examination of the plaintiff, that the plaintiff was a dipsomaniac, and the plaintiff was committed to an asylum as a dipsomaniac. By statute, such a committal could only be made on oral testimony together with two certificates of physicians. The plaintiff alleges that the certificates were untrue and were made after a negligent examination. Is the defendant privileged? (1900, Niven v. Boland, 177 Mass. 11.) The defendant was summoned as witness before the grand jury, and in answer to questions made defamatory statements to the district attorney as well as to the grand jury. Were the statements to the district attorney privileged? (1906, Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066.) The defendant was testifying before the Board of Aldermen of a city, on an investigation as to fraud in the performance of the city's sewer-contracts. The Board had summoned by subpoena the defendant, who was a sewer-contractor. During his testimony, he said: “Go and see the B.'s yard; see the cobble stones and paving stones belonging to the city. No wonder they be rich. Why cast reflections on my name, when I do my work?" Was this privileged? (1894, Blakeslee v. Carroll, 64 Conn. 223.) The defendant was testifying as a witness on an issue of the sanity of a testator whom he had attended. The defendant was an allopathic doctor; the plaintiff a homeopathic doctor. He was asked, "Did any other physician attend him then?" and replied, "Not as I know of. I understand he had a quack, I would not call him a physician; I understood that Dr. White, as he is called, had been there?" Was this privileged if malicious? (1870, White v. Carroll, 42 N. Y. 161.) Topic 5. Counsel ... 1106. HENRY, Lord BROUGHAM. Essay on Erskine. (1811. Works, Edinburgh ed., 1872, vol. VII, p. 231). . . . The speech for Mr. Frost is the first of these almost miraculous exertions which, in that momentous crisis, Mr. Erskine made for the liberties of his country. . . . In the violence of that day, the exertions of Mr. Erskine failed of their accustomed effect; and Mr. Frost was found guilty. But the impression of his defence was not lost; and it deterred the government from risking its credit on such precarious speculations, until, in 1794, the charges of high treason were brought forward, the whole force of the Bar marshalled against the prisoners, and every effort used to beat down their undaunted defender. Then it was that his consummate talents shone in their full lustre. His indefatigable patience his eternal watchfulness — his unceasing labor of body and of mind the strength of an herculean constitution --- his untamable spirit — a subtlety which the merest pleader might envy a quickness of intellect which made up for the host he was opposed to:these were the great powers of the man; and the wonderful eloquence of his speeches is only to be spoken of as second to these. Amidst all the struggles of the constitution, in parliament, in the council, and in the field, there is no one man, certainly, to whose individual exertions it owes so much, as to this celebrated advocate; and if ever a single patriot saved his country from the horrors of a proscription, this man did this deed for us, in stemming the tide of State prosecutions. We have spoken most at large of his later productions; but the reader will naturally be anxious to look at the beginning of his career. We subjoin, therefore, an extract from his celebrated speech for Captain Baillie. This was the first he ever made, being pronounced by him immediately after he was called to the Bar; [and its delivery brought him instantly to the front of the Bar. Captain Baillie was prosecuted for a libel contained in a pamphlet printed by him to expose the abuses in the Greenwich Naval Pensioners' Home, of which he was superintendent. These abuses were due to the, corruption of certain political appointees of the Admiralty Department, of which Lord Sandwich was then the head.] The specimen we are about to give is selected principally with a view to show that the courage which marked Mr. Erskine's professional life was not acquired after the success which rendered it a safe and cheap virtue; but being naturally inherent in the man, was displayed at a moment when attended with the most formidable risks: "In this enumeration of delinquents, the Rev. Mr. looks around, as if he thought I had forgotten him. He is mistaken; - I well remembered him: but his infamy is worn threadbare. I shall therefore, forbear to taint the ear of the Court further with his name; — a name which would bring dishonor upon his country and its religion, if human nature were not happily compelled to bear the greater part of the disgrace, and to share it amongst mankind." "Such, my Lords, is the case. The defendant, ESSAYS: not a disappointed, mali Van Vechten Veeder, "Absolute Immunity in Defamation." (C. L. R., IX, 463, 600.) NOTES: "Privileged communications: intended witness: statements of, to attorney and client." (H. L. R., XIX, 219.)] -- cious informer, prying into official abuses, because without office himself, but himself a man in office; not troublesomely inquisitive into other men's departments, but conscientiously correcting his own; — doing it pursuant to the rules of law, and, what heightens the character, doing it at the risk of his office, from which the effrontery of power has already suspended him without proof of his guilt; - a conduct not only unjust and illiberal, but highly disrespectful to this Court, whose Judges sit in the double capacity of ministers of the law, and governors of this sacred and abused institution. Indeed, Lord Sandwich has, in my mind, acted such a part." (Here Lord Mansfield, observing the Counsel heated with his subject, and growing personal on the first Lord of the Admiralty, told him that Lord Sandwich was not before the Court.) "I know that he is not formally before the Court; but, for that very reason; I will BRING him before the Court. He has placed these men in the front of the battle, in hopes to escape under their shelter. But I will not join in battle with them. Their vices, though screwed up to the highest pitch of human depravity, are not of dignity enough to vindicate the combat with me. I will drag HIM to light, who is the dark mover behind this scene of iniquity. . . . But if, on the contrary, he continues to protect the prosecutors, in spite of the evidence of their guilt, which has excited the abhorrence of the numerous audience that crowd this Court, - IF HE KEEPS THIS INJURED MAN SUSPENDED, OR DARES TO TURN THAT SUSPENSION INTO A REMOVAL, I SHALL THEN NOT SCRUPLE TO DECLARE HIM AN ACCOMPLICE IN THEIR GUILT A SHAMELESS OPPRESSOR A DISGRACE TO HIS RANK, AND A TRAITOR TO HIS TRUST.' -- ACTION for words; for that the defendant at such a place in Surrey spake these words of the plaintiff: "He was arraigned and convicted of felony, &c." The defendant pleads, that the plaintiff at another time brought false imprisonment against J. S., one of the serjeants of London, who justified by warrant from Sir Nicholas Mosely, Mayor of London, for arresting him to find sureties for the good behavior; and they were thereupon at issue; and found against the plaintiff, who brought an attaint: and the defendant being consiliarius et peritus in lege, was retained to be of counsel with the petty jury; and in evidence at the trial in London spake those words in the declaration; and so justifies. Yelverton, and Coke, Attorney General, were of counsel for the defendant. The COURT resolved, that the justification was good: for a counsellorin-law retained hath a privilege to enforce any thing which is informed him by 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; but it is at the peril of him who informs it. But matter not pertinent to the issue, or the matter in question, he need not to 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. But if he give in evidence any thing not material to the issue, which is scandalous, he ought to aver it to be true, otherwise he is punishable; for it shall be intended as spoken maliciously and without cause; which is a good ground for an action. So if a counsellor object matter against a witness which is slanderous, if there be cause to discredit his testimony, and it be pertinent to the matter in question, it is justifiable what he delivers by information, although it be false. So here it is material evidence to prove him a person fit to be bound to his good behavior, and in maintenance of the first verdict; therefore his justification good. Wherefore, for these reasons, it was adjudged for the defendant. 1108. MUNSTER v. LAMB. (1883. L. R. 11 Q. B. D. 588.) BRETT, M. R. It was admitted that so long as an advocate acts bona fide and says what is relevant, owing to the privileged occasion, defamatory statements made by him do not amount to libel or slander, although they would have been actionable if they had not been made whilst he was discharging his duty as an advocate. But it was contended that an advocate cannot claim the benefit of the privilege unless he acts bona fide, that is, for the purpose of doing his duty as an advocate, and unless what he says is relevant. That is the question which we now have to determine. If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes judge, witness, and counsel it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider, whether the facts with which he is dealing are true or false. What he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness. To my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and there |