69 Md. 179 | Md. | 1888
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.
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
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
Such are the English decisions. As to authority on the same subject in this country, we have already- referred to what has been said by Mr. Townshend in his book on Slander and Libel, and we have the authority
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 vs. 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
Judgment, affirmed.
Rojbinsox and Bryax, J., dissented.
The absolute and unqualified privilege of a witness, as laid down in this ease, is, in my opinion, a departure from the well settled law on the subject. I agree that a witness is absolutely protected as everything said by him, having relation or reference to the subject-matter of inquiry before the Court. But 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.
(Filed 13th June, 1888.)
A motion for a re-argument of the foregoing case before a Full Bench, was filed on the 1st of August, 1888, in behalf of the appellants. The Court overruled th.e motion, and at the same time delivered the following opinion:
A motion for a re-argument has been made in this case, and counsel have asked that it be had before a Full Court. The case itself, with two others bearing upon the same general subject, was most elaborately argued in the first instance, was most carefully considered, and the opinion heretofore filed expresses the deliberate judgment of four of the six Judges who heard it. The Constitution provides that four of
Kennedy vs. Hilliard, 10 Irish C. L., 195, was a case where an unsuccessful attempt was made to sustain an action against a party for a libel contained in an affi
In fact, a careful study of the English cases will show, I think, that while the Courts have with great unanimity held that the privilege should be' absolute and unqualified in respect to witnesses and parties, there have been many expressions of opinion by- individual Judges, and even some decisions by the Courts, to the effect that there should be a qualification to the privilege of advocates. In regard to them the controversy all along seems to have been whether their privilege should be of the same charcter as that conceded, to witnesses and parties, and it was not settled until the decision of the Court of Appeal in Munster vs. Lamb, decided as recently as 1883, even if that case has settled it.
The great importance to the administration of justice that witnesses should testify with minds absolutely free from the apprehension of being annoyed by civil actions for any thing they may say as witnesses, has already been pointed out. They are commonly untrained in legal learning, and often timid and uneducated. They are brought into' Court by the mandate of the law, ánd compelled to testify, usually for the benefit of others. On the other hand lawyers practice their profession voluntarily and for their .own emolument. By their professional training they are taught, and it is their business to know, what is pertinent or relevant to the trial of a case. They are educated and intelligent men, and their position is a most honorable and important one. Their legitimate privileges are very great, and it seems to me, with great deference to the differing opinions of others, not unreasonable that
Motion overruled.
(Decided 17th January, 1889.)
Ante page 143.