Jennings v. Paine
4 Wis. 358
Wis.
1856
Check Treatment

By Cue Court,

Whiton, C. J.

We have no doubt that the non-suit in this case was rightly ordered.

The testimony of the plaintiff at the trial clearly established the following facts:

1st. That the alleged slanderous words were spoken by the defendant as an attorney at law, while he was defending his' client before a commissioner of the United States, while the client was being examined before the commissioner on a criminal charge.

2d. That the plaintiff was a witness before the commissioner, had given evidence which was important, and which tended to prove the crime of which the client Was accused.

Under these circumstances, were we to hold that the attorney could be held answerable in damages for charging the witness with perjury in regard to the testimony which he delivered, we should at once take away from the legal profession a protection absolutely essential to the faithful discharge of their duty to those who employ them.

A counselor who is defending his client when his property, *361liberty or life may depend upon the fact whether the court or jury believe the witness, should not be obliged to comment upon his testimony, with the prospect of an action of slander before him, if a jury should believe that the charge of perjury, which he felt it his duty to make against the witness, was not warranted by the character of the witness or the ciroumstances of the case. The authorities sustain this view of the matter. The doctrine as settled by the authorities is well stated by Shaw, Chief Justice, in the case of Hoar vs. Wood (3 Met. R. 193), as follows: “ We take the rule to be well settled by the authorities, that words spoken, in the course of judicial proceedings, though they 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. 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 person, which have no relation to the cause or subject matter of inquiry.” See also Hodgson vs. Scarlett, 1 Barn & Ald. 232; Ring vs. Wheeler, 7 Cow. R. 725; Hastings vs. Lusk, 22 Wend. R. 410; Bradley vs. Heath, 12 Pick. R. 163.

We can hardly conceive of a case where a witness has given important testimony against a party to a suit, where an accusation of perjury against the witness, would “have no relation to the cause or subject matter of inquiry.” Such an accusation would of course be often improper, and would operate against the party making it, but it cannot be said’that because the words were untrue, the party using them shall be- liable in damages to the injured party.

Judgment, affirmed.