persons are "a gang who live by card-sharking" is justified by showing that on two different occasions they had cheated at cards.237 On the other hand, a clergyman was charged with saying that “the blood of Christ has nothing more to do with our salvation than the blood of a hog." The proof was that he had denied the divinity of Christ and the doctrine of the atonement, and had asserted the perfection of Christ as a man, and the absence of greater virtue in his blood than in that of any other creature. It was held that the charge was not justified.238 In the application of this reasonable principle there has not been entire consistency in the cases. Thus, it was properly held that to charge a woman with being a whore was not sustained by proof of her reputation as a thief. But it was also held that the charge was not sustained by proof of bad reputation for chastity.240 And courts have gone to great length in holding, for example, that the charge of a crime can be justified only by showing identity of the truth with the charge, both as to the object of the crime as well as to the wrong itself.241 As a matter of fact it would seem that courts have pushed to an extreme the proposition that "there can be no such thing as a half-way justification." 242 Hence, 239 237 Rex v. Labouchere (1880) 14 Cox, Cr. Cas. 419. A publication charging that a minister, of strong persuasion, and other means not so reputable, had induced a parishioner, who was believed to be of unsound mind, to turn over to him a large sum for the benefit of a certain college, and that there was general "indignation over this attempt to rob this woman of her property," it was held that the pleading of justification on the ground of truth need not state facts which would constitute an attempt to commit robbery. Walford v. Herald Printing & Pub. Co., 133 Ind. 372, 32 N. E. 929. 238 Skinner v. Grant, 12 Vt. 456. 239 Smith v. Buchecker, 4 Rawle, 295. And see Nelson v. Musgrave, 10 Mo. 648. 240 Sunman v. Brewin, 52 Ind. 140. 241 Charge of criminal intercourse with one person is not justified by proof of intercourse with another person. Buckner v. Spaulding, 127 Ind. 229, 26 N. E. 792; Watters v. Smoot, 11 Ired. 315. As to the place of intercourse, see Smithers v. Harrison, 1 Ld. Raym. 727; Sharpe v. Stephenson, 12 Ired. 348. The rule is the same as to stealing. Gardner v. Self, 15 Mo. 480. Charge of horse stealing is not justified by proof of hog stealing. Dillard v. Collins, 25 Grat. 343. So proof of a crime against nature with a cow is not justification of charge of such crime with a mare. Andrews v. Vanduzer, 11 Johns. 38; Downs v. Hawley, 112 Mass. 237; Shigley v. Snyder, 45 Ind. 541. 242 Fero v. Ruscoe, 4 N. Y. 162. it is a rule of pleading justification that "you should use the very words alleged to have been uttered." 243 "Truth should be specially pleaded." * General belief in truth of charge is no justification.245 In an action for libel, where the defendant has pleaded the truth of the publication in justification, and does not request an instruction that the jury may consider whether the justification was pleaded in good faith, and not wantonly, it is not error for the court to charge that they may consider the plea of justification as evidence of malice to enhance the damages.246 180. Privilege of a communication may be either(a) Absolute, when attaching to the position a person holds, or to the document in which it is contained, and such privilege cannot be avoided, even by proof of actual malice; or (b) Qualified (or conditional), when made with reference to public interest, or in discharge of a duty, and disattaches when malice is shown.247 243 Restell v. Steward, 1 Charl. Cases at Chambers, 89; Dennis v. Johnson, 47 Minn. 56, 49 N. W. 383; Sawyer v. Bennett, 66 Hun, 626, 20 N. Y. Supp. 835; As to proof, see Roberts v. Lamb, 93 Tenn. 343, 27 S. W. 668. 244 J'Anson v. Stuart, 1 Term R. 748. 245 Mason v. Mason, 4 N. H. 110. Underwood v. Parks, 2 Strange, 1200; Manning v. Clement, 7 Bing. 362–367; Van Ankin v. Westfall, 14 Johns. 233; Bisbey v. Shaw, 12 N. Y. 67; Sheahan v. Collins, 20 Ill. 326; Kay v. Fredrigal, 3 N. Y. 221; Updegrove v. Zummerman, 13 Pa. St. 619; Bodwell v. Swan, 3 Pick. 376. Where the publication charges plaintiff with a crime, the presumption of his innocence is conclusive if defendant does not plead the truth of the charge. Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 N. W. 358. It is no defense in a suit for libel that the party sued had reasonable grounds to believe that the charge made was true. Such facts, if shown, would not relieve the publisher from liability. Shattuc v. MeArthur, 25 Fed. 133. 246 Marx v. Press Pub. Co. (Sup.) 12 N. Y. Supp. 162, affirmed 134 N. Y. 561, 31 N. E. 918; Lowe v. Herald Co., 6 Utah, 175, 21 Pac. 991. 247 Shearw. Torts, 31. "There are two differences between qualified and absolute privilege." In the case of the latter, it is the occasion which is privileged. When once the nature of the occasion is shown, it follows as a necessary inference that every communication on that occasion is protected. But in the case of the former the defendant does not prove privilege until Absolute Privilege-Judicial. Upon principles of public policy 248 already considered,249 "neither party,250 witness,251 counsel,252 judge,253 or jury 254 can be put to lie has shown how the occasion was used. Secondly, even after a case of qualified privilege has been established, it may be met by the plaintiff proving in reply actual malice on part of defendant. Clerk & L. Torts, 450. And see Lynam v. Gowing, 6 Ir. C. L. 259. 248 Royal Aquarium, etc., Soc. v. Parkinson [1892] 1 Q. B. 431, 442, per Lord Esher, M. R. And see Fry, L. S., in Munster v. Lamb, 11 Q. B. Div., at pages 588 and 607. 249 Ante, p. 121, "Exemption of Judicial Officers from Liability in Tort." 250 Party,-see Hibbard, Spencer, Bartlett & Co. v. Ryan, 46 Ill. App. 313; Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73; Youree v. Hamilton, 45 La. Ann. 1191, 14 South. 77; Lilley v. Roney, 61 L. J. Q. B. 727. But see Jones v. Forehand, 89 Ga. 520, 16 S. E. 262; Allen v. Crofoot, 2 Wend. 515; Bartlett v. Christhilf, 69 Md. 219; Lee v. White, 4 Sneed (Tenn.) 111; Badgley v. Hedges, 2 N. J. Law, 217. But an agent of a corporation, which is a party to the suit, is not within the privilege. Nissen v. Cramer, 104 N. C. 574, 10 S. E. 676. 251 Seaman v. Netherclift, 2 C. P. Div. 53 (here an expert witness, when asked about a previous case in which he had given professional evidence, added, gratuitously, "though the jury decided the will was genuine, I believe it was a forgery"). Padmore v. Lawrence, 11 Adol. & E. 380; Kennedy v. Hilliard, 10 1r. C. L. 195; Wright v. Lothrop, 149 Mass. 385, 21 N. E. 963, collecting cases at page 390, 149 Mass., and page 963, 21 N. E.; Zuckerman v. Sonnenschein, 62 Ill. 115 (translating defamatory words for an attorney). And see Terry v. Fellows, 21 La. Ann. 375; McLaughlin v. Charles, 60 Hun, 239, 14 N. Y. Supp. 608; Hunckel v. Voneiff, 69 Md. 179, 14 Atl. 500; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721; Hutchinson v. Lewis, 75 Ind. 55; Liles v. Gaster, 42 Ohio St. 631; Cooper v. Phipps, 24 Or. 357, 33 Pac. 985; Baldwin v. Hutchinson, 8 Ind. App. 454, 35 N. E. 711. 252 Counsel, Munster v. Lamb, 11 Q. B. Div. 588; Hodgson v. Scarlett, I Barn. & Ald. 244 (inter alia, "this is one of the most profligate things I ever knew done by a professional man. Mr. Hodgson is a fraudulent and wicked attorney"); Hollis v. Meux, 69 Cal. 625, 11 Pac. 248; McLaughlin v. Cowley, 127 Mass. 316; Id., 131 Mass. 70. And see Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505; Oliver v. Pate, 43 Ind. 132 mal. pros.); Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12. As to limitation as to relevancy, see Marsh v. Ellsworth, 50 N. Y. 309; Hoar v. Wood, 3 Metc. 193. 253 Judge, Scott v. Stansfield, L. R. 3 Exch. 220. "Otherwise no man but 254 Juror, Rex v. Skinner [1772] Lofft, 55; grand juror, Little v. Pomeroy, 7 Ir. C. L. 50; Dunham v. Powers, 42 Vt. 1; answer civilly or criminally for words spoken in office." 255 The privilege extends to courts of all kinds,256 except where the matter is coram non judice.257 It includes all pleadings, 258 affidavits,259 and other legal papers 260 involved in judicial proceedings, as well as all communications between members of the bar and their clients. The a beggar or a fool would be a judge." Lord Robertson, in Miller v. Hope, 2 Shaw, App. Cas. 134. And, generally, see Yates v. Lansing, 5 Johns. 282; Cooke v. Bangs, 31 Fed. 640; Lange v. Benedict, 73 N. Y. 12; Johnston v. Moorman, 80 Va. 131; Vaughn v. Congdon, 56 Vt. 111; Randall v. Brigham, 7 Wall. 535. As to distinction between classes of judges, ante, c. 122. Aylesworth v. St. John, 25 Hun, 156 (justice of peace); Evarts v. Kiehl, 102 N. Y. 296, 6 N. E. 592; Floyd v. Barker [1617] 12 Rep. 24 (judge of superior court); Houlden v. Smith, 19 L. J. Q. B. 70 (judge of inferior court); Royal Aquarium & S. & W. Garden Soc. v. Parkinson [1892] 1 Q. B. 431. 255 Per Lord Mansfield, in Rex v. Skinner, Lofft, 56. And see Kidder v. Parkhurst, 3 Allen, 393; Munster v. Lamb, 23 Am. Law Reg. 12; Kelly, C. B., in Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255, 263; Beardsley, J., in Gilbert v. People, 1 Denio, 41-43; Gray, C. J., in Hoar v. Wood, 3 Metc. 193; Henderson v. Broomhead, 4 Hurl. & N. 569; Kendillon v. Maltby, 2 Moody & R. 438; Moore v. Ames, 2 Caines, 170; 1 Hawk. P. C. c. 73, § 8; Lake v. King, 1 Saund. 131; 6 Bac. Abr. 348. 256 Dawkins v. Prince, 1 Q. B. Div. 499 (military courts); Dawkins v. Rokeby, 23 W. R. 93 (military courts); Scott v. Stansfield, L. R. 3 Exch. 220 (county courts); Thomas v. Churton, 2 Best & S. 475 (coroners); Ryalls v. Leader, L. R. 1 Exch. 296 (bankruptcy registrar); Royal, etc., Soc. v. Parkinson [1892] 1 Q. B. 431 (London courts); Goffin v. Donnelly, 6 Q. B. Div. 307 (to effect that English houses of parliament are for certain purposes courts of judicature); Kane v. Mulvany, 2 Ir. C. L. [1868] 402. And see Rector v. Smith, 11 Iowa, 302 (grand juror). 257 Ante, p. 123; Paris v. Levy, 9 C. B. (N. S.) 342; Lewis v. Levy, El., Bl. & El. 537, 555. 258 Ruolis v. Backer, 6 Heisk. 395 (petition); Runge v. Franklin, 72 Tex. 585, 10 S. W. 721; Gardmal v. McWilliams, 43 La. Ann. 454, 9 South. 106 (petition); Weil v. Israel, 42 La. Ann. 955, 8 South. 826 (answer); and, generally, see Wilson v. Sullivan, 81 Ga. 238, 7 S. E. 274; Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518. 259 Lilley V. Roney [1892] 61 L. J. Q. B. 727; Murphy v. Nelson, 94 Mich. 554, 54 N. W. 282. 260 Revis v. Smith, 18 C. B. 126; Wyatt v. Buell, 47 Cal. 624; Hawk v. Evans, 76 Iowa, 593, 598, 41 N. W. 368; Henderson v. Broomhead, 4 Hurl. & N. 569. But cf. Hart v. Baxter, 47 Mich. 198, 10 N. W. 198; Bank v. Strong, 1 App. Cas. 307. Generally, accusations in the course of judicial proceedings are privileged, if made to the proper tribunal, though other privilege avails, although the words written or spoken were written or spoken without any justification or excuse, and from personal ill-will and anger against the person defamed.261 "No one is permitted to allege that what was rightly done in a judicial proceeding was done with malice." 262 "This privilege, however, is not a license which protects every slanderous publication or statement made in course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation; or, at least, it does not protect slanderous publication, clearly irrelevant and impertinent, voluntarily made, and which the party making it could not reasonably have supposed to be relevant." 263 So, while a witness may even volunteer a statement with impunity,2 264 this is not true of what he may have said after leaving, or before entering, the box, nor, it would appear, of malicious and irrelevant interjections of defamatory matter while testifying.265 On this principle, a judge wise libelous. Pedley v. Morris, 61 L. J. Q. B. 21; Lilley v. Roney, 61 L. J. Q. B. 727. 261 Per Lopes, J., in Royal Aquarium & S. & W. Garden Soc. v. Parkinson [1892] 1 Q. B. 431-451. 262 Hollis v. Meux, 69 Cal. 625, 11 Pac. 248; Warner v. Paine, 2 Sandf. 195, 201; Suydam v. Moffat, 1 Sandf. 458-462; Garr v. Selden, 4 N. Y. 91-94. See, however, Parker, J., in Hill v. Miles, 9 N. H. 14. 263 Andrews, J., in Moore v. Manufacturers' Nat. Bank, 123 N. Y. 420-423, 25 N. E. 1048, citing Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Gilbert v. People, 1 Denio, 41; Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73; Rice v. Coolidge, 121 Mass. 393; McLaughlin v. Cowley, 127 Mass. 316; Thorn v. Blanchard, 5 Johns. 508; Grover, J., in Marsh v. Ellsworth, 50 N. Y. 309–313. And see White v. Carroll, 42 N. Y. 161; Hollis v. Meux, 69 Cal. 625, 11 Pac. 248; Larkin v. Noonan, 19 Wis. 93; Calkins v. Summer, 13 Wis. 215; Shadden v. McElwee, 86 Tenn. 146, 5 S. W. 602; Jones v. Forehand, 89 Ga. 52, 16 S. E. 262; Barnes v. McCrate, 32 Me. 442; Hyde v. McCabe, 100 Mo. 412, 13 S. W. 875; Spaids v. Barrett, 57 Ill. 289; Smith v. Howard, 28 Iowa, 51; Stewart v. Hall, 83 Ky. 375; Hodgson v. Scarlett, 1 Barn. & Ald. 232; Moore v. Manufacturers' Nat. Bank, 51 Hun, 472, 4 N. Y. Supp. 378. 264 Seaman v. Netherclift, 1 C. P. Div. 540. 265 Trotman v. Dunn [1815] 4 Camp. 211. But see Coleridge, J., in Seaman v. Netherclift, 1 C. P. Div. 540, 541. Marsh v. Ellsworth, 50 N. Y. 309, and cases on page 310. This view Mr. Townshend combats with great force of reasoning and with a strong array of authorities. His contrary conclusion has been approved (Hunckel v. Voneiff, 69 Md. 179, 14 Atl. 500), and pro |