true or false, appear to warrant. "It would be impossible," observes Abbott, J., "that justice could be well administered if counsel were to be questioned for the too great strength of their expressions; but they ought not to avail themselves of their situation maliciously to utter words wholly unjustifiable." Where, therefore, an attorney was mixed up in the concoction of a pretended cause of action, and in suing for a sum of money when he knew that there was no legal claim and that the action must fail, and the counsel of the defendant said that the action was founded in the knavery of the attorney, that it was one of the most profligate things ever done by a professional man, and that the attorney was a fraudulent and wicked attorney, it was held that these observations and expressions of opinion were privileged. "Perhaps," observes Lord Ellenborough, "the words were too strong, and, in the exercise of a candor fit to be adopted, might have been spared. But still a counsel might, bonâ fide, think the expressions justifiable under the circumstances"(c).

1134 Defamatory statements by a party in open court conducting his own cause are also privileged and protected, if they are relevant to the subjectmatter of inquiry, or are spoken during the heat and excitement of a trial. "The party himself," observes Holroyd, J., "from his comparative ignorance of what is and what is not relevant, may be indulged in a greater latitude, and not be restricted within the same limits as a counsel, whose superior knowledge should be sufficient to restrain him within due bounds "(d).

(e) Hodgson v. Scarlett, 1 B. & Ald. 241.

(d) Hodgson v. Scarlett, 1 B. & Ald. 244; Roll. Abr. 87, pl. 4. Revis v. Smith, 18 C. B. 126 25 L. J., C. P. 195. Ring v. Wheeler, 7 Cow. 725. Hastings v. Lusk, 22 Wend. 410.

The rule as to the liability of a person for slander, on account of words spoken as a witness, is substantially the same as that which governs the liability of counsel for words uttered in the trial of a cause. If the words spoken were pertinent, and material to the matter in controversy, they are privileged, and the legal idea of malice is excluded. But if they were not pertinent and were not spoken bona fide, but for the purpose of defaming some person, they are not privileged and the witness is answerable. Smith v. Howard, 28 Iowa, 51. Marsh v. Ellsworth, 50 N. Y. 309.

As a general rule, a witness is not liable in an action of slander for words spoken in answer to questions propounded in a judicial investigation by either party. Terry v. Fellows, 21 La. An. 375.

And even though the witness be actuated by hatred and ill-will in testifying, yet, if the words uttered by him were pertinent and material to the subject-matter of inquiry, an action of slander will not lie. Calkins v. Sumner, 13 Wis. 193. The witness is not bound to determine the materiality of the evidence, and may answer, without liability, questions propounded and not objected to or ruled out by the court. Id.

Where an action of slander is brought against a witness for words spoken on the stand, whether the defendant was protected, under the circumstances, is a question of fact for the jury, and not a question of law for the court. If the jury believe from all the circumstances proved, from the questions put to the witness, from his manner of answering and from the answers themselves, that he testified in good faith, or in the belief that his answers were pertinent or relevant, then the words used by him are deemed privileged, and the law will

1135 Privileged comments and charges by judges and magistrates in the exercise of the duties of their office.-We have already seen that judges are not responsible for slanderous words spoken by them concerning private individuals, if the words are material and relevant to the cause or matter in issue before them. "Neither party, witoess, counsel, jury, or judge, can be put to answer civilly or criminally for words spoken in office"(e). But no judge of an inferior court or magistrate has any immunity for slander; and if he goes out of his way to calumniate an individual by uttering charges wholly irrelevant to the matter in issue before him, and not warranted by the occasion, he will be answerable in damages if malice be clearly made out, and there is a want of reasonable and probable cause for the slanderous observations (ante, p. 772). But it is clearly within the sphere of the duty of magistrates to make such comments upon the conduct and demeanor of witnesses and parties coming before them, and upon the character of persons whose conduct is involved in the inquiry before them as the occasion seems to them to warrant, and they are entitled to express their opinions concerning them with the utmost freedom, however erroneous those opinions may be(f), provided the proceedings before them are within their jurisdiction, and they have authority to inquire into and adjudicate upon them. An action, therefore, is not maintainable against a coroner for anything said by him whilst he is addressing a jury impaneled before him, however defamatory, false, or malicious in fact it may be(g).

1136 of the interpretation and application of the words used." In former times," observes Pratt, C.J., "words were construed in mitiori sensu, to avoid vexatious actions, which were then very frequent; but distinguenda sunt tempora, and we ought to expound words according to their general signification, to prevent scandals, which are at present too frequent "(h). "The rule," observes Lord Eller borough, "which at one time prevailed, that words are to be understood in mitiori sensu, has been long ago superseded; and words are now construed by courts as they always ought to have been, in the plain, popular sense in which

protect him; but if, on the contrary, the jury believe, from such evidence, that the witness, in using the words spoken, was actuated by malice, and used the words for the mere purpose of defaming the plaintiff, then the law will not protect him. White v. Carroll, 42 N. Y. 161. Words uttered by a juror in the deliberations of the jury, after they have retired to consider a verdict, are absolutely privileged, whether they are pertinent to the questions arising for decision or not. Dunham v. Powers, 42 Vt. 1.

(e) Reg. v. Skinner, Lofft, 55.

(ƒ) Kendillon v. Maltby, 2 M. & Rob. 438. Allardice v. Robertson, 1 Dow. N. S. 514.
(g) Thomas v. Chirton, 31 Law J., Q. B. 139.

(h) Button v. Heyward, 8 Mod. 24.

the rest of the world naturally understands them "(i). The effect of the words used, and not the meaning of the party uttering them, is the test of their being actionable. "You must first ascertain the meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them "(k).

1137 Slander of title.-If lands or chattels are about to be sold by auction, and a man declares in the auction-room, or elsewhere, that the vendor's title is defective, that the lands are mortgaged, or that the chattels are stolen property, and so deters people from buying, or causes the property to be sold for a less price than it would otherwise have realized, this is a slander upon the title of the owner, and gives the latter a claim for compensation in damages, unless the slanderer can prove the truth of his statement(). "An action for slander of title," observes Tindal, C.J., "is not properly an action for words spoken, or for a libel written and published, but an action on the case for special damage, sustained by reason of the speaking or publication of the slander of the plaintiff's title. It is ranged under that division of actions in the Digests, and by other writers on the text law." The plaintiff, therefore, in order to sustain the action, must prove special damage, and there must be an express allegation on the face of the declaration of some particular damage resulting to the plaintiff from the slander. Where, therefore, a shareholder in a mining company complained of a paragraph in a newspaper, asserting that a bill had been filed in Chancery invalidating his title to his shares, whereby he was injured in his rights and his shares were depreciated in the market, and he was prevented from selling them, it was held that this was not such an allegation of special damage as the law required in such actions; and that the necessity for an allegation of special damage does not in anywise depend upon the medium through which the slander is disseminated; that is, whether it be through words, or writing, or print(m). "To support the action," observes Parke, B., "it ought to be shown that the false statement was made mala fide, and that the special damage ensues therefrom. If some portions of the statement are bona fide, the injured party cannot recover, unless

(i) Roberts v. Camden, 9 East, 96. Woolnoth v. Meadows, 5 East, 468. Duncan v. Brown, 15 B. Monr. (Ky.) 186. Demarest v. Haring, 6 Cow. 76. Ogden v. Riley, 2 Green, 186. Butterfield v. Buffum, 9 N. H. 156. M'Gowen v. Manifee, 7 Monr. 314. Truman v. Taylor, 4 Iowa, 424. Fallenstein v. Boothe, 13 Mo. 427.

. Byrely, 53 Penu. St. 418.

(k) Hankinson v. Bilby, 16 M. & W. 442. (4) Gutsole v. Mathers, 1 M. & W. 501. 14. Beach v. Ranney, 2 Hill, 314; 6 Hill, 524. (m) Malachy v. Soper, 3 Sc. 737-739.

Blickenstaff v. Perrin, 27 Ind. 527.

Lukehart

Jarnigan v. Fleming, 43 Miss. 710.
Wren v. Weild, infra. Kendall v. Stone, 5 N. Y.
Linden v. Graham, 1 Duer (N. Y.), 670.

he can distinctly trace the damage as resulting from that part which is mala fide(n).

To enable a party, moreover, to maintain an action for slander of title, there must be malice, either express or implied, and the words spoken must go to defeat the plaintiff's title. If the words are spoken by a stranger, who has no right or business to interfere, the law presumes malice; and if he cannot show the truth of his assertion he is responsible in damages; but if he is himself interested in the matter, and announces the defect of title bona fide, either for the purpose of protecting his own interest or preventing the commission of a fraud, the legal presumption of malice is rebutted(o), and the plaintiff must then show that there was no reasonable or probable ground for the statement. If the alleged slanderer of title is himself interested, or has fair and reasonable ground for believing himself to be interested, in the sale or disposition of the property, the title to which is alleged to be slandered, and has acted bona fide, though under the influence of prejudice or misconception, he is not responsible in damages unless it be shown that he must have known that there was not the slightest pretence for his interference. "The bona fides of the communication," observes Lord Ellenborough, "and not whether a man of rational understanding would have made it, is the question to be canvassed "(p).

In an action for slandering the plaintiff's title to a patent, therefore, it is not sufficient to show that the defendant wrote to persons in negotiation with the plaintiff for the purchase of patented articles from him, stating that such articles were an infringement of a patent of his, the defendant's, and that he should claim royalties from them, if the defendant really had an existing patent for somewhat similar articles, and no evidence of mala fides is given(2).

"Slander of title," observes Maule, J., "ordinarily means a statement of something tending to cut down the extent of title, which is injurious only if it is false. It is essential to give a cause of action that the statement should be false, and therefore its falsehood is given in evidence under not guilty, since the new rules. It is essential also that it should be malicious; not, as Lord Ellenborough observes, malicious in the worst sense, but with intent to injure the plaintiff. If the statement be true-if there really be the infirmity of title that is

(n) Brook v. Rawl, 4 Exch. 524.

(0) Hargrave v. Le Breton, 4 Burr. 2423. Bailey v. Dean, 5 Barb. (N. Y.) 297. Smith v. Spooner, 3 Taunt. 253. See Steward v. Young, L. R., 5 C. P. 122.

(p) Pitt v. Donovan, 1 M. & S. 618.

(q) Wren v. Weild, L. R., 4 Q. B. 730. As to slander of title of personal property, see Like v. McKinstry, 3 Abb. (N. Y.) App. Decis. 62.

suggested, no action will lie, however malicious the defendant's intention might be. The jury may infer malice from the absence of probable cause, but they are not bound to do so. The want of probable cause does not necessarily lead to an inference of malice, neither does the existence of probable cause afford any answer to the action "(~).

SECTION III.

OF ACTIONS FOR LIBEL AND SLANDER(s).

1138 Consolidation of actions for the same libel.-Where seven different actions were brought against the same defendant, for seven different publications of the same libel to different persons, which might all have been comprised in one action, the court stayed the proceedings in all of them, except one, until that one had been tried (t). 1139 Parties to be made plaintiffs.-The party to be made plaintiff in an action for libel or slander, is the person to whom the injury immediately accrues, and not the party indirectly or remotely affected by the libel. An action of slander does not lie by two jointly against a defendant, when the tort which one received by the words spoken was not the tort which the other received; but they ought to sever in their actions, as in the case of false imprisonment(u). If, however, defamatory words be spoken of two partners in trade respecting them in their trade, they may maintain a joint action for the slander, averring special damage(r).

1140 Parties to be made defendants.-Every publisher and disseminator of written slander is liable to an action for damages, as well as the original inventor, author, or utterer of the calumny. The person who repeats it may, as we have seen, give greater weight to the scandal, and may be actuated by greater malice than the original utterer, and he cannot discharge himself from responsibility by giving up the name of the author or first utterer of the slander. The person slandered

(r) Pater v. Baker, 3 C. B. 868. See Kendall v. Stone, 2 Sandf. 269.

(s) See 30 and 31 Vict. c. 142, s. 10, ante, p. 675.

(t) Jones v. Prichard, 6 D. & L. 530; 18 Law J., Q. B. 104.

(u) Dyer, 19a; Burrough, J., Barratt v. Collins, 10 Moore, 451.

(z) Le Fanu v. Malcolmson, 1 H. L. C. 637. Cook v. Batchellor, 3 B. & P. 150; ante, p. 717-26; post, ch. 21. Taylor v. Church, 8 N. Y. 452.