ther shown that the defendant either knew or had reason to believe it was untrue at the time of the speaking of the words complained of. Kine v. Sewell, 1 Horn & Hurl. 83; 3 Mees. & Wels. 297, s. c. Proving that the defendant knew the charge to be false would unquestionably be evidence of express malice, and would destroy the defence in this class of cases.

Smith v.

It fol

As the plaintiff has a right to prove express malice in such cases, to sustain his action, notwithstanding the privilege, it follows, of course, that if the defendant attempt to set up his privilege as a defence by a special plea, he must not only plead the fact which rendered it a privileged communication, but he must deny the allegation in the declaration, that the words were maliciously spoken, to enable the plaintiff to go to the jury upon the question of actual malice, if he thinks proper to do so. Thomas, 1 Hodges' R. 353; 2 Bing. R. N. s. 372, s. c. lows, of course, upon a motion in arrest of judgment, if the charge of malice was denied in the plea and issue taken thereon, or if the general issue only was pleaded, so that the plaintiff would be bound to prove express malice to entitle him to a verdict in this class of cases, the court must presume it was proved upon the trial; although it should appear from the declaration or other pleadings that it was prima facie a privileged communication.

The second class of privileges embraces words spoken by members of Parliament or of Congress or of the State legislature, in the discharge of their official duties in the House, for which no action of slander will lie, however false and malicious may be the charge against the private reputation of an individual. To this class, also, belong complaints made to grand juries and magistrates, charging persons with crimes, for which no action of slander will lie, although express malice as well as the absolute falsity of the charge can be established by proof. But the law has provided a different remedy in cases of that kind, where, in addition to what has before been stated, it can be proved that the party who made the complaint had no probable cause for believing that the charge was true. Upon a full consideration of all the authorities on the subject, I think that the privilege of counsel in advocating the causes of their clients, and of parties who are conducting their own causes, belongs to the same class where they have confined themselves to what was relevant and

pertinent to the question before the court, and that the motives. with which they have spoken what was relevant and pertinent to the cause they were advocating cannot be questioned in an action of slander. Thus far it appears to be necessary to extend the privilege for the protection of the rights of the parties; as those rights might sometimes be jeoparded if counsel were restrained from commenting freely upon the characters of witnesses, and the conduct of parties, when such comments were relevant, for fear of being harassed with slander suits, and attempts to prove they were actuated by malicious motives in the discharge of their duty. Such I understand also to be the conclusion at which the Court of King's Bench arrived in the case of the present Lord Chief Baron of the Court of Exchequer. Hodgson v. Scarlett, 1 Barn. & Ald. 232; Holt's N. P. 621. Although Mr. Holt has attempted to give a statement of what occurred in banc, as well as a report of the case at nisi prius, to understand the decision correctly it is necessary to examine the case in Barnewall & Alderson, not only as to the final opinion of the judges, but also as to what occurred in the course of the argument. There was no question as to the fact that the plaintiff was nonsuited upon the opening, by Baron Wood, who held the assizes, without permitting him to go to the jury. He, therefore, had no opportunity to prove express malice, or to have it inferred from the manner in which the charge was made. His counsel upon the argument insisted that the learned judge had stopped the cause too soon, without hearing the evidence. To this it was answered, that Baron Wood had reported that the counsel at the assizes admitted that the alleged slanderous words were used by the defendant as observations in a cause, and were pertinent to the matter in issue. But as there appeared to have been a misapprehension on this point, the court heard a statement of the proceedings in the original suit from the notes of Mr. Justice Bailey, who tried the cause. The plaintiff's counsel still contended there was a question which ought to have been left to the jury, as they were to say whether there was not malice to be inferred from the facts. Upon which Lord Ellenborough immediately inquired if the words were relevant, whether they were not within the protection of law? And it was in answer to this part of the argument that, in delivering his final decision in the cause, he said, although he admitted it might have been

too much for the counsel to say that the attorney was wicked and fraudulent, "It appears to me that the words spoken were uttered in the original cause, and were relevant and pertinent to it, and consequently that this action is not maintainable."

I do not understand from this, however, that every thing that in any state of facts would be relevant and pertinent to the matter in question before the court, comes within this rule of protection, where those facts which would have rendered it relevant and pertinent do not exist. Thus, if counsel, in the argument of his client's cause, should avail himself of that opportunity to say of a party, or of a witness, against whom there was nothing in the evidence to justify a suspicion of the kind, that he was a thief or a murderer, it might be a proper case for a jury to say whether the counsel was not actuated by malice, and improperly availed himself of his situation as counsel to defame the party or witness. Such appears to have been the opinion of the judges in the case of Hodgson v. Scarlett, and such also must have been the opinion of the Supreme Court of this State in the case of Ring v. Wheeler, 7 Cowen, 725; for the language of the defendant as stated in any of the seven first counts of the declaration in that case might have been relevant and pertinent, and the words charged in the fourth and sixth counts probably were relevant to the matter before the arbitrators, if the counsel was opening his defence, and merely stating what he expected to prove, according to the case of Moulton or Boulton v. Clapham, 1 Rolle's Abr. 87, which was so much relied upon by the counsel for the plaintiffs in error upon the argument of this cause. Upon the authority of that case, perhaps, they should have been considered as relevant and pertinent, even after verdict.

I do not, however, consider the case of Moulton v. Clapham as an authority for holding that every thing which may be said to the court or jury, by a party or his counsel, in the progress of a cause, as absolutely protected, although it was not relevant or pertinent to the matter in question, so as to preclude the party injured thereby from showing to a jury that the language was used maliciously, and for the mere purpose of defaming him. Many of these old cases are very imperfectly reported, and are therefore apt to mislead us, unless they are examined with care. This case, although it is to be found in D'Anvers, Sir William Jones, March, and in Rolle's Abridgment, is not stated by either

two of them in precisely the same way. As reported by Sir William Jones, it would lead us to the conclusion that the court meant to decide that any thing said in court by a party in disaffirmance of what was sworn against him was absolutely protected, although found by the jury to have been said maliciously; but by referring to Rolle, it will be seen that the language used by the defendant was addressed to the court, and was a mere statement that the affidavit was untrue, and that he would prove to them by forty witnesses that it was so; and therefore it was holden that the action was not maintainable, as it appeared from the plaintiff's declaration that the answer as made by the defendant to the affidavit was spoken merely in defence of himself, and in a legal and judicial way, "inasmuch as he said he would prove it by forty witnesses." Neither is the dictum of Cromwell's Chief Justice of the upper bench (Style's R. 462) to be taken as broadly as stated by the reporter, without knowing the state of facts in reference to which the dictum was applied. I presume he must have used this language in reference to words spoken by counsel in opening the defence of his client's cause to the jury, stating what he should prove. For he immediately adds, "It is his duty to speak for his client, and it shall be intended to be spoken according to his client's instructions." But surely no one can for a moment suppose the learned Chief Justice intended to say that it was the duty of counsel to say any thing that was not relevant to the matter in question; or to go beyond the case for the purpose of maligning a witness or the adverse party, although he might have been instructed to do so by his client. As I understand the case of Brook v. Montague, Cro. Jac. 90, the plea must have alleged that the words were spoken by the counsel in relation to the evidence which was to be given in favor of the jury against Brook, who had attainted them. He probably was instructed by his client that Brook had been convicted of felony; and if so, he was probably incapable of proceeding in the attaint against the jury, as the law then stood. Coke Litt. 130 a; Sleght v. Kane, 2 Johns. Cas. 236. The language of the reporter is, that the counsel spoke the words in evidence. This certainly could not be so, as there was no pretence that the counsel was a witness on the trial. I have no doubt, therefore, that the language of the plea was that the counsel, in reference to the matters to be given in evidence, spoke

the words mentioned in the plaintiff's declaration, &c., and that by a slip of the reporter's pen, or otherwise, a part of the sentence is left out in the printed report. The case of Badgley v. Hedges, 1 Penning. R. 233, is like that of Moulton v. Clapham; for it is evident the defendant spoke in reference to the contradictory evidence which he intended to give in the cause, or which he had already given. If so, what he said was relevant, although perhaps not said at the right time. I am satisfied, therefore, that there is no law, either ancient or modern, which affords complete protection to parties or counsel, so as to bring the language used by them in the course of judicial proceedings within the second class of privileged communications which I have stated, except where the words complained of as slanderous were relevant or pertinent to the question to be determined by the court or jury.

There may be cases which properly belong to the first class of privileged communications, arising in the course of judicial proceedings. Parties, and even counsel sometimes, misjudge as to what is relevant and pertinent to the question before the court, and especially parties who are not much acquainted with judicial proceedings; and it may be very proper in such cases to leave it as a matter of fact for the jury to determine, whether the words were spoken in good faith, under a belief that they were relevant or proper, or whether the party using them was actuated by malice and intended to slander the plaintiff. The case of Allen v. Crofoot, 2 Wendell, 516, appears to be a case of this kind, for it is evident that words spoken were not relevant in the judicial proceeding, or pertinent to any question then before the court. But as circumstances showed that the defendant either supposed he was bound to answer the question, or that it was relevant and pertinent to the proceedings, I think the court very properly decided that it should have been left to the jury to determine whether the defendant acted in good faith, supposing it was relevant and proper to answer the question put to him by the plaintiff, although he had not yet been sworn as a witness on the examination of the complaint which he had previously made on oath, or whether he was actuated by malice. In cases belonging to that class of privileged communications, malice in fact may be inferred from the language of the communication itself,