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car in the street, and, pursuing him, inflicted the injury complained of. True, he had been insulted in the car; but he was not assaulted in the car. He was not forced to leave the car, or ejected from it. He voluntarily left when a place was made for him to sit down by several ladies leaving the car. No matter what his intention was as to resuming his place, and finishing his contemplated journey, it was not announced nor assented to. The contract was to carry him as long as he stayed in the car to the end of the route-not to let him ride and walk alternately as he chose. While the contract of carriage continues, the passenger must, to some extent, be subjected to the carrier's control. The liability for his safety, and even for his conduct to co-passengers, so requires. When he left the car, the carrier was certainly not liable for his conduct on the street, nor for the conduct of a stranger to him on the street. Why, then, should the appellant be answerable for the assault of its driver, who actually stopped his team, and left it in the street with the passengers unguarded, in order that he might pursue his victim, and knock him down? In doing this, he cannot be regarded as acting within the sphere of his duty or scope of his authority. He left, and stepped aside from both, in order to gratify his spleen; and upon the authorities already cited, we cannot doubt that it was error to hold the appellant responsible." The same was held in Gilliam v. Southern, etc., R. Co., 70 Ala. 268, where a conductor stopped his train near plaintiff's house, entered the premises, seized the plaintiff's minor son, and carried him away on the train by force. See note, 60 Am. Rep. 880.

The Supreme Court of the United States, in Steamboat Co. v. Brockett, 121 U. S. 637, decided unequivocally that the carrier of passengers must protect his passengers from the violence of the carrier's employees, as also from that of other passengers; but there is nothing in the decision in conflict with the doctrine, that to render it liable, the employee must be at the time acting in the employment of the railroad, and within the line of his duty; and the decision assumes that the party injured is a pas senger when injured, for that was the fact in the case. That case only decides that the carrier is liable for the act of his servant engaged in the act of executing the contract for the transportation of the passenger. To bring this case within the operation of the rule there laid down, and no doubt rightly, it should appear from the proof that the appellee was a passenger at the time, and that the driver was executing the contract for transportation. When the appellee entered their street car, it does not appear that he had a ticket to any particular point. Upon entering the car, according to the well-understood arrangement, the carrier was bound to take the passenger, for the stipulated fare, to any point within the termini of the road where he might desire to alight. Whenever the passenger did alight, that contract was at an end, unless his alighting was well understood by the carrier's agent to be rightful and temporary, and that he was to resume his seat. He says he alighted for a purpose, and intended to resume his place in the car, and continue his journey; but this purpose was not communicated to or assented to by the driver and conductor. After he had alighted, and walked a square, could he resume his place in the car without paying another fare, without the assent of the conductor? Would the conductor be justified in omitting to demand another fare? We think not. Had he remained in the car until the stables were reached and the horses were being changed, the carrier would have understood his journey was not completed; and while the horses were being changed he would still have been regarded as a passenger, and would have been entitled to protection as against the employees, if he then had gone into the office, to execute his declared purpose to report. Packet Co. v. True, 89 Ill. 608; Railroad Co. v. Riley, 39 Ind. 568, and State v. Ry. Co., 58 Me. 176, correctly lay the law down. Those cases only establish that while the car or boat may actually stop, the passenger need not confine himself to the boat, car or vehicle in order to preserve his relation and rights as a passenger. But that is not the case here. The appellee voluntarily alights a square or block away from where the car will stop to change horses, and takes his place with other pedestrians on the side-injury to plaintiff, that the city had knowledge of walk of the street. The carrier had a right to regard his contemplated trip as ended, and contract executed. He was no longer being carried as a passenger, but was walking on the street. Being discovered in this act, the driver, whose conduct was most outrageous, and deserved the dismissal from service which followed, stopped his horses, left his

In City of Topeka v. Sherwood, Kansas Supreme Court, July 7, 1888, it was held, that in an action against a city to recover damages for injuries received from a fall on a defective sidewalk, it is competent for the plaintiff to show that, while the walk was in the same condition, similar accidents had occurred at the same place. The court said: "A further objection is that the court below allowed proof of other accidents happening on this sidewalk to be offered. Evidence was introduced of four other persons falling on the sidewalk in front of the church, three of them before the accident, and one shortly after; not all of them at the exact place where this plank was loose, but all on this part of the sidewalk, which was built by the church from the plank taken from the bridge. We believe such testimony was admissible as tending to establish the condition of the sidewalk, and also, in the cases of those who fell before the date of the

its condition. One of the facts it was necessary to establish in this action was the condition of the sidewalk. Before the plaintiff could recover she must prove that it was unsafe to walk over. Of course, that could be proven in different ways, and by other evidence than proof of other accidents. It is conceded that this is not the most direct and posi

tive evidence of which the case is susceptible; but the simple fact that there were frequent accidents on this part of the sidewalk would tend to show that it was unsafe. When the question of the proper condition or safety of any thing constructed is to be determined, evidence tending to show that it served the purpose for which it was designed is always competent, and often the most satisfactory and conclusive in its character. On the other hand, evidence to show that frequent and repeated accidents resulted from its use would be testimony tending to show that it was not properly constructed. The walk had been tested by actual use, and this evidence tended to show that it was dan gerous and unsafe. It is objected that the testimony presented new issues, which the defendant had not expected, and could not be prepared to meet. In a limited sense, every item of evidence material to the main issue presents a new issue in this respect, at least it invites, by way of reply, a contradiction or an explanation. In no other way did the evidence make a new issue. It was important, as we have said, to show that the sidewalk was unsafe and dangerous, and upon that question the defendant was required to be prepared. District of Columbia v. Arms, 107 U. S. 519; Darling v. Westmoreland, 52 N. H. 401; S. C., 13 Am. Rep. 55; Augusta v. Hafers, 61 Ga. 48; S. C., 34 Am. Rep. 95; City of Delphi v. Lowery, 74 Ind. 520; S. C., 39 Am. Rep. 98; City of Chicago v. Powers, 42 Ill. 169; Quinlan v. Utica, 11 Hun, 217; 74 N. Y. 603; Burns v. Schenectady, 24 Hun, 10; Champlin v. Penn Yan, 34 id. 33; Kent v. Lincoln, 32 Vt. 591; House v. Metcalf, 27 Conn. 631; Railroad Co. v. Ashcraft, 48 Ala. 15; Smith v. Sherwood Tp., 62 Mich. —; 28 N. W. Rep. 806; Morrill City Neg. 204. See also Railroad Co. v. Hand, 7 Kan. 380; Railroad Co. v. Chase, 11 id. 47; Railroad Co. v. Stanford, 12 id. 354; Field v. Davis, 27 id. 401; Contra: Collins v. Inhabitants of Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 id. 342; Blair v. Pelham, 118 Mass. 420; Hudson v. Railroad Co., 59 Iowa, 581." See note to Field v. N. Y. Cent. R. Co., 32 N. Y. 339, Weed, Parsons & Co.'s ed.

H. Kyd Douglass, William Witzenbacker and William P. Maulsby, for appellant.

Charles B. Roberts, H. H. Keedy and J. Clarence Lane, for appellee.

law for slander. The defendant pleads in bar of the ROBINSON, J. This is a suit against an attorney at action that the alleged defamatory, words set out in the declaration were spoken by him in his capacity as counsel, in the trial of a cause in a court of justice. To this the plaintiff replied that the words thus spoken were not spoken in reference to said cause, and “had no reference to said action, or to any subject-matter involved in said action, or to any judicial inquiry which was going on, or being had in said action." To this replication the defendant demurred, and in sustaining the demurrer, the court decided, as matter of

law, that if the defamatory words were spoken by the defendant as counsel in the trial of a cause in a court of justice, the action could not be maintained, even though the plaintiff should prove that the words thus spoken were false, and were known to be false, by the defendant, and even though they were spoken maliciously, and even though they had no reference dicial inquiry involved in said action. In other words to said cause, or to any subject-matter, or to any ju the court decided that the privilege of counsel in the trial of a cause is an absolute and unqualified privilege, and although he is subject to the authority of punished for misbehavior or misconduct, he cannot the court for the abuse of this privilege, and may be be held liable in an action of slander brought by the person injured.

The question, which is thus presented for the first time for the decision of the court, is one of great importance, involving on the one haud the rights and charge of a professional duty, and on the other the privileges of counsel in the trial of causes in the disrights of the citizen whose character may have been maliciously and wantonly assailed. The case has been very fully and ably argued on both sides, and reference has been made to nearly all the decisions, both in England and in this country, on the subject. All agree that counsel are privileged and protected, to a certain extent at least, for defamatory words spoken in a judicial proceeding; and words thus spoken are not actionable which would in themselves be actionable if spoken elsewhere. He is obliged, in the discharge of a professional duty, to prosecute and defend the most important rights and interests, the life it may be, or the liberty or the property of his client, and it is absolutely essential to the administration of justice that he should be allowed the widest latitude in commenting on the character, the conduct and the motives of parties and witnesses and other persons diCOM-rectly or remotely connected with the subject-matter in litigation. And to subject him to actions of slander by every one who may consider himself aggrieved, and to the costs and expenses of a harassing litigation, would be to fetter and restrain him in that open and fearless discharge of duty which he owes to his client, and which the demands of justice require. Not that the law means to say that one, because he is counsel in the trial of a cause, has the right, abstractly considered, deliberately and maliciously to slander another, but it is the fear that if the rule were otherwise actions without number might be brought against counsel who had not spoken falsely and maliciously. It is better therefore to make the rule of law so large that counsel acting bona fide in the discharge of duty shall never be troubled, although by making it so large, others who have acted mala fide and maliciously are included. The question whether words spoken by counsel were spoken maliciously or in good faith, is and always will be an open question upon which opinion

LIBEL AND SLANDER-PRIVILEGED
MUNICATIONS-WORDS SPOKEN BY COUN-
SEL AT TRIAL.

MARYLAND SUPREME COURT, JUNE 13, 1888.

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The privilege of counsel in the trial of a cause is a qualified one, and slanderous words spoken by him, having no reference to the cause then on trial, nor to any subject-matter involved therein, nor to any judicial inquiry pending therein, are actionable.

Words spoken by defendant's counsel, on the trial of an action

by an attorney to recover for professional services, to the effect that the plaintiff, as attorney for the defendant, had collected and refused to pay over $5,000 of defendant's money, relate to the subject-matter of inquiry; and whether true or false, and whether spoken maliciously or in good faith, will not sustain an action for slander.

may differ, and counsel, however innocent, would be liable, if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege merely of counsel, but the privilege of clients, and the evil, if any, resulting from it, must be endured for the sake of the great good which is thereby secured. But this privilege is not an absolute and unqualified privilege, and cannot be extended beyond the reason and principles on which it is founded. The question then is, what is the extent and limit to this privilege? This can best be answered by a consideration of the cases in which it has been determined.

In the earliest of the leading cases on the subject (Brook v. Montague, Cro. Jac. 90, decided in 1605, and argued by Lord Coke and Yelverton), it was held that this privilege protected counsel, provided the slanderous words spoken were relevant or pertinent to the matter. "But matter," said Popham, J., "not pertinent to the issue or matter in question, he need not deliver, for he is to discern in his discretion what he is to deliver and what not, and although it be false, he is excusable being pertinent to the matter." Subsequently, in the noted case of Hodgson v. Scarlett (afterward Lord Abinger), 1 Barn. & Ald. 232, the rule laid down in Brook v. Montague was expressly recognized and approved. This case was elaborately argued, and was decided after full consideration, each of the judges delivering his own views. Lord Ellenborough, while admitting that the language used by the defendant was too strong, and too much to say as between man and man, yet held that the action could not be maintained because the words spoken were pertinent to the issue. Justice Bayley said: "The rule seems to be correctly laid down in Brook v. Montague that a counselor hath a privilege to enforce any thing which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false. No mischief will ensue in allowing the privilege to that extent." Mr. Justice Abbott: "The words were spoken in a course of judicial inquiry, and were relevant to the matter in issue. It would be impossible that justice could be well administered if counsel were to be questioned for the too great strength of their expressions." Mr. Justice Holroyd, after referring to Buckley v. Wood, 4 Coke, 14, and Cutler v. Dixon, id., says: "These cases show the privilege possessed by parties themselves; and from these authorities it appears that no action is maintainable against the party, nor consequently against counsel, who is in a similar situation, for words spoken in the course of justice, if they be fair comments upon the evidence, and be relevant to the matter in issue." Again, in Mackay v. Ford, 5 Hurl. & N. 790, Pollock, C. B., referring to the slanderous matter complained of, said: "The question is, was it relevant? I think it was, because it was pertinent to the question whether the agreement had been fully determined. The words were used by the defendant in the character of counsel in a court of justice, and being relevant to the matter in hand, the speaking of them was justifiable." Bramwell, J.: "The words spoken having been pertinent to the question; * * * the rule must be absolute to enter a nonsuit." Channell, B.: "The words in question were spoken in the course of a judicial proceeding in which they were not irrelevant." It thus appears that from the decision in Brook v. Montague, in 1605, to Mackay v. Ford, decided in 1860, a period of more than two hundred and fifty years, relevancy of the words spoken was considered essential to justify the privilege. And so the law was understood by all the most eminent commentators on the subject. Blackstone says: "A counsellor is not answerable for any matter spoken relative to the cause in hand.

If it be impertinent to the cause in hand he is then liable to an action from the party injured." In Folk. Starkie Sland. (4th Eng. ed.), § 352, and Add. Torts (ed. 1870), p. 934, note m, the privilege of counsel is limited expressly to words relative to the inquiry. We come now to Munster v. Lamb, 11 Q. B. Div. 588, decided in 1883, which is relied on in support of the ruling below. In that case it was held that no action will lie against counsel for slanderous words spoken with reference to and in the course of an inquiry before a judicial tribunal, although they were uttered maliciously, and without any justification, or even excuse, and from personal ill will toward the person slandered, arising out of a previously existing cause, and are irrelevant to every issue of fact contested before the court. Brett, master of the rolls, said: "For the purpose of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously, that is to say, not with the object of doing something useful toward the defense of his client. I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill will or anger toward the persecutor, arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered. Nevertheless, inasmuch as the words were uttered with reference to and in the course of the judicial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been. The rule is founded upon public policy. With regard to counsel the question of malice, bona fides, and relevancy cannot be raised. The only question is whether what is complained of has been said in the course of the administration of the law. If that be so, the case against counsel must be stopped at once. No action of any kind, no criminal prosecution, can be maintained against a defendant when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry." Fry, L. J., was of the same opinion. A judgment thus deliberately rendered by judges so eminent is entitled of course to the highest consideration; but with deference we must say that the absolute and unqualified privilege as thus laid down is not in our opinion supported by Revis v. Smith, Henderson v. Broomhead, Dawkins v. Rokeby, or Seaman v. Netherclift, the cases relied on by the court; nor can it be sustained by any sound principle of public policy. Now, in Revis v. Smith, 18 C. B. 125, the count in the declaration was not for libel, but for maliciously and without reasonable and probable cause making a false affidavit in a cause pending in chancery, containing injurious representations against the plaintiff as an auctioneer, by means of which the court declined to appoint him as auctioneer to sell certain real estate. Mr. Justice Cresswell rested his judgment on the ground that the action was without precedent, and that it would be highly inconsistent to hold a witness liable where he gave evidence relevant to the cause. Mr. Justice Crowder treated the case as an attempt to introduce an entirely new form of action, in substance an action for defamation against a witness for giving evidence to the best of his belief in a court of justice. Mr. Justice Willes said: "I apprehend the law to be, that however harsh or hasty, or even untrue may be the conduct of a person speaking on a privileged occasion, if he honestly and bona fide believes what he utters to be true, no action will lie." Lord Chief Justice Jervis was of the opinion that the action was a novel one, and without precedent to sustain it, and indorsed fully the law of privilege as laid down by Holroyd, J., in Hodgson v. Scarlett. Now, in Henderson v. Broomhead, 4 Hurl. & N. 567, the court decided that an ac

tion would not lie against a party, who in a cause pending in court, makes affidavit in support of a summons taken out in such cause, which is scandalous, false and malicious, and though the person slandered was not a party to the cause. But there the scandalous matter was pertinent to the subject-matter before the court. Erle, J., said: "I do not assent to the proposition that the matters which form the subject of this charge were irrelevant. I can easily see how they might be relevant." Crompton and Crowder, JJ., state broadly, it is true, that no action will lie for words spoken or written in the course of any judicial proceeding; but it must be borne in mind that they were speaking in reference to defamatory words which, in the opinion of all the judges, were relevant to the then pending litigation. We come then to Dawkins v. Rokeby, L. R., 7 H. L. 752, about which so much has been said. There the defendant, a military man, was sued for slanderous words spoken and written by him as a witness before a military court. The case was tried before Mr. Justice Blackburn, who held that inasmuch as the verbal and written statements were made by the defendant, being a military man, in the course of a military inquiry in relation to the conduct of the plaintiff, being a military man, and with reference to the subject of that inquiry, the action could not be maintained, although the plaintiff should prove that the defendant had acted mala fide and with actual malice, and with a knowledge that the statements so made by him were false. In other words, the defamatory words having been spoken and written by the defendant as a witness before a military court, and having reference to the subject-matter before that court, they were privileged, and whether they were spoken maliciously and falsely was a question altogether immaterial. Upon appeal to the House of Lords, Lord Chancellor Cairns said: "My lords, I think it of great importance that your lordships should bear in mind these precise expressions which I have now read, because I feel sure that your lordships would not desire your decision upon the present occasion to go farther than the circumstances of this particular case would warrant. Now, my lords, adopting the expressions of the learned judges with regard to what I take to be settled law as to the protection of witnesses in judicial proceedings, I am certainly of opinion that upon all principles, and certainly upon all considerations of Convenience and of public policy, the same protectiou which is extended to a witness in a judicial proceeding, who has been examined on oath, ought to be extended, and must be extended, to a military man, who is called before a court of inquiry of this kind for the purpose of testifying there upon a matter of military discipline in connection with the army. It is not denied that the statements which he made, both those which were made viva voce and those which were made in writing, were relative to that inquiry." Now in this case the House of Lords decided that a witness testifying before a military court was entitled to the same privilege as a witness testifying in a judicial proceeding, and that no action would lie against the defendant because both what he said and what was written by him had reference ("relative" is the term used) to the military discipline of the army, which was the matter of inquiry before the military court. The lord chancellor was careful to say that he did not desire the decision to go further than the circumstances of that particular case would warrant.

The question was again very fully considered in Seaman v. Netherclift, 2 C. P. Div. 53, decided in 1876, one year after Dawkins v. Rokeby, in which all the judges delivered opinions seriatim. Cockburn, C. J., after stating in a general way that it was well settled that a

witness was privileged to the extent of what he says in course of his examination, and that this privilege was not affected by the relevancy or irrelevancy of his testimony, qualifies the broad declaration thus made by him, saying that "if a man, when in the witness box, were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked, 'Were you at York on a certain day?' and he were to answer, 'Yes; and A. B. picked my pocket there;' it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege." In that case however he said the words spoken were relevant. Bramwell, J. A.: "The judgment of the Common Pleas affirmed two propositions: First, that what the defendant said was said as a witness, and was relevant to the inquiry before the magistrate; and secondly, that being so, the lord chief justice should have stopped the trial of the action by nonsuiting the plaintiff. As to the first proposition, I am by no means sure that the word 'relevant' is the best word that could be used. The phrases used by the lord chief baron and the lord chancellor in Dawkins v. Rokeby, would seem preferable, having reference, or made with reference, to the inquiry. I can scarcely think a witness would be protected for any thing he might say in the witness box, wantonly and without reference to the inquiry." Mr. Justice Amphlett considered there was but one question open for the decision of the court, and that was whether the answer was relevant, and being of opinion that it was, the defendant was within the privilege. Now in all these cases the slanderous words spoken were relevant or had reference to the matter of inquiry before the court, and this being so, what was said by the several witnesses was according to all the authorities strictly within the well-recognized law of privilege. In all these cases the auswers of the several witnesses had, in the opinion of the court, reference to the subject-matter of inquiry, and in neither of these cases was it decided that the privilege even of a witness was an absolute privilege, and that he could take advantage of his position to utter something, in the language of Cockburn, C. J., having no reference to the cause or matter of inquiry in order to assail the character of another.

We should not stop to consider the dictum of Lord Mansfield in Rex v. Skinner, decided in 1772, and only reported in Lofft, 55, but for the fact that it is relied on by the court in Munster v. Lamb. In that case a motion was made to quash an indictment against a magistrate for slanderous words spoken to a grand jury at a general session of the county. The indictment was quashed on the ground that it would be subversive of the Constitution to hold a judicial officer answerable, either civilly or criminally, for words spoken in office. Lord Mansfield is reported as saying in that case: "What Mr. Lucas, the defendant's counsel, has said is very just. Neither party, counsel nor judge, can be put to answer civilly or criminally for words spoken in office." Now, in Brook v. Montague, the court, after full argument, had expressly decided that counsel was protected, provided the words spoken were relevant or pertinent to the matter of inquiry, but that for words not pertinent he was liable. We can hardly suppose so eminent a judge as Lord Mansfield meant in this off-hand way to overrule or even question the law of privilege as laid down in that case; and when speaking of counsel we must conclude he meant that they were not liable civilly or criminally for words spoken relevant to the subject-matter before the court. And besides, in the subsequent case of Hodgson v. Scarlett, in which the question of privilege of counsel was directly involved, and which was argued by distinguished counsel on both sides, this re

ported dictum of Lord Mansfield is neither referred to of his privilege he is amenable only to the authority by counsel nor by either of the judges who delivered of the court. Mere punishment by the court is no opinions in that case. And all the judges held, rely-recompense to one who has thus been maliciously and

ing upon the decision in Brook v. Montague as authority, that the defendant was protected because the words spoken by him were relevant and pertinent; and the same rule was again laid down in Mackay v. Ford. So if Lord Mansfield was correctly reported, this dictum was not understood as qualifying in any manner the well-settled law on the subject.

wantonly slandered.

We are of opinion therefore that the twelfth replication in this case that the words spoken by the defendant were not spoken in reference to the cause then on trial, and had no reference to any subjectmatter involved in said action, or to any judicial inquiry which was going on or being had in said action, is a good replication, and the demurrer thereto ought to have been overruled. But as the demurrer filed by the plaintiff mounts up to the first error in pleading, we are also of opinion that this action cannot be maintained, because it appears upon the face of the declaration that the alleged defamatory words spoken by the defendant had reference to the subject-matter involved in the cause then on trial. The words were spoken by the defendant, as counsel for Byers and wife, in a suit against them by the plaintiff in this case to recover money alleged to be due to him for professional services. The words set out in the declaration are as follows: "He (meaning the plaintiff), as attorney for Mrs. Byers, collected for her five thousand dollars of her money, and refused to account to her, and kept it, and still has it, and refused to pay it over to her; and I am determined to rip up and expose the whole disgraceful transaction." Whether the defendants in that case could have offered evidence to prove these facts under the pleadings filed at that time we shall not stop to consider. Admit that such evidence would have been inadmissible, under the state of pleadings, yet the defendants had the right to amend their pleas at any time before the jury retired to make up their verdict, and it is plain that under a plea of set-off such evidence would have been admissi

Passing then from the English to the American decisions, we find that the highest courts in this country have uniformly held that the privilege of counsel is limited to words spoken which are pertinent or which have relation to the matter of inquiry. In the early case of McMillan v. Birch, 1 Bin. 178, Chief Justice Tilghman, speaking of counsel and party, said: "If any man should abuse this privilege, and under pretense of pleading his cause, wander designedly from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law." In Hoar v. Wood, 3 Metc. 193, Shaw, C. J., said: "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 the inquiry." And in Hastings v. Lusk, 22 Wend. 410, Chancellor Walworth says: "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." We may also refer to the following|ble. But be that as it may, the plaintiff in that case, cases, in which this privilege has been held to be a limited and not an unqualified privilege: Rong v. Wheeler, 7 Cow. 725; Shelfer v. Gooding, 2 Jones (N. C.) 175; Jennings v. Paine, 4 Wis. 372; Lea v. White, 4 Sneed, 111; Johnson v. Brown, 11 W. Va. 73; Stackpole v. Hennen, 6 Mart. (N. S.) 481; McLaughlin v. Cowley, 127 Mass. 319; Mower v. Watson, 11 Vt. 536. In view then of this unbroken line of decisions both in England and in this country, we cannot accept the absolute and unqualified privilege laid down in Munster v. Lamb. It is in the teeth of the decisions in Brook v. Montague and Hodgson v. Scarlett, and Mackay v. Ford, and is not sustained by Revis v. Smith, Henderson v. Broomhead, Dawkins v. Rokeby. or Seaman v. Netherclift. We cannot agree with Brett, M. R., that in a suit against counsel for slander the only inquiry is whether the words were spoken in a judicial proceeding, and if so, the case must be stopped. We quite agree however with Bramwell, J., | in Seaman v. Netherclift, that "relevant” and “pertinent" are not the best words that could be used. These words have in a measure a technical meaning, and we all know the difficulty in determining in some cases what is relevant or pertinent. With Lord Chancellor Cairns we prefer the words "having reference," or made with reference," or, in the language of Shaw, C. J., having relation to the cause or subjectmatter." And if counsel, in the trial of a cause, maliciously slanders a party or witness or any other person in regard to a matter that has no reference or relation or connection with the case before the court, he is and ought to be answerable in an action by the party injured. This qualification of his privilege in no manner impairs the freedom of discussion so necessary to the proper administration of law, nor does it subject counsel to actions for slander except in cases in which, upon reason and sound public policy, he ought to be held answerable. We cannot agree that for the abuse

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who is the plaintiff in this, was claiming to recover money alleged to be due him by the defendants for professional services, and in such a case the words alleged to have been spoken by the defendant in that case in his capacity as counsel, to the effect that plaintiff had in his possession money which he had collected for and which belonged to the defendants, had reference to the subject-matter of inquiry before the court: and if they had reference or relation to the case on trial, then they are strictly within the rule of privilege, and whether they were true or false, or whether they were spoken maliciously or in good faith are questions altogether immaterial-being privileged, no action will lie against the defendant. This being so, the evidence offered by the plaintiff for the purpose of proving them to be false, and that they were maliciously spoken, was inadmissible, and there was no error in the ruling of the court in this respect. And for the same reason the defendant's prayer that there was no proof legally sufficient upon which the jury could find a verdict for the plaintiff, was properly granted; and although the court erred in sustaining the demurrer to the plaintiff's twelfth replication, yet inasmuch as the words set out in the declaration were spoken by the defendant as counsel, and had reference to the subject-matter then before the court, this action cannot be maintained, and the judgment must therefore be affirmed.

MCSHERRY, J. (dissenting). I am of opinion that the judgment in this case ought to be affirmed; but I base that conclusion upon the broad ground that the privilege pleaded by the appellee is an absolute and not a qualified one. If the question as to the character of the privilege be an open one in this State, since the decision in Maurice v. Worden, 54 Md. 233, there is ample authority elsewhere to support either view that may be taken. But it seems to me that the cases

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