Hodgson against Scarlett
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1818 |
| Date | 23 January 1818 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 86
IN THE COURT OF KING'S BENCH.
See Dawkins v. Rokeby, 1873-75, L. R. 8 Q. B. 261; 7 H. L. 744; Seaman v. Netherclift, 1876, 1 C. P. D. 545; Munster v. Lamb, 1883, 11 Q. B. D. 594.
86 HODGSON V. SCARLETT .1 B. & AID. 233. hodgson against scarlett (a)1. Friday, Jan. 23d, 1818. An' action for defamation will not lie against a barrister for words spoken by him as counsel in a cause pertinent to the matter in issue. [See DawUns v. Eokeby, 1873-75, L. R. 8 Q. B. 264; 7 H. L. 744; Seaman v. Nether-clift, 1876, 1 C. P. D. 545 ; Munster v. Lamb, 1883, 11 Q. B. D. 594.] Action for slanderous words. The words stated in the first count of the declaration were these : " Some actions are founded in folly, some in knavery, some in both, some in the folly of the attorney, some in the knavery of the attorney, some in the folly and knavery of the parties themselves. Mr. Peter Hodgson was the a'ttorney of the parties, drew the promissory note, fraudulently got Bowman to pay into his hands 1501. for the benefit of the plaintiff. This was one of the most profligate things I ever knew done by a professional man. Mr. Hodgson is a fraudulent and wicked [233] attorney." In the second count, " Mr. Hodgson is a fraudulent and wicked attorney." Plea, general issue. At the trial at the last Lancaster Assizes, before Wood Baron, Eaine opened the case, 'and stated that the action was brought for words spoken by the defendant, in an address to the jury, as counsel in the cause of Norris v. OormicJc, -at the preceding assizes, and that they were not warranted by the facts of the case. On this the learned Judge said, " I take it for granted from your opening, that there was such a cause tried, and that there was a question in it respecting the drawing of the promissory note as mentioned, and that these words, if spoken, were part of the defendant's speech to the jury, and had reference to that transaction." To this both sides assented; and he then added, "The observations might be too severe; that I can say nothing about; but, as they were relative to the subject-matter of the cause, as at present advised, I think the action not maintainable." Kaine then adverted to the words stated in the second count of the declaration, and to the circumstances of there being no justification by the defendant; upon which the Judge said, that as to the second count that could make no difference, because the words there stated must be taken by the jury to be part of the words mentioned in the first count, and you cannot by detaching part of a sentence make that actionable which, taken with the rest of the sentence, would not be so; that a justification is only necessary where the truth or falsehood of the words is in question, and that it was not necessary in a ease where the words could not be considered as maliciously spoken, if they were relevant to the matter in question. The words therefore being relevanb, the jury were not to try whe-[234]-ther on the former occasion they were well or ill founded. That would in fact be trying the former cause over again, and the whole business of an assize might thus be occupied in reviewing the causes tried at the preceding assizes. The learned Judge therefore being of opinion, that it was not for the jury to try whether the cause or occasion for speaking the words was sufficient to warrant them, thought there was nothing to leave to them, even supposing the words to be proved, and nonsuited the plaintiff. In the last Michaelmas term Kaine moved to set aside this nonsuit, and for a new trial, on the ground that the learned Judge had stopped the cause too soon, and without hearing the evidence, and he contended that it ought to? have been left to the jury to say whether the words were pertinent to the matter in issue or not, and he cited the case of Brook v. Sir H. Montague (a)2. Against which- rule cause was now shewn by Topping, Hullock Serjt., and Littledale. They contended, that it was not necessary to argue that a counsel has a right to say any thing in a cause that he pleases, however scandalous or defamatory it may be : but that on every principle of law it was necessary to shew malice. [Lord Ellenborough C.J. The malice in these cases must go to the jury : if so, must not all the facts which tend to prove it go to the same forum 1 The-speaking of words wholly unauthorised would be a circumstance from which malice would be inferred.] The mere inference of malice from the falsehood of the [235] words which in. common cases would be sufficient, is not so here. The words were spoken in the course of a cause with reference to facts already proved, and to facts which were to be proved. They were used as observation (a)1 Cause was shewn at Serjeants' Inn. (a)2 Cro. Jac. 90. 1B.&ALD.2S6. HODGSON V. SCARLETT 87 and 'inference. In common cases it would be necessary to justify the truth of the words, because if they were not true, the law would imply malice : but here the party may plead the general issue, and no action will lie against him unless actual malice be proved. In Wood v. Gimston (a)1 it is laid down, " That if a counsel spea'ks scandalous words against...
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