Revis v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1856 |
| Date | 01 January 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1314
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 195; 2 Jur. N. S. 614; 4 W. R. 506. See Fitzjohn v. Mackinder, 1861, 9 C. B. (N. S.) 521. Referred to, Henwood v. Harrison, 1872, L. R. 7 C. P. 625; Dawkins v. Rokeby, 1873-75, L. R. 8 Q. B. 264; L. R. 7 H. L. 744; Seaman v. Netherclift, 1876, 1 C. P. D. 545; 2 C. P. D. 53; Munster v. Lamb, 1883, 11 Q. B. D. 601.
revis v. smith. April 29, 1856. [S. C. 25 L. J. C. P. 195 ò 2 Jur. N. S. 614; 4 W. R. 506. See Fitzjohn v. Machnder, 1861, 9 C. B. (N. S.) 521. Referred to, Henwood v. Harrison, 1872, L. R. 7 C. P. 625; DawUns v. Eokeby, 1873-75, L. R. 8 Q. B. 264; L. R. 7 H. L. 744; Seaman v. Netherdift, 1876, 1 C. P. D. 545; 2 C. P. D. 53; Munster v. Lamb, 1883, 11 Q. B. D. 601.] No action lies against a man for a statement made by him, whether by affidavit or viva voce, in the course of a judicial proceeding, even though it be alleged to have been made " falsely and maliciously, and without any reasonable or probable cause." The second count of the declaration stated, that, before and at the time of the committing of the grievance by the defendant thereinafter mentioned, the plaintiff carried on the business of an auctioneer, and a suit was then depending in the high court of Chancery in which Emma Gardner, the wife of John Gardner, by John Cleaver Gardner, her next friend, and the said John Gardner, were plaintiffs, and the now defendant, and Harriet Frances, Ms wife, Sophia Smith, John Athawes, and Francis Gardner, James Gardner, Sophia Gardner, and Emma Gardner, were defendants,, and an order of [127] the said court of Chancery had been made in that suit, whereby it was, amongst other things, ordered that the said testator's real estate be sold subject to the mortgages, charges, and other incumbrances thereon, if any, unless the parties entitled to such mortgages, charges, or other incumbrances thereon, or any of them, were willing to join in such sale, in which case the sale was to be free from the mortgages, charges, or other incumbrances of such parties as should so consent; and, in that case also, the purchase-money affected thereby was first to be applied in discharge of such last-mentioned mortgages, charges, or other incumbrances according to their priorities; and, after the making of the said order, the plaintiff had been and was proposed by the plaintiffs in the said suit, to the said court of Chancery, as a fit and proper person to be appointed by the said court to sell the said property so directed to be sold by the said order as aforesaid, and such proposal was at the time of the committing of the grievance thereinafter mentioned by the defendant pending in and before the said court of Chancery in the said suit: Yet the defendant, falsely and maliciously, and without any reasonable and probable cause, made before a commissioner for taking oaths in the said court of Chancery, and swore before him, a deposition or affidavit in writing in the said court, and in the said cause, containing the defamatory words following of and concerning the plaintiff as such auctioneer, and of his conduct in the said profession or business, that is to say, Thomas Revis (meaning the plaintiff), of Olney, in the county of Buckingham, auctioneer, was introduced and recommended to me (meaning the defendant) by the above-named plaintiff John Gardner, in 1844, to offer for sale the said estates of Francis Smith, the testator in the pleadings named, 18 C. B.128. BEVIS V. SMITH 1315 which estates were valued by the said Thomas Eevis (meaning the plaintiff) at the sum of [128] 64501. for the purpose of determining the amount of duty to be paid upon the residuary estate of the said testator. The said plaintiff John Gardner took upon himself the management of the said sale, and fixed the amount of the reserved biddings with the said Thomas Eevis (meaning the plaintiff), and the said estates were accordingly offered for sale by the said Thomas Eevis (meaning the plaintiff) at Newport Pagnel, in the month of February, 1845, but no part thereof was then sold, by reason of the reserved biddings being fixed too high. The said Thomas Eevis (meaning the plaintiff) had at one period a very considerable business as an auctioneer in the district in which he (meaning the plaintiff) resides ; but I (meaning the defendant) have been informed, and believe it to be true, that his (meaning the plaintiff's) business has latterly very much decreased; and I (meaning the defendant) have been informed, and believe it to be true, that he (meaning the plaintiff) does not conduct his (meaning the plaintiff's) sales in a proper and fair manner, and his business (meaning the plaintiff's said business as an auctioneer) has decreased in consequence. I (meaning the defendant) have also been informed, and believe it to be true, that the said Thomas Eevis (meaning the plaintiff) was guilty of fraud in the management of an estate at Little Billing, in the county of Northampton, which was entrusted to him (meaning the plaintiff) by this honorable court a few years since, and in which he (meaning the plaintiff) was connected with one George Pell, a solicitor carrying on business at Welford, in the said county of Northampton; and, in my (meaning the defendant's) opinion, the said Thomas Eevis (meaning the plaintiff) is not a fit and proper man to be intrusted with the sale of the said testator's estates: and the defendant then falsely and maliciously, and without any reasonable or probable cause whatsoever, filed and published in the said court [129] and cause, and to the parties therein, and to the said court, the said libellous deposition or affidavit of and concerning the plaintiff as such auctioneer, and of his conduct in his said business; whereby the said court was induced to and did decline to appoint the plaintiff to sell the said property so ordered to be sold as aforesaid, in the way of the plaintiff's said business, as the said court otherwise might and would .have done ; and thereby the plaintiff lost the profits he would have made by being so employed, and was greatly injured in his good name and reputation, and in his said business : and the plaintiff claimed 5001. The defendant demurred to the second count, the ground of demurrer stated in the margin being, " that the second count shews the publication therein complained of to have been one not actionable." Joinder. Keane, in support of the demurrer (a). The declara-[130]-tion is bad. The party making the affidavit is privileged, even though he may have acted maliciously or without reasonable and probable cause. The action is evidently founded upon the suggestion thrown out in the note to Hodgson v. Scarlett, 1 B. & Aid. 232, 245 (said (a) The points marked for argument on the part of the defendant, were,-" That defamatory matter relevant to the cause, published by a party to the cause, in the cause, and to the court and parties, is not actionable,-that, although the grounds of complaint declared on as causes of action are in their nature incidental to all litigation, this action is unsupported by precedent,-that, notwithstanding the averments of malice, failure of reasonable and probable cause, and damage, this action is unsupported by analogy,-that, in respect to the specific matter of litigation to which the defamatory matters complained of appear to have been applied by the defendant, the plaintiff must be considered as a party, or, at all events, not as a stranger to the cause,-that, if the alleged causes of action be true, an indictment for perjury is...
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