Seaman v Netherclift
| Jurisdiction | England & Wales |
| Year | 1875 |
| Date | 1875 |
| Court | Court of Appeal |
Slander - Privilege of Witness - Answer as to Credit of Witness.
A witness in a court of justice is absolutely privileged as to anything he may say as a witness having reference to the inquiry on which he is called as a witness.
A statement, as to another matter, made to justify the witness in consequence of a question going to the witness' credit, has reference to the inquiry within the above rule.
Defendant, an expert in handwriting, gave evidence in the trial of D. v. M. that, in his opinion, the signature to the will in question was a forgery. The jury found in favour of the will, and the presiding judge made some very disparaging remarks on defendant's evidence. Soon afterwards defendant was called as a witness in favour of the genuineness of a document, on a charge of forgery before a magistrate. In cross-examination he was asked whether he had given evidence in the suit of D. v. M., and whether he had read the judge's remarks on his evidence. He answered, “Yes.” Counsel asked no more questions, and defendant insisted on adding, though told by the magistrate not to make any further statement as to D. v. M.: “I believe that will to be a rank forgery, and shall believe so to the day of my death.”
An action of slander for these words having been brought by one of the attesting witnesses to the will:—
Held, that the words were spoken by defendant as a witness, and had reference to the inquiry before the magistrate, as they tended to justify the defendant, whose credit as a witness had been impugned; and that the defendant was, therefore, absolutely privileged.
APPEAL from the decision of the Common Pleas Division, ordering judgment to be entered for the defendant.F1
Claim: that defendant said of a will, to the signature of which the plaintiff was a witness, “I believe the signature to the will to be a rank forgery, and I shall believe so to the day of my death,” meaning that the plaintiff had been guilty of forging the signature of the testator, or of aiding and abetting in the forgery.
Defence: that defendant spoke the words in the course of giving his evidence as a witness on a charge of forgery before a magistrate.
Reply: that the words were not bonâ fide spoken by defendant as a witness, or in answer to any question put to him as a witness, and he was a mere volunteer in speaking them for his own purposes otherwise than as a witness and maliciously and out of the course of his examination.
The facts are fully given in the judgment of the Common Pleas Division, and are sufficiently stated in the head-note.
M. Chambers, Q.C., and J. Torr, for the plaintiff, contended that the privilege of a witness was not unqualified, but was confined to matter strictly relevant to the issue; and that malice would also deprive the witness of the privilege; and that the statement of the defendant was, as the jury had found, volunteered after the defendant's examination as a witness was over. They cited and minutely commented upon the following authorities: Roscoe's N. P. Evidence, p. 835; Ayres v. SedgwickF2, in which Brode's Case, Hil. 37 Eliz., and Chamberlaine's Case, 7 & 8 Eliz. are cited; Harding v. BullmanF3; Bac. Abr. tit. Slander (E); Buckley v. WoodF4; Trotman v. DunnF5; Hodgson v. ScarlettF6; Revis v. SmithF7; Dawkins v. Lord RokebyF8; Kennedy v. HilliardF9; Allardice v. Robertson.F10
McIntyre, Q.C., and Edward Clarke (Agabeg with them), for the defendant, contended that as long as the witness was acting as a witness the privilege was absolute, and this was supported by a long series of authorities. The finding, therefore, of the jury as to malice was immaterial, and it was contrary to the evidence that the defendant had ceased to be a witness when he spoke the words complained of as slander. They commented on the cases cited for the plaintiff, and cited Rex v. SkinnerF11; Scott v. StansfieldF12; Astley v. YoungeF13; Henderson v. BroomheadF14; Thomas v. ChurtonF15; Mackay v. Ford.F16 And they relied especially on Dawkins v. Lord RokebyF8 as an à fortiori case.
M. Chambers, Q.C., in reply.
COCKBURN, C.J. The case is, to my mind, so abundantly clear, and I believe to the minds of my learned Brothers, that I think we ought not to hesitate to at once pronounce our decision.
The plaintiff brings his action against the defendant for slander, alleged to have been uttered on the occasion of a prosecution for forgery before a magistrate of the city of London. The defence set up is: “True, I did utter the words imputed to me, but I spoke them when I was a witness in a case in which I was called as a witness.” The plaintiff's answer to that is, “Yes, you were called as a witness, but you spoke these words when you were no longer giving evidence, and not only knowing them to be false, but also not in the inquiry, and dehors altogether the subject-matter of the inquiry, for your own purpose of maliciously defaming me.” At the trial before Lord Coleridge it appeared that in the Probate suit of Davies v. May the defendant had been examined, as an adept, to express his opinion as to the genuineness of a signature to a will, and he gave it as his opinion that the signature was a forgery. The president of the Court, in addressing the jury, made some very strong observations on the rashness of the defendant in expressing so confident an opinion in the face of the direct evidence. Soon afterwards, on a prosecution for forgery before the magistrate, the defendant was called as an adept by the person charged, when he expressed an opinion favourable to the genuineness of the document. He was then asked by the counsel for the prosecution whether he had been a witness in the suit of Davies v. May. He answered “Yes.” And he was then asked, “Did you read a report of the...
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