The Statesman.
London, England, 1818-01-23 00:00:00

.4AVIT?Ti. r

Liar nrnatiGgNce. '`‘
eOUICT OF IMO'S BENCHII, SERJEANTS
Jats.l.
HOWSON V. lIICARLETTI
We mentioned this singular and important ease,
on the motion by Mr. Heine early in the last Term,
to,fiet aside a nosseit ordered: by Mr. Heron Wood
on the trial at the lest Assizes for Laucashine. The
action was for &oder, the Plaintiff being an etterney,
and the Defendset the eminent King'. Comma. The
words were alleged to have been spoken in theaters'
of.; a. cause of .Norris v. Cormiet, tried et the pre.
coding Assizes, and they were thus ;needed in the
flail comet of the declaration:—" Some actions are.
feeeded in folly, some in knavery, and some in
kotit. Some in the folly and knavery of the Attor.
imy, endues, in the folly sad knavery of the party.
Peter iledpon is the attorney of the plaintiff:
I drew the promimory note frodelently, and got
Bowmen to pay into his lamb the sum of • L5Ol, for,
40 benefit of,the plaintiff. The was the most -frau-
dulent thing I ever knew done by a professional
imen. Mr. Peter Hodgson is a fraudulent aid wicked
04t^1,47."
611r.,Jostice li4staower first read the report of Mr.
Haien Wood as to what passed on the trial, noticittg.
lb..opening of Mr. Reim', who led for the Plaintiff
at the Assizes; after which his Lordship declared 1111
opinion to he, that the action was not maintainbie.
if the Counsel did act wander oat of the cause, and
If what he stated were relevant to the matter in issue:
to# Slender in a judicial proceeding, his Lordship
added, that he apprehended no action would lie ; if
ecandalous or impertinent matter were introduced
Wins bill in equity, the question was referred to the
Master. and if he reported in the affirmative, the
vtaihtiff was compelled to pay costs ; but his Lordship
Mad never supposed that an action was maintainable
upon it. The Counsel fur the Plaintiff had submit-
ted to be tionsuited, the words being admitted.
The report having been concluded,
Lord Ects:ceotioucii observed, that it was there
stated, as an admission by Mr. Heine for the Plain.
tiff Hodgson, that the words spoken by the Defend.
out *ere relevant and pertinent.
Mr. RAINE. for his own sake, felt called upon to
state, that he had made no such admission : he had
contended that that was a question for the Jury.—
lie had submitted to the nonsuit, in deference to the
strong opinion of the Learned Baron, having, at the
same time, an undoubted right to go to the Jury, if
he bad chosen to do so, that they might decide the
Point how far there was any ground for the slander.
The relevancy might perhaps have been admitted for
the sake of argument, but certainly in no other way.
Mr. TOPPING (for the Defendant) said, that the
admission of the relevancy had formed a very pfoMi•
Mint feature in the proceeding. The observation of
Mr. Scartett had referred to a note proved, in the
ease of Norris and Cormick, to have been given by
Bowman to two persons of the names of Cormick
anchSpittsl, and it was connected with the sale of a
ship, in which Norris had a share.
Mr. R rive observed, that these facts did not ap-
pear on the report.
Mr. TorrING contended that be was regular:—
Norris v. Cormick had been fortunately tried before
Mr. Justice Bayley, who would recollect the facts.
He then proceeded to show cause against the rule,
ohsersiii4 that it was quite clear by the report that
Mr. Baron Wood was right in directing the uonsuit ;
the Learned Judge had, however, fallen into an
error where he stated that the Counsel for the De.
fetishist admitted that the words had been spoken;
sto sui.h admission was made.
Mr. RAIN& allowed that the observation was war-
ranted, and that the Learned Judgi only meant, that
for She sake of raising the point on which be non.
suited the wordslbeere admitted to have been spoken.
Mr. TorrING repelled that he had not been pre-
vent at the trial on ace f illness, and conse-
quently rthit he had no ti4We of the opening of Mr.
Heine; he had, however, distinctly understood that
Mr. Rake had conceded: that the words charged as
elendereas were addressed to a Jury in the course of
e cams* to the facts of which they were relevant. The
Learned Bann had then • If the Plaintiff could
prove malice:land the an ing in the negative,
be interposed again, and r .ed to be shown a pre-
cedent for the proceeding, but none was produced :
then it was that Mr. Baron Wood observed, that if
each actions could be supported it would be most in-
ierious, not merely to the Bar, but infinitely more to
the Public. On the motion for the rule Nisi last
Term, the use of Brooke v. Sir 11. Montague had
been referred te, in order to show, first, an instance
of the kind ; and neat, that the Defendant had put
on the record a special plea of justification, from
whence it ass to be inferred that he could not have
gone into his defence under the general issue; but
Mr. Justice Buller (N. P. 10) b•
otherwise. " the Defendant may
tine, plead thee the words were
Counsel in a caste. and that they
the matter its question, Ike,: or
matters in evidence upon the general
'wove him not guilty of the words ,
language could be stronger or more
if the fact that the words were
in the course of, and with reference to, a cause then
pending, and without malice, did not afford a pro-
tection to a Counsel,• what protection bad any Gen-
_
demon at the Bar ? their r -
must be paralized; the Judges
Se eseropt fret* actions of
of their charges to the Jury
animadvert upon the fraudulent
of any party brought before
Lout ELLeNnottonou
the words spoken were
issue ; *bey might be relevant
but it did not yet appear that
to the case. Prima.facie
tiff in this case might be ,
malice is a question 'for the
ever tends to prove or to
fore them : all the circumstances
lug of the words seemed
tame forum.. The speal
slanderous words *as of
did not. require that at
them should actually be
utterer : if the slander a,
silk. us.

a -
• _f. PI
M gams 44 the iiMnissovil irSe
most important part of Sitrearse in Norris v. Cormick,
and he urged the dreadietly responsible situation in
which Come, would stand, if what his Lordship bed
stated were the law : all comment upon evidence or
facts must be done away with, .for no rodent men
would run the- risk of **posing himself to on action.
Mr. Justice Bayley, in theme of Norris v. Cormick,
had been clear whist the Pleintiff, for whom Mr.
Hodgson wee Attorney.: it was in evidence, that the
Plaintiff had already received more than was due WI
him, and that his attorney knee it, and a nenegit I
was directed accordingly : the promissory note wit;
reed, to-which Mr. liodgion• bad been pricy, seat
by which his Client's claim was more than saes;
fwd. He farther begged to refer the Court to the
case) of Wood v. Gunston (Styles, 462: and Ina.
Abr. tit. Counsellor, 478); it was in these words:—
" Oa a trial at Bar, on an action upon the case for
words between W. Plaintiff, and G. Defendant, k
was said by Glynn, Chief Justice, that if • Counsel.
for speak scandalous words against one, in defending
his Client's cause, an action does not lie against him'
for so doing of his duty to speak for his Client, settle
shall he intended to be spoken according to MC
Clieat's instructions."
Lord Euxesonotrow.—Withiu the scope of bk
duty certainly not.
Mr. Tomes added, that Counsel, in the !Tortola
discharge of their professional functioni, might have
different notions; one might make an observation
that another would avoid, or in• stronger language
than some might consider prudent, and yet without
the least imputation or suspicion of malice: miserable
indeed would be the condition of the Bar, if Counsel
were liable to have their words, uttered often in the
warmth of an honest seal, weighed in such nice
scales. It would then be necessary for them merely
to open the declaration, and call the witnesses, omit-
ting all comment, however necessary and justifiable.
Advocates hitherto bad been looked up to as a most
respectable and useful body ; hut if their rights, pro-
perty, and even liberty, were thus to be put in jeopar-
dy, it would be far better that the race should be
utterly extinguished.
Mr. Serjeant BULLOCK followed on the same side.
Two grounds had been stated by Mr. Rains for his
Rule to set aside the nonsuit :—lst, that the words
were in themselves false; 2d, that as there was no
justification on the record, the Plaintiff must neces-
sarily have been entitled to the verdict. As to the
second point, it seemed clear that no special plea was
required.
Lord Euxtreonoeue.—Certainly every thing that
goes to the repulsion of the charge of malice may be
given in evidence under the general issue.
Mr. Serjeant Refute!' continued—Consequently
the first point was the only one of importance. Of
course he could not mean to argue, that a Counsel
was at perfect liberty to say all he pleased, or to
otter all kinds of aspersions upon the parties or their
Attornies with impunity ; but in any action for
slander against him, it was necessary not merely to
show that the words spoken were false, but that they
were malicious, and this not by inference of law, bet'
by direct proof of a malignant motive. In ordinary
cases it was enough to prove the falsehood and the
malice was intended, bat here there was a great die-
tinction, as was shown by the fact of entering into
the proof under the general issue, which could not
be done in common actions for defamatory words.—
He submitted that the principle of law which govern-
ed actions brought by servants against their masters
for false characters, applied to the present, viz. that
express malice must lie established in evidence. In
support of this position, he cited Westherston v.
liawkins (1 T. It. lID); Edmondson v. Stephenson
(8011. N. P. 8); Ilargrave v Gretton. (4 Burr.
2425); and Rogers v. Sir J. Clifton (3 Boss. and
Pull. 587).
Lord ELLENSOROUGII.--Millre, I agree, Is to be
proved, but in what way ?—by the absence of any
justification for speaking the words, not espress ma.
lice by a declaration of ; but if there be no
colour or authority for what Is said, the law infers
malice.
Mr. Justice BAYLEY observed, that the stress of
the case was, whether the words spoken were or were
not relevant to the cause.
Mr. Serjeant Ilet.Locx was ready to allow that
when a Counsel went out of his way for the purpose
of calumniation, when what he stated bad no refe-
rence to the matter in issue, but was a mere invention,
malice would be inferred ; but here the case was di-
rectly othirwise: the words that Mr. Hodgson was
a fraudulent and wicked attorney, had reference to a
bill of eitchange material to the cause and given in
evidence in it. The Learned Serjeant then Melly
related the leading facts as proved in the case of
Dierris and Cormick, in order to show that Mr.
Hodgson well knew, before he brought the plaintiff
' that he (the plaintiff) had no claim upon
that claim having been satisfied by
promissory mile, in the drawing of which
bad himselrbetta instremental. At the
. the detail,
ELLENsonovcst said—lf that be the state of
words appear to be very relevant.
BAYLEY, who tried the vase of Nor-
added a few material particulars to
those stated by Mr. Serjeant
Lord Eu.straoftotron.—lt should seem that Mr.
Hodgson knew that his client was bringing an action
y paid. He is
ought to do In
is, whether
malice.

if the nonsuit
Tonld be, that
Astizes, sod

Mr. Ra)no to
representation of

memory, bat
tried the mate,

of Mr. Scarlett
the Jury that
conduct of Mr.
that in the words
be some MCC'S ;
blame for brieg.
Condon that

Vr. Runs contendativetrat whether he was or was
got consdoos wee a point at issue.
Mr. Plaice Batiltr .tazsurved, that io ensulelase
op horsther. wished to takeoff the sharper edge of
Mr. &unfelt's observations writ Mr. ll•dgialii be
thought them too severe.
Mr. Rause, in sopped of his rule, still insisted
that the malice was a question for the Jury : he had
not admitted that there was so malice; on the con-
trary, he had put it to the Jury, whethee'llf any man
had said •• Mr. Raise is a frataduleet and'wicked
Barrister," be should not have an unquestionable
right to say that the words were dictated by malice.
He had never charged Mr. Scarlett with express ma.
lice, with taking advantage of his station to slander
an individual against whom he entertained hostility,
but he had insisted that malice was a matter of infer-
ence for the Jury.
Lord ELszononovoit.—Certainly the expressions
appear to be overcharged ; it may not be prudent or
correct generally to mix the Attorney with his Client,
bet here it seems that Mr. Hodgson induced a Plain-
tiff to bring an action in which he could not succeed,
and though the words fraudulent and nickel may be
stronger than others might have used, yet as applied
to the promissory note are they not relevant' and if
relevant, are they net within the protection of the
law?
Mr. RUNE added, that the Attorney might have
taken an erroneous view of the rights of his Client.
WherLete made the motion for the vole Niel, he had
cited the case of Brooke v. Sir 11. Montague merely
to show that words spoken by a Counsel were ac-
tionable, because Mr. Baron Wood had said at the
Assizes that no action at• all of the kind could be
maintained. The case from Styles seemed a monstrous
absurdity : a Counsel was to be excused, becauie it
will be contended, that the words are spoken pur-
suant to his Client's instructions. If the party in-
jured then proceeded awing the Attorney, he re-
plied by showing that the words were not in the in-
structions he had given to Counsel : so that a man
might be abased in the most public manner without a
remedy. • In opposition to it, he referred their Lord-
ships again to the case of Brooke v. Sir 11. Mon-
tague, decided when Popham was Judge, and Yet.
verton and Coke Counsel.
Lord ELLENBOROUGII.—A certain latitude most
be allowed, otherwise it would be impossible for
Counsel to discuss matters at Nisi Prizes: as long as
he bona fide, fulfils the duty cast upon him, even
though he overstep the strict line, he shall not be
held to be malicious: it may work some disadvantage
to a party now and then, but that is an evil arising
out of a greater benefit.
Mr. RAINE concluded by observing that the Plain-
tiff could have given evidence to show that there was
no truth in Mr. Scarlett's statement.
Mr. RiC*Anosots, on the same side, argued that
at least the urns-suit premature : it had heel. con-
tended on their part that the words were irrelevant,
and consequently theadmission spoken of could nut
have been made unless the Counsel were willing to
admit themselves out of Court. The facts detailed
to-day on the other side ought to have appeared in
evidence at the trial, if at all, to rebut the inference
of malice.
Lord Eu.sttsoaciuon.—The admission amounted
to this—that the words applied to the conduct of
the Plaintiff in another cause, and the Learned
Judge proceeded on an assumed admission of the re-
levancy, which would have been evident had the facts
stated been gone into.
Mr. litscnzansou added, that there could be no
pretence for saying that the privilege of a Counsel
was similar to a Parliamentary privilege.
Lord En.venozotn.:ll.--Thr Lwow! Baron was
there certainly wrong, but that does not appear upon
the report; the one bears not the least analogy to
the other.
The COVRT consulted for some time, after which
Lord ELLENIWEOUGH 'aid, tie law privileges
many communications which otherwise might be con-
sidered calumnious, and the subjects of actions : in
those regarding the characters of servants, it is ne-
cessary, for the convenience of mankind, tl.at there
should be a free disclosure; and if it he made bow
fide, and sailboat express malace, without a design
to state what is untrue and unprovoked, the law
protects it from Wog the subject of an action. So
in the case of Counsel," who are appointed by the
parties as better able to conduct their causes : the
Client consigns his interests to a Counsel, who only
speaks from information, and he is privileged when
commenting upon the evidence or instruments pro.
duced in the course of the trial. It appears that the
Plaintiff was not only the attorney in the cause,but
had
been connected with previous transactions, and in
the concoction and drawing of a promissory note, so
that he must have been cognizant of the merits before
he went into Court ; and as it turned out on the trial,
as he well knew it most, thit the demand had been
satisfied, his Client of course was defeated. In corn-
elauting upon the circumstances, the Learned Conn-
who is here the Defendant, said, that the Plain-
tiff, was a fraudulent and wicked Attorney : be had a
right to animadvert upon his conduct, and he could
not do so without noticing him as the instrument in
the formation of the promissory ante which was the
chief ground of the uonsuit : be did not therefore,
take him at random, or draw his name in unneces-
sarily. I should say, that the language is strongly
charged, for it accuses Mr. Hodgson of a fraud be-
tieen man and man, and with wickedness. in ford
digits°. This was perhaps, not displaying that for-
besmear which it might be prudent to adopt; but
yet I cannot say that the accusation does not arise
out of the subject matter of the case. If the Attor-
ney knowingly pliced the parties in a situation where
they must undoubtedly bosufferers without any bens-
it, it does seem to sive a colour to the charge of
being ray that,there
is no i Camillo*
to set
It mi the acclimation
°PP" 'that it Isla
a mi on was made
at ter •trictly conceding
the actual facts
now cniitldslon at
'hie' And *Xs equiva-
lent disclosure of the facts.
It appears to me that the words spoken wive tittered
in the cause, and relevant to the cause: tristi,•con-
sequently, that the action is not maintainable.

load beld expressly Imo Court, that
rby way of jostifica- the defendant,
re spoken b ' as means of a prow
py were Mr. Hodgson be
or he may occlusion of do
Isere! issoe Lord ELLEKI
malicious! cis, the words
ore to the poi Mr. Justice I
addressed to a Jury ris v. Gorelick,

MI protection uau our vcio. aasnago.. -
efforts for their Clients for money which he had been already
Fudges themselves might not therefore not conducti she of
f 1141 kind, if in the course bringing the action, a lion
Jury they found occasion to these female not suffi 1 the
Redolent er.wkked condoct Mr. Mont HULL that if
'ore them. were ret aside, the on uenoe tit
espremed a doubt who • the parties would go do again to the
I relevant to the matter it at length arrive only at the same melt.
vatit to the promissory Lord ELLtnatistoua lied upon b
that that note was int • . s, state, whether he d' in the reps
the argument for lb. facts made by Ser. ock.
e thus shaped Mr. [Lung obi `pledging his t
the Jory ; and 14 • • appealed to the I 'ledge who tri
• repel it, properly • Ite• whether he thought e observations of
ustances aiteisdingAbe speak. warranted. In summing up he bad told
ed properly to beton II lie saw nothing impeopie in the con
raking of unaethori lodgson.
r itself malicious, and Lord ELLEusoitoneu observed, that
t the time they were s. • rfraudukat and wicked there might be
walks In the mind of the but certainly Mr. Hodgson deserved ble
its uswacsatedi it was also. ing a cause into Court, when.he wits
his client must be defeated. ,

g fraudulent andhiCkod : I cannoto
reasonable or probable conic for
ate in the eserrise of bis del of cni
ay be urged, that the relevapcy of 11
mred here, of at_ the trial .ond
inner ex Min" ifilliissi•
to Assis gb hot sided
relevancy, yet ed shit the
disclosed, Reins lo warrint the t
eh the Learned Baron•arrfved, and
In some sort to an actual disclosurt