1817. RHODES v. Topping, Littledale, and Williams, contrà.-He has no existing interest. He may never have an interest. He is not rated; the rate is not upon AINSWORTH. the premises, but upon the occupier. He is no occupier. If the verdict be against the plaintiffs, and the rate is due, Mills' tenant must pay it. If the verdict be for the plaintiffs, how is his situation altered? He may die before he becomes an occupier, or may never occupy at all. 2 East. 559. and 54 Geo. III. (per Sir Egerton Brydges' Act). WOOD, Baron.-I think this witness is not competent. Although he has no interest in presenti, that is to say, though there will be no direct charge upon himself, yet his tenant may be obliged to pay ;-and will not he, therefore, as owner of the fee, have his estate permanently burthened by this incumbrance brought upon it? He has property in the chapelry which may be affected in its value by the event; although he is not interested at the present moment by having been already rated. Nonsuit. Topping, Littledale, and Williams, for plaintiffs. Scarlett and Richardson for defendant. Topping moved to set aside the nonsuit in the next term; but the Court agreed with the ruling of the learned Judge. 1817. TH HODGSON V. SCARLETT, Esq. No action can be main a counsel, for words spoken in a judicial proceeding, provided they to the cause, malice against who is the subject of the are pertinent and that no the individual words, be proved against him. THIS was an action for defamation. The plaintiff was an attorney, and the defendant a tained against gentleman at the bar. There were two counts in the declaration; and the words in the first count, which were charged to have been spoken by the defendant of the plaintiff in the trial of a cause at the Spring Assizes for Lancaster, 1817, were as follows:-"Some actions are founded in folly, some, in knavery, and some in both some in the folly of the attorney; some in the folly and knavery of the parties. Mr. Peter Hodgson, (meaning the plaintiff,) was the attorney for the parties, and drew the promissory note fraudulently; got Beaumont to pay into his hands 150l. for the benefit of the plaintiff. This was one of the most profligate things I ever knew done by a professional man."-There was a second count in which the words charged were these:" Mr. Hodgson, (meaning the plaintiff,) is a fraudulent and wicked attorney." The defendant pleaded the general issue. Raine, for the plaintiff, stated, that the words were spoken of the plaintiff by the defendant in his character as counsel: that the plaintiff had been engaged as attorney, in a transaction which was the subject of a suit at the Spring Assizes for the county of Lancaster, 1817, in which Mr. Scarlett, as counsel for the defendant, spoke the words contained in the declaration. He then pro 1817. HODGSON v. posed to prove, 1st, That the words were spoken. 2nd, That they were totally unfounded. SCARLETT. Mr. Baron Wood asked Mr. Raine, if he could mention any action of the same kind, or upon what principle the present action was maintained. The plaintiff's counsel stating, that they believed the action to be prime impressionis. Mr. Baron WooD.-It appears to me, that no action can be maintained for words spoken in judicial proceedings. I take it for granted that there was such a cause as the one alluded to tried here at the Spring Assizes; that there was a question in it concerning the drawing of a promissory note; that the words charged to have been spoken had reference to that transaction, and were addressed to the plaintiff by the defendant as observation in the cause. If so, although the words might be too severe, (of which I will say nothing,) if they were, notwithstanding, relative to the subject matter of the cause, I am of opinion that no action can be maintained. I will admit that there must be some limits to the privilege of speech at the bar; but it is difficult to draw a line. A case may occur where an action like the present would be maintainable: for instance, if a counsel should stop short in his speech, and call a man a rascal or a scoundrel, and should introduce any coarse slander, not relevant to the matter in issue, I should not say that the action, in such case, would not be maintainable. It is necessary to the due administration of justice, that counsel should be protected in the execution 1817. HODGSON of their duty in court; and that observations made in the due discharge of that duty should not be deemed actionable. But counsel are not, therefore, protected in making any slanderous reflections out SCARLett. of court. They would be answerable for such reflections, if calumnious, upon the principle of Lord Abingdon's case. But I have always considered it to be an established principle in law, that for imputed slander, originating in judicial proceedings in court, no action will lie. Being of opinion, therefore, that the words were pertinent to the subject matter of discussion, and that it would be improper that the Jury, under such circumstances, should try whether they were well or ill founded I am ready to pronounce that the plaintiff cannot maintain this action. If it were encouraged, where should we establish any limits? The business of one assize would be to try actions for words spoken at a former. Plaintiff nonsuited. Raine and Richardson for the plaintiff. Topping, Hullock serjeant, and Littledale, for the defendant, In the next term, Raine obtained a rule nisi, to shew cause why there should not be a new trial.-Cause was shewn against the rule at Serjeants' Inn on the 22d. of January, 1818. The judges delivered their opinions seriatim. Lord Ellenborough, in deli vering his judgment, said, that 1817. HODGSON v. SCARLETT. This privilege was absolutely necessary for the common convenience of mankind. The privilege of counsel was subject to the same observation. An advocate was entitled to use the information communicated to him by his client, in a fair and bonú fide exposition of the merits of the case submitted to his conduct: he was privileged in commenting on the case, and making observations upon the instruments or agents by whom the case was brought into court. This privilege belonged to him, and might be exercised with a large and liberal freedom. In this point of view, it was necessary to consider the situation of the person who was the subject of the observations which formed the ground of this action. The plaintiff was not only the attorney in the original cause, but he was mixed up with all the facts of the case, and was the sole instrument in the concoction of the merits of the question then before the court. It was proved that he was the instrument in drawing the promissory note, as a security for the due application of the proceeds of the ship, when they should be forthcoming: he, therefore, was most cognizant of the merits and circumstances of the case and he knew, as a professional man, that there was no ground for the action. In commenting upon this case, and the particular situation in which the plaintiff, (Mr. Hodgson,) stood, the learned counsel said, "he was a fraudulent and wicked attorney." He had a right to comment upon him, for he could not comment upon all the circumstances of the case in their proper light, without adverting to him as the instrument which put the action in motion, and as the manufacturer of all the information upon which the action was founded. So far, then, as the circumstances of this case went, it did not appear that the learned counsel had attacked the plaintiff at random, or had gone out of his way for the purpose of slandering his character In the natural order of things he must comment upon the transaction as it appeared in evidence. As Mr. Hodgson was the agent in the transaction, what was the effect of that circumstance? Why, it stript the plaintiff, in that case, of all right to maintain his action. The learned counsel, adverting to the instrumentality of Mr. Hodgson in the transac→ tion, called him "a fraudulent and wicked attorney." Perhaps he, (Lord Ellenborough,) |