IRISH.]

an

which, as personal representative of the latter, it was John T. Ball, Q.C. in reply.-Issue has been taken the defendant's duty to get in. The defendant himself on the truth and relevancy of the matters complained got a side-bar order to strike out the matters here com- of. The third count does not aver an affidavit, but a plained of. The question is, whether the fact of the document. What excuse appears on the defence for defendant's obtaining the side-bar order stops him from saying my client swore falsely? The fact of the plaintiff's saying that the contents of the affidavit wer per-objecting to the fee charged for defendant's services and tinent. [GREENE, B.-The demurrer does not raise Cullen's attendances, is no answer; and yet that is the question of estoppel?] It is virtually raised; and, virtually the excuse. This is merely a tu quoque arguif not, the affidavit is evidence to go to a jury as to ment. Cullen charged for attendances, and you swore pertinency or not. [GREENE, B.-Granting that, is falsely. We contend that relevancy should be averred the rejoinder any answer to the replication?] We and shown. None of the judges in Revis v. Smith maintain it is. In Revis v. Smith, 18 C. B. 126, went deep into the question, save Willes, J., and he the plaintiff, auctioneer, brought a special seems to have decided on the ground that express action on the case against the defendant, who malice, combined with falsehood, was not shown in the had made an affidavit in which he stated that the conduct of the defendant. Without doubt an action plaintiff did not conduct his sales in a proper man- for libel would lie on irrelevant matter. [PIGOT, C.B.— ner, and had been guilty of fraud in the manage- Is there a case of it ?] No; for in all cases relevancy ment of an estate; yet the court unanimously held that has been assumed; he ought to see the whole of this no action lies against a man for a statement made by affidavit. To the best of my recollection Chief Justice him, whether by affidavit, or vivâ voce, in the course of Monahan, in the Court of C. P., in a recent case a judicial proceeding, even though it be alleged to somewhat similar to this, called for an affidavit, and have been made "falsely and maliciously, and without having read it, he said he would not be bound within any reasonable or probable cause." [GREENE, B.-But the limits of the pleading in which the whole affidavit there was no expunging there.] It was to aid the did not appear. And the recent enactments abotaxing master that the defendant obtained the side-bar lishing over of documents, does not prevent us from rule. Not because the objections were tenable: but producing that affidavit. I cannot find in any work merely to lessen the costs. That such was the proper on Chancery practice, what is the effect of expunging course to pursue, appears by the 70th and 71st General the matter so treated. [PIGOT, C. B.-Suppose a Orders, 1843: (Blackham's Ch. Pr. 40.) This is question asked to a witness, to elicit slander, and he not an estoppel against the defendant by matters of answers, as he must, and the answer is expunged, by record, for it is not grounded on any judgment. order of the court, is that witness liable to an action ?] Portions of an affidavit, on which a taxing master The defendant sets up, that the matter complained of has adjudicated, do not constitute a judgment in rem, was in an affidavit. We say. True, it may have been in and further, the defendant was no party to the an affidavit on the 8th of May; but as a statement in original Chancery proceedings; so even if there were a sworn document, it remains, and has been circulated any judgment, it would be no estoppel. There is no in attested copies. Cur. adv. vult. certainty here; the portions complained of might have June 11.-PIGOT, C. B. now delivered judgment. been afterwards struck out, as prolix, or scandalous, or This is an action of libel, in which the plaintiff charges impertinent. Nor is such an estoppel reciprocal, which the defendant with having obtained letters of adminisis an essential ingredient. The defendant's privilege tration to his deceased brother, by making false statehere rests on the same footing as that of a witness.ments to the Prerogative Court. The defence is, that the An action will not lie against a judge for a censure on alleged libel is contained in an affidavit sworn in the a party who comes before his court. There is no pre- | Court of Ch. To that the plaintiff replies, True, but cedent for such an action as this: (ride Roscoe on Ev. the portion of the affidavit which contains the alleged 540, and the cases there collected.) Although, in the libel was expunged by order of the Court of Ch., note to Hodgson v. Scarlett, 1 B. & Ald. 232, it is and therefore is not protected by the privilege exsaid that a special action on the case would lie against tended to judicial proceedings, as not being part of a witness; but there is no such case in the books. | them. The defendant then rejoins that he himself got [PIGOT, C.B.-I never heard of an information being the above portion of the affidavit expunged, by an ez made the subject of an action for libel.] There is no parte motion, and that the court never having proinstance of it. The very fact of the defendant expung-nounced any judgment relative to the above portion ing the objectionable matter as scandalous, rebuts the of the affidavit, the privilege still exists. Two quesimputation of libel. The onus of proving that the tions arise here: the first, on the summons and plaint; defendant is not privileged lies on the plaintiff. If a the second, on the replication. The first is, whether master gives a bad character to a servant, and the an action for libel lies on the contents of an affidavit, latter brings an action of libel, the master is protected and that involves the consideration as to whether the by privilege, although he need not give the servant a object for which the affidavit is made can be noticed. character unless he wishes; à fortiori, a witness will The second is, where the alleged libellous portion of be protected, since he has no option as to giving his an affidavit has been expunged, whether that portion evidence. The Duchess of Kingston's case, 2 Smith retains its privilege, after its removal from the files L.C., is the leading case on estoppel by judgment. of the court? As to the first question, it is admitted GREENE, B. Suppose an affidavit, or general order, that there is no precedent for this action. Davenis taken off the file, that affidavit is not a record of port v. Sympson, Cro. E. 520, is the earliest authority the court.] No action would lie on it, still less here, on this subject. That was an action brought 260 where the matter is expunged, and has ceased to exist. years back, against a witness for swearing at a priIt is absurd to say that an action will lie on inter-soner's trial that an article belonging to the plaintiff locutory proceedings. Is it to be said than an action was of less value than the plaintiff estimated it at. could be brought on an apology made by a judge or There was a verdict for the plaintiff, and it was moved counsel, when it would not lie on words spoken by in arrest of judgment, that the action lay not, for the them when discharging their respective duties ? De-law intends the oath of every man to be true, and that fendant's plea does not aver that it was on the ground a form of punishment for perjury was provided by of irrelevancy that the matter was expunged; it may 5 Eliz. c. 9, and three out of four judges were of may have been for prolixity that the defendant curtailed his affidavit. The defendant advised his counsel to expunge the matter, and publication ceased from the moment of its removal.

opinion "that the action lay not, that if the plaintiff should be punished in law by that action, there would be some precedent of it before this time; but as there is not any precedent formed thereof, is is a good

before bankruptcy false representation as to solvency 76 Things firmly affixed to freehold by mortgagor after

5 Husband not entitled to an equitable charge on wife's
estate, where marriage has been dissolved for her adul-
tery, for moneys laid out by him in repairs during
marriage ..

12

21

6

61 Whether given as a guarantee or as an actual payment.. 40

53 (See Appeal.)

(MONTHLY.)

THE LAW REPORTER:

BEING THE

New Series of the "Law Times" Reports,

COMMENCING WITH MICHAELMAS TERM, 1859.

LONDON: LAW TIMES OFFICE, 19, WELLINGTON STREET NORTH, STRAND, W.C.