
    
      STACKPOLE vs. HENNEN.
    
    Appeal from the court of the parish and city of New-Orleans. .
    ^speaking maliciously 0"a cause!
    Counsel are responsible for statements made by them, if they are Pertinent to the ^3ce¿adnd
    dient'ifpre-wordTare16 spoken, he will be pre-have author-ised them.
   Porter, J.

delivered the opinion of the mi • i i. i /• court. This cause has called for great .. . tion and reflexion on the part of the court, not r from the magnitude of the matter in dispute in a 0 r \ ' pecuniary pointof view,nor fromits importance to either of the parties, but from the great rest the public, and the profession of the law have in a correct decision of the legal.princi- , . pies It involves.

It is an action brought against the defendant, for having, on the trial of a cause where he was of counsel, charged the plaintiff who was examined as a witness, with being guilty of perjury, and of having come there with an intention of peijuring himself The petition alleges the words to have been spoken falsely and maliciously, and with the intention of injuring the plaintiff

The answer, after a general denial, avers, that the words were used in reply to observations, or questions, put to the defendant by the judge of the court while the defendant was acting as attorney and counsel. That in this ea-oacitv he was authorised to speak them, he-^ J * lieving as he then did, the ease might justify the words spoken, and that they were necessa- ' ry in the defence. That he was not actuated by any malice against the plaintiff

The cause was submitted to a jury in the court of the first instance, who found a verdic* in favor of the plaintiff, and assessed his damages at $500. No motion was made for a new trial, and the court having rendered judgment conformably to the finding of the jury: the defendant appealed.

The effect which should be given to this verdict in the appellate court has been much controverted in the argument. This tribunal it is true is not like those courts of error at common law, where questions of fact cannot be examined and finally decided on. By the law organizing the supreme court of this state, the power is conferred on it to enquire into the correctness of the judgment below, both as it relates to law and facts, and to reverse and affirm it as the case may be. The conferring this power, as counsel correctly argued, supposed on the part of those by whom it was granted, that it would be exercised, and we have certainly-no more authority for declining t® reverse a judgment where there is error in fact, than we would have where the mistake pro-' ceeds from an improper application of the law* - . -i. Butin the exercise of this power, it has been a matter of great solicitude with the members of Ais court, so to use it, as to carry into effect the object the legislature had in view when they conferred it. In their deliberations on this matter, they have been deeply impressed with the conviction, that with a few exceptions arising out of party violence, or prejudice; the facts óf a cause are in general better tried, and more correctly understood the nearer the investigation is carried on to the parties: and that at each remove from this vicinage, what is gained in the ascent to a higher tribunal, in its superior knowledge and freedom from extrañe* ous influence, is more than counterbalanced in the intimate knowledge possessed by the lower court, and above all by the jury, of the character and conduct of the parties and witnesses. Hence a rule has been established in this tribunal and acted on'fbr some years, not to refuse reversing a judgment where there is error'in fact, but never to reverse it'unless the error is so manifest, that the verdict cannot be accounted for by any of these presumptions of greater advantages in the investigation to which we have just attended. This doctrine has re* ceived a more frequent application to cases' where the truth depended on the weight to be attached to conflicting testimony, where fraud was at issue—or damages were to be assessed, than any others, because we have felt, that the species of knowledge which juries possess, is peculiarly adapted to aid the reaching a correct conclusion in causes ol this description: and that every difference of opinion on our part, would not authorise a reversal, when that difference perhaps proceeded from wanting the advantages in the investigation the lower tribunal enjoyed.

But even in cases sueh as those stated, if matters of law are presented on the record which notwithstanding the evidence, shews the judgment to be erroneous; the verdict of the jury presents no obstacle to the reversal. The influence given to the finding, necessarily yields to the superior control which the law exercises over the case, when the conclusion drawn from the facts is contrary to that which the law sanctions.

With this explanation of the power we possess, and the principles which govern us in the exercise of it, we proceed to state; that it appears from the evidence given on the trial be-W, that the defendant on cross examining the plaintiffwho was a witness in the case of Millar vs. Morgan, was asked by the judge what object he had in view in putting certain questions. His answer was, I wish to shew the witness is perjured, and that he came here to perjure himself. There is some contradiction in the testimony as to the answer of the plaintiff, which elicited these remarks from the defendant. But taking it in the most favourable point of view for the latter, we think the observation was rash and unnecessarily severe. «The error of the witness was evidently unintentional, and a question by way of explanation would have enabled him to correct the mistake. It is now admitted on the record, that the plaintiff is a man of truth and fair character. It also appears the plaintiff was an entire stranger to the defendant at the time the words were spoken.

The question of law is one of considerable difficulty, and our jusisprudence and laws are by no means so full and explicit on the subject as could be desired. In Rome, while a generous freedom was inculcated on counsel in advocating the causes of their clients, the prohi-was express against profiting bv this li-5 r a r a j berty, to speak untruths and utter slander. Spain in her written laws, has repeated nearly verbatim the restraints imposed by the imperial code. But we find nothing in either the one or the other system which enables us to ascertain the extent to which counsel might carry their observations; what were the presumptions attached to their acts, or how far they were protected by them when called to answer for an alleged violation of the rights of others. The prohibition, however, contained in these codes, establishes very clearly the existence of certain limits which could not be passed; a prohibition which we may remark must be supposed to exist in every civilized, and more particularly in every free country, independent of positive authority. The proposition, that any class of men under the pretence of aiding in the administration of justice, could say what thay pleased of every individual who was a witness or a party, without incurring responsibility, is too revolting to require refutation. Equally unfounded do we consider a ground assumed in the defence of the present case, that counsel is not responsible even for speaking maliciously, if the matter was spoken during the trial, and relative to the cause in hand,

It can never be a correct discharge of duty ® to clients to act maliciously to others. The ... ... . . » privileges which counsel enjoy, are given for the benefit of society, and not to enable them to indulge angry passions with impunity.

It is difficult to draw the line in such a manner as that, on pne side will be found the rights of parties to have every thing pertinent in de-fence of their cause told;—motives arraigned; —conduct scrutinized, and that freedom of discussion which is so necessary to the discovery of truthand on the other side, that protection from calumny and Unfounded invective, which honest men have a right to expect, while standing before a Court ofjustice as witnesses or parties. The best rule is, we think, to protect counsel for every thing they say which is pertinent to the cause, if they are instructed by their clients to say it; and to hold them responsible for every thing that is impertinent to the case, whether they are instructed or not The last part of this rule is obviously just. The great latitude which the law allows in discussion, has for its object the discovery of truth in the matters at issue, and that object can never be promoted by invective foreign to the subject under lamination. The first part of the rale we think equally sustainable on principles J of utility. The protection accorded by it, does not pjace suitors an(j witnesses at the mercy of tyie‘r a<jversaries and counsel. It only fixes the responsibility on the client instead of the advocate. Counsel are bound to believe the information communicated to them by those whose interests they advocate. Parties have a right to present their case through their agents to the tribunal that tries it in such man* ner as to them may seem meet; and it would be a great impediment to the free and efficient administration of justice, if the attorney was obliged to make every statement the cause might require orkhis own responsibility. It is no doubt desirable that investigations in courts should be conducted with all the circumspection and delicacy which characterize the intercourse of social life. But this in too many instances would be inconsistent with the rigorous obligations imposed on those who administer justice. A great deal of litigation is produced by the knavery of men; hence the necessity of free and bold examination; vice frequently requires to be stripped of the mantle in which hynocrisy and cunning envelope it, and laid open to the anhnaa version of justice, and the indignation óf mankind. But these impor- ' ° ' .: r tant objects could not be accomplished, if the ministers whom the law authorises parties to employ, were not protected in the discharge of their duty. In England the privileges of counsel extend as far as the rule just recognized will permit them to go in this country. In France the same limits are assigned, with this sole difference, that there,by positive legislation, of a very recent date, the instructions must be in writing. Blackstone's com. vol. 3, 29. Martin’s Rep. de jures, vol. 1, p. 464.

The jury in the case before us, have found a verdict against the defendant, and it must be enforced unless the law which governs the ease shews their finding to have been contrary to the conclusions which it authorises on the evidence adduced on the trial.

The defendant contends it does, because the words spoken by him were pertinent to the cause in hand; and being so, must, in the absence of proof to the contrary, be presumed to have been spoken under instructions from his client.

On the first branch of this subject, it has been contended by the counsel for the plaintiff, that the finding of the jury has established, the words spoken were not pertinent to the easer . and that the court is concluded by the verdict. To this position we can by no means assent rpjjg relevancy of observations made in the progress of a cause is a matter of law not of feet. The words spoken were in answer to a-question by the judge. They were pertinent therefore as to time: so they were as to matter, for it can never be impertinent to a case to shew that one of the witnesses brought in to establish the adversary’s case is perjured.

On the-second branch, the defendant has relied on the presumption that counsellors at law acting as the agents of others, must be supposed to follow the instructions they have received, and he has quoted a case of ancient date from the English books, where it was decided, that if an advocate should speak slanderous words, it would be intended he spoke according to his instructions. 6 Bac. ab. 225, Styles Rep. 462

. It is somewhat difficult to say whether such be still the rule in that country. The elementary writers are silent respecting it, and the late decision on this subject by the court of King’s Bench, does not directly decide the point, tho’ the reasoning of some of the judges would induce us to presume, they thought the doctrine correct, for they seemed to think it necessary J _ express malice should be shewn. Black Com. vol. 3, 29. Starkie on slander, 207.1 Barnwall vs Alderson, 232.

However the rule may be in cases where the client is not present when the words complain-* ed of are spoken, we think such is the presump-ion of our law when as in the present instance-,ie attended on the trial of the case, was present when the slanderous words were uttered^ and did not disavow them. Nay more, that under such circumstances, the client is responsible whether the injury inflicted was the result of previous instruction or not. This principle can be traced to the fountain head of our jurisprudence, and its correctness is recognized by one of the most modern and eminent writers of a country whose laws háve the same source as our own. There is a forma! text of the Roman code, which declares, that the allegations made by lawyers in the presence o^ those they are acting for, are considered as if made by the parties themselves. The 8 law Of the 6 title, of the third Partidas is still more positive, and states,11 ca toda cosa que el ábo-gado dixere\n juicio, estando delante aquel a quien pertenece el pleyío, si lo non contra- dixesse, entendióla tanto vale, e asi deve ser , . cabida como si la dizessepor su boca misma ^ smor ¿ei pigyfo” Merlin in his reper-f0-re ¿fe jurisprudence ⅛ treating of the responsibility of counsel for slanderous words, observes, “Lorsqu’un avocat sort de lui mente des bornes que lui sont prescritos, ilpeutetre desavoue. Mais ilfaut que ce desaveu se for-me verbalment sur le champ par la partie, ou par le procureur qui sont censes presens a Vaudience sans quoi il est presume n'avoir ríen avance que de leur aveu. Merlin's rep de juris, vol. 1 p. 464. Code Liv. 2, tit. 10, L. 1 & 3.

With these laws and principles controlling and guiding us, we cannot refuse to the defen” dant the benefit of the presumption he invokes. We think it clearly results from them in the first place, that the advocate is presumed to have spoken after the instructions of his client^ because his client by his silence gives his assent to what has been said, and second, that the latter is responsible whether he has so instructed him or not, because he makes the injury his own by ratifying what his agent does. Nor can we dismiss the case without stating at the same time our entire approbation of the - wisdom and utility of such a rule. Where ex- ' . ■ " press malice is not shewn on the part of the at- , , » , , . torney, it can hardly be supposed he is actúa- . ted by motives other than those of advancing the interests of his clients. If the latter who is to he benefited by these observations, stands by and acquiesces in them, and is willing to take all the advantages, which the zeal and warmth of his advocate whether justifiable or not, can bestow, it is but strict justice he should be equally responsible for the injury. Qui sen-tit commodum, debet sentiré et onus.

Livermore for the plaintiff, Mazereau for the defendant.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be annulled, avoided, and reversed; and it is further ordered, adjudged and decreed, that there be judgment against the plaintiff as in case of nonsuit, with costs in both cases.  