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Riggs v. Denniston.

tion. The law has an eye to the disclosure only as a witness, (a) and the libel pointed only to such disclosure. I therefore lay the fact of that part of the disclosrure out of view.

The other fact, that the plaintiff at the inquest, offered himself as a witness, in order to divulge the secret is objected to, as insufficiently alleged, because it is not averred that

(a) A counsel, attorney, or solicitor, shall not be required nor permitted to divulge any matter communicated to him in professional confidence, and this privilege is not that of the attorney, &c., but of the client. (Rhoades v. Se. lin, 4 Wash. C. C. 718. Heister v. Davis, 3 Yates, 4. Yordan v. Hess, 13 Johns. 492. Chirac v. Reinicker, 11 Wheat. 280. Parker v. Carter, 4 Munf. 273. Rogers v. Dire, Wright, 136. Crawford v. M*Kissack, 1 Por: ter, 433.) This privilege is not confined to facts disclosed in relation to suits actually peuding, but extends to all cases in which a counsel or attorney is applied to in the line of his prosession, whether such facts were communicated with an injunction of secresy, or for the purpose of asking advice, or other. wise. (Parker v. Carter, 5 Munf. 273.) In New Hampshire, the privilege of clients to have their communications to counsel kept secret, extends, not only to communications made to professional men, but to those made to any other person employed to manage a cause as counsel. (Bean v. Quimby. 5 N. Hamp 94. But see Parker v. Carter, 4 Munr. 273. See Grah. Prac. 3rd ed. vol. 1, p. 212.) See a full consideration of this question and numerous authorities in Messrs. Cow. & Hills' notes, p. 277, 278, 281, 282, 283; 2 Stark. Ev. ed. 1842, p. 319, et seq.; 1 Greenl. Ev. ed. 1842, p. 272, et seq. and note. “ This protection,” said Lord Ch. Brougham, “is not qualified by any refer. ence to proceedings pending, or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client, or on his account and for his benefit, in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behals, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers, in any court of law or equity, either as party or as witness. The foundation of this rule," he adds, " is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go ou without the aid of men skilled in jurisprudence, in the practice of the courts, and in those mat. ters affecting rights and obligations, which form the subject of all judicial pro. ceedings." (Greenough v. Gaskell, 1 Mylne and Keen, 102, 103, per Lord Brougham, Ch.)

Riggs v. Denniston.

he voluntarily offered himself, and whether voluntary or not, was traversable. A voluntary offer is here to be understood, and the meaning of the allegation is certain to a common intent, which is well enough in a plea. The plaintiff might have traversed the fact; and the defendant would have been bound, on the trial, to have shown the offer to have been vol. untary, for that is the gist of this part of the libel, and the intendment of the plea. This allegation in the plea can have on other reasonable intendment. It is the language of the libel itself, which is admitted to mean a voluntary offer, and, according to the just observation of Lord Ch. J. De Grey, (Cowp. 687,) a man cannot defame in one sənse, and defend himself in another.

But the fact which the plaintiff offered to divulge, does not amount 10 a justification of the libel. What the law understands by secrets between the attorney and his client, are communications made, as instructions, for conducting the cause, and not any extraneous or impertinent communications; (4 'Term Rep. 432,) and it does not appear that the fact in question had any pertinency to the merits of the cause in which the plaintiff was employed. Whether Ingraham had or had not concealed himself to avoid the process, could not be any matter of instruction in the defence.

It had no relation to it, and was, as Lord Kenyon observes, (4 Term Rep. 432,) a mere gratis dictum, which the plaintiff was under no obligation to keep secret, in his character as counsel. At any rate, it was incumbent on the defendant to have *stated, that the fact cominunicated had [*204] connection with the instructions for a defence, and so have given the plaintiff an opportunity to traverse that allegation. The plea, therefore, as far as it justifies the likel upon the plaintiff as a counsellor, is bad.

Another part of the libel charges the plaintiff with hay. ing wilsully and knowingly perverted the law, while acting as commissioner of bankrupts, for illegal and oppressive purposes. The facts stated in the plea, by way of justification of these charges, are, that the plaintiff, as commissioner, sep

Riggs v. Denniston.

arately examined Napthali Judah, and required his answers, without giving him a reasonable time to make correct ones; that the plaintiff, without assigning any reason, refused to certify as commissioner in the cases of Napthali Judah and John Blagge; and that he examined, as commissioner, Judah, Blagge and Ingraham, touching transactions that happened many years before the bankrupt act was passed, and because they could not answer, refused them their certificates. My opinion, on these facts, is, that neither of them amounts in law, to a justification, because neither of them import, with certainty, even to a common intent, that the plaintiff wilfully perverted the law, for illegal and oppressive purposes. They may all be true, and yet consist with rectitude of intention.

The examination of Judah, in the absence of the other commissioners, may have been legal, for what appears to the contrary. If the bankrupt be in execution, or cannot be brought before the cominissioners, (which might have been the case here,) any one of them may attend and take his discovery; (Laws of U. S. vol. 5, p. 60,) and what amounted to reasonable time to give a correct answer, was matter of opinion. There is nothing in this transaction, that by a common intent, implies, or that is averred to mean, depravity of heart, and in that consisted the essence of the libel.

The same remark applies, and with stronger force, [*205) to the other fact *of withholding the certificates.

The plea does not meet and justify the charges. It is substantially defective.

There are other charges in the libel which the plea has not attempted to answer or justify, and which charges were clearly libellous, because they threw contumely and odium upon the plaintiff, in his character as commissioner. These charges represented him as a misanthropist, a violent partizan, as stripping unfortunate debtors of every cent, of being gratified in their distresses, &c. It is unnecessary, at present, to examine the question, whether the law will allow of a justification of such charges, which do not fix upon the party

Riggs v. Denniston.

any indictable offence. It is sufficient to observe, that in respect to the pleas now in question, no justification is set up in answer to them, and as the plea does not, therefore, either by denying or jnstifying, meet the whole matter or gravamen contained in the count, it is for that reason also bad. (2 Vent. 193. Cro. Jac. 27. Cro. Eliz, 434.)

I have confined myself hitherto to the first plea, but the second and third pleas being to the same effect, the same remarks will apply to them. The fourth plea contains only a general allegation that the words in the libel were true. If those charges in the libel, such as misanthropy, &c. to which no justification is set up, be capable of being justified, (and on which point we give no opinion,) this general allegation is sufficient, because such a character as the libel bestows upon the plaintiff, is not formed by one specific act, but by habitual conduct. However, as to other parts of the libel, the plea is too general and vague. It ought to have stated the precise facts which were to justify the charges, so that the plaintiff might have an opportunity of denying them.

Upon the whole, we are of opinion, that all the pleas are bad, and that judgment ought to be for the plaintiff.

Judgment for the plaintiff.(a)(b)

(a) [Old note.] In Augusi, 1802, a jury of inquiry assessed the damages of the plaintiff at 500 dollars.

(6) In Dexter v. Spear, (4 Mason, 115,) a libel is defined to be any publication, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred, or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society, is a libel. In Steele v. Southwick, (9 Johnson, 214,) a libel is said to be a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent, towards government, magistrates, or individuals. In Commonwealth v. Clapp, (4 Massachusetts, 163, 168,) it is called a malicious publication expressed either in printing or writing, or by signs and pictures, tendo ing either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule. And in State v. Farley, (4 M'Cord, 317,) a libel is a censorious or ridiculing writing, pic. ture, or sign, made with a mischievous and malicious intent. And in the

same case it is decided that nothing but that which is criminal, immoral, or ridiculous, can be libellous, and it is incumbent on the prosecution to stamp

Vol. III.

34

Riggs v. Denniston.

that character on the transaction. Thus a publication which assails the integrity or capacity of a judge, is actionable. Robbins v. Treadway, (2 J. J. Marsh. 510.) And on a publication, ironically charging the plaintiff with inranily, is libellous, as holding up the plaintiff in a ridiculous point of light. (Southwick v. Slerens, 10 Johns. 443) And it is libellous to publish a correct account of judicial proceedings, is accompanied with comments and insinuations tending to asperse a man's character. (Commonwealth v. Blanding, 3 Pick. 304. (Thomas v. Croswell, 7 Johns. 264.) So it is a libel to publish in writing of a man, that he has put in circulation a salse, scandalous, and scurrilous report. (Colby v. Reynolds, 6 Verm. 489.) And where a resolution was adopted by a county medical society, in New York, and entered among their proceedings, expelling a member, on the ground that he did not possess the requisite qualifications, and obtained his admission by false pretences, it was held, that the resolution was a libel, their doings in such a case being without their jurisdiction, and ihat the inember introducing the resolution was liable to an action. (Fawcett v. Charles, 13 Wend. 473.) And a publication, stating that the plaintiff is about to commence a suit for libel, but that he will not like to bring it to trial in a particular county, " because he is known there," is libellous. (Cooper v. Greeley, 1 Denio, 347.) Such a publication amounts to a charge that the plaintiff is in bad repute in the county referred to, and for that reason would not like to bring the suit to trial in that county. (ib.)

The books are full of cases upon this subject, confirmatory of the principlo of Riggs v. Denniston; White v. Nichols, 3 Howard, U. S. 266. Torrance v. Hurd, Walker, 403 ; Newbraugh v. Curry, Wright, 47; Howard v. Thomp.

21 Wendell, 319 ; Schenck v. Schenck, Spencer, 208; Woodburn v. Mil-. ler, Cheves, 194 ; Hillhouse v. Dunning, 6 Connecticut, 391; U. S. Dig. tit. Libel, I ; id. Suppl. tit. Libel, I ; Starkie on Slander, Am. ed. 1843, vol. 1, p. 132. 4 Phill. Ev. Cowen & Hills, ed. 236, et seq. 2 Starkie Ev. ed. 1842,617, et seq. 3 Steph. N. P. 2221, el seq. 2 Wheaton's Selwyn, ed. 1848, p. 1061, et seq. 2 Greenleafʼs Ev. p. 330, $ 410, et seq.

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