743] irreconcilably *contradicted by that of Mr. P shall not, with the Lords Justices, for I do not t essential to the case, consider the comparative I credibility of those gentlemen. I should be unwil impute to either a wilful indifference to the truth; b seems to me, for reasons I indicated in the course of gument, a preponderating probability in the testin Mr. Potts, which casts on the appellant, with whom onus of establishing the fact of notice, the necessity ducing very strong evidence indeed to incline the 1 in favor of Mr. Jones. In my opinion he has wholly to furnish such evidence. The documents on which lies do not appear to me to aid Jones's testimony, if t not rather tend to confirm the testimony on the othe we have therefore nothing but oath against oath high probability on the one side and utter improb on the other. In that state of circumstances your ships will be slow to hold that there is satisfactory of the alleged notice, and, failing such proof, the ap cannot prevail, and the judgment of the Lords Justice be affirmed.

LORD SELBORNE: My Lords, I entirely agree. It in my opinion, be most dangerous to throw the sli doubt upon the power of a devisee and executor, st John Jones was, under his father's will, to make a goo to a mortgage as against the creditors of the testat such a deed as that of the 8th of March, 1858. In s ing, I assume, of course, that the mortgagee has no of any fraud, or breach of duty, on the part of the d and executor in the transaction. Such notice, if al ought to be clearly proved. In this case I think there evidence whatever of notice except the statements of Jones, contradicted in all material points by Mr. 1 whose testimony I believe.

Decree appealed from affirmed, and a dismissed with costs.

Lords' Journals, 22d June, 18

Solicitors for the appellant: Miller & Smith.
Solicitor for the respondent: W. Lane.

See notes 13 Eng. Rep., 595; 6 Eng. Rep., 168.

Dawkins v. Lord Rokeby.

1875

[Law Reports, 7 House of Lords, 744.]

June 28, 1875.

*WILLIAM GREGORY DAWKINS, Plaintiff in Error; [744 and THE RIGHT HON. HENRY LORD ROKEBY, Defendant in Error (').

Military Court of Inquiry—Defamatory Statements by a Witness—Action in respect of.

No action will lie against a witness for what he says or writes when giving evidence before a court of justice. The rule is founded on principles of public policy. The same principle applies where a military man is bound to appear and give evidence before a military Court of Inquiry.

Where, therefore, a general in the army was called before a Court of Inquiry, assembled under the order of the General Commanding-in-Chief, to inquire into the conduct of a particular officer, made statements in evidence, and, after the close of his evidence, handed in a written paper (not called for by the court, but having reference to the subject of the inquiry) as to the conduct of that officer, and an action was brought in respect of those statements, which were alleged to be untrue and to be malicious:

Held, that evidence of their falsehood and malice was immaterial and irrelevant, and that being statements made by a military man in the course of a military inquiry, in relation to the conduct of a military officer, and with reference to the subject of that inquiry, they were privileged.

A military Court of Inquiry may not be strictly a judicial tribunal, but where such court has been assembled under the orders of the General Commanding-inChief in conformity with the Queen's Rugulations for the government of the army, a witness who gives evidence thereat stands in the same situation as a witness giving evidence before a judicial tribunal.

THE plaintiff in this case was a lieutenant-colonel in the army, and held a commission in the Coldstream Guards, the defendant was a lieutenant-general in the army, and commanded a brigade of which the Coldstream Guards formed part. On the 3d of February, 1865, His Royal Highness the Duke of Cambridge, then the General Commanding-inChief, directed that a Court of Inquiry should be held to inquire into certain matters set forth in a letter written under His Royal Highness's authority by Sir James Yorke Scarlett, holding the office of Adjutant-General of the Forces. The letter was addressed to Major-General Lord Frederick Paulet, C.B., and directed him to "cause Colonel De Bathe, C.B. (Scots Fusilier Guards), Colonel H. S. H. Prince Edward of Saxe *Weimar, C.B. (Grenadier Guards), [745 Colonel Stephenson, C.B. (Scots Fusilier Guards), and Colonel Wynyard (Grenadier Guards), to be detailed as members of a Court of Inquiry to be assembled under the presidency of General Sir Alexander Woodford, G.C.B." On the 4th of February Sir James Yorke Scarlett, under (1) Affirming 5 Eng. Rep., 212.

the same authority, wrote to General Woodford informing him that he had been constituted the president of the court. The object of its assembling was thus stated, in accordance with the requirements of the Queen's Regulations ('): "The subject which will be submitted for your investigation arises out of an assertion, frequently repeated and insisted on, by Lieutenant-Colonel Dawkins, that certain officers under whose command he has at various times been placed have made false statements of facts to his injury. Repudiating the interpretation which His Royal Highness was willing to place on these words, viz., "That Lieutenant-Colonel Dawkins alluded to opinions and conclusions on the part of those officers with which, being unfavorable to himself, he did not coincide,' this officer has insisted on giving the more offensive interpretation to his words." The letter then went on to say that in justice to the officers who, "in the exercise of their command," had found fault with LieutenantColonel Dawkins, it was necessary to ascertain whether he could substantiate his charges against them. The court was therefore directed to give its "opinion as to the validity of the charges in the sense in which Lieutenant-Colonel Dawkins presses them against his superior officers, and also its opinion upon Lieutenant-Colonel Dawkins' conduct generally, as evinced by the correspondence submitted, and to state how far the service will be benefited, or the contrary, by placing Lieutenant-Colonel Dawkins in command of a battalion of guards when the occasion presents itself."

The Court of Inquiry met on the 10th of February and held several sittings, of which the last was on the 29th of March.

On the 14th of February (as alleged in the bill of exceptions) "The defendant then being and having been such officer as aforesaid was required to, and did appear before the said Court of Inquiry to be examined before the said 746] court touching the matters *so referred and submitted to the said court as aforesaid, and was examined by the said plaintiff and by the said court respectively touching the matters so referred and submitted as aforesaid." The defendant made certain statements, the making of which was thus set forth in the bill of exceptions.

"And afterwards, and after the close of his examination before the court, and without any request by the court, or by the plaintiff, or by any person, to him so to do, handed

(1) See the parts of the Regulations kins v. Lord Rokeby, Law Rep., 8 Q. B., naterial to this case in the report, Daw. at p. 257.

in to the said court a written paper, containing the words complained of.

The plaintiff applied for a court martial on the defendant for his conduct towards the plaintiff in making these representations; but the court martial was refused, and the plaintiff then brought an action for libel in the Court of Queen's Bench to recover damages for the alleged defamation. The defendant pleaded not guilty. The cause was tried before Mr. Justice Blackburn, when, on the part of the plaintiff, evidence was offered, in support of the allegations in the declaration, that the statements verbal and written were made mala fide and with actual malice, and without any reasonable or probable cause, and with a knowledge on the part of the defendant that they were respectively false. It was objected on the part of the defendant that even if such evidence could be received, and had been given, the action would not under the circumstances which existed here be maintainable. Mr. Justice Blackburn held that the evidence tendered was immaterial and irrelevant, and that, as a matter of law, the action would not lie if the verbal and written statements were made by the defendant, being a military man, in the course of a military inquiry, in reference to the conduct of the plaintiff being a military man and with reference to the subject of that inquiry, even though the defendant should prove that the plaintiff had acted mala fide and with actual malice, and without any reasonable or probable cause, and with a knowledge that the statements so made and handed in by him were false; and his Lordship so directed the jury, and under his direction a verdict was found for the defendant.

A bill of exceptions having been tendered, the case was heard in the Exchequer Chamber, where judgment was delivered on the *1st of February, 1873, by Lord Chief Baron [747 Kelly, in the name of himself and the other judges, and the judgment of the court below was affirmed ('). This proceeding in error was then brought.

The judges were summoned, and Lord Chief Baron Kelly, Mr. Justice Mellor, Mr. Justice Brett, Mr. Justice Grove, and Mr. Baron Pollock, attended.

Mr. H. Matthews, Q.C., and Mr. Holl, for the appellant: It is admitted that what is said by a judge or a counsel in the discharge of duty in a judicial proceeding cannot be made the subject of an action for defamation. It is privileged: .: Floyd v. Barker ('); Damport v. Sympson (3); Jekyll (3) Cro. Eliz., 520.

(1) Law Rep., 8 Q. B., 255.

(*) 12 Co. Rep., 23.

14 ENG. REP.

17

v. Moore ('); Scott v. Stansfield ('); Hodgson v. Scar But those decisions do not establish the doctrine cont for in this case. Here the Court of Exchequer Ch strained the principle of protection much too far by e ing it not merey to military tribunals, properly so but to meetings of military men in what were really i gating committees, having nothing whatever of a ju character about them. The court below seemed to that where there was even the pretence of the exerc military authority the man injured by a false and mal slander had no right to civil redress against the ma had injured him. The cases of Grant v. Shard (), F Ogle (), Moore v. Bastard (), and Reynolds v. Kenn (the last a case under the revenue laws), show that w jurisdiction exists, even if the exercise of that jurisd is in the particular case unwarranted, no action f exercise of it or putting it in motion will lie. In all cases the act done was of a judicial kind, and the ju tion was a known and established jurisdiction. In n respect can that be said here: Simmonds on Courts 748] tial("). A court of military inquiry is not in respect a judicial court (). Not one of the requisites court belongs to it. It is not a court, established by nor recognized in the Mutiny Acts; the persons who a make the inquiry have no judicial character or office; have no settled legal jurisdiction; they are only pe nominated for the time being, who may never before exercised any judicial functions, who may never aga called on to do so, and who really have not any ju functions to exercise, for they decide nothing, and can report their opinion to the authority which calls together, and which may altogether disregard their fir and contradict their recommendations. They have no e lished forms of procedure; they cannot administer an they cannot compel the attendance of any but military and that only in virtue of military obedience to the mander-in-Chief; they cannot give a judgment and ent upon record; and, in fact, they are a mere assembl officers without a recognized legal status and without

(1) 2 N. R., 341.

(9) Law Rep., 3 Ex., 220.

() 1 B. & Ald., 232.

(4) Cited (in Warden v. Bailey) 4 TaunLon, 85.

(5) Ibid., 87.

(6) Ibid., 70.

(8) Ch. ix. See also Prenderg "The Law relating to Officers Army."

(9) The Queen's Regulations, Law Rep., 8 Q. B., 257: "A court quiry is not to be considered in an as a judicial body."

(7) 1 Wils., 232.