Case for slander. The words charged to have been spoken by the defendant imputed that the plaintiff had stolen a brooch belonging to the defendant’s wife; and they were said to have been uttered in a discourse, &c., and in the hearing of one Jane Cole and divers, &c.
Pleas. 1. Not guilty. 2. A traverse of part of the inducement not material here.
On the trial before Parke, B., at the Hampshire summer assizes, 1838, it appeared that the plaintiff had called at the defendant’s house, and that soon afterwards the brooch was missed; that defendant then went to an inn, where the plaintiff was, and stated to her his suspicions, in the presence of a third person; and that the plaintiff, with her own concurrence, was afterwards searched by Jane Cole and another female, who were called in for the purpose and to whom the defendant at the time repeated the charge. The brooch was not found on the plaintiff, but was afterwards discovered to have been left by the defendant’s wife at another place. The defendant’s counsel first applied for a nonsuit, which the learned judge refused. The defendant’s counsel then, in his address to the jury, contended that the words were spoken without malice, under circumstances which privileged them. The learned judge told the jury that the verdict must be for the plaintiff, if they thought that the words imputed felony, for that it was clear they were not privileged. Verdict for the plaintiff.
In Michaelmas term, 1838, Erle obtained a rule for a new trial, on the ground of misdirection.
Crowder and Butt now showed cause.
Erle and Barstow, contra.[[482]]
Lord Denman, C. J. The question ought to have gone to the jury, whether this charge was made bona fide. Unless Toogood v. Spyring is to be overruled, it is clear that the judge was not warranted in withdrawing that question from their consideration.
Littledale, J. The jury were to say whether the defendant believed that the brooch was stolen by the plaintiff, and for that reason charged her with having stolen it, and whether his language was stronger than necessary, or whether the charge was made before more persons than was necessary. The law has been laid down so over and over again.
Coleridge, J. For the sake of public justice, charges and communications, which would otherwise be slanderous, are protected if bona fide made in the prosecution of an inquiry into a suspected crime. Then had not the defendant a right to make out that case? The facts were for the jury. It is argued that the charge ought to be true, or ought to be made only before an officer of justice. But the exigencies of society could never permit such a restriction. If I stop a party suspected, must not I say why I do so? Supposing it unjustifiable to search a person against his will, here the plaintiff agreed to be searched. The presence of other parties would not do away with the privilege. When the two females were desired to make the search, were they not to be told for what they were to look? The question was clearly for the jury.
Rule absolute.[[483]]