burrow Astley bart versus young esquire Tuesday that June for libellous word  contain in a affidavit produce in a court of justice on a defence against a  charge no action lie and see Bosanq Tr g Rotlo see Dawkins v Rokeby lr Q b lr  h l seaman v Netherclift c p d c p d this be a action upon the case for speak  and publish defamatory false malicious and libellous word of and concern the  plaintiff sir John Astley the plaintiff after premise as usual the innocence  and integrity of his character good manner c set out in his declaration that  the defendant be one of the justice of peace for the county of wilts and have  refuse to grant a licence to one Henry day for keep of a public inn and  alehouse in everly in the county of wilts aforesaid application be make to  this court concern the say refusal and on that application sir John Astley the  plaintiff make a affidavit in write and upon oath which be produce and read  before the say court of certain matter and thing relate to the say refusal and  allege that he have swear the same with great truth and veracity that the  defendant malicious intend to scandalize sir John c on the first of September  at the city of London in a certain discourse with diverse subject of this  realm concern the say sir John and his affidavit aforesaid false and malicious  speak and publish to those subject the follow false defamatory and malicious  word videlicet sir John Astley in his affidavit bath swear false and I have  prove to the court the contrary of what sir John bath swear sir John bath a  great estate but I will not for his whole estate have swear as he do and in  another discourse on the same day c with diverse other subject the defendant  malicious intend as aforesaid malicious and false c publish the follow word  videlicet sir John be forswear meaning that the say sir John Astley have be  guilty of perjury whereas in truth and in fact he the say sir king v ld  miscount mane hill g b r v ante here the word be lie in several different  manner as to the phrase and expression but without any material difference of  import as sir I a bath swear false sir John bath a great estate but for his  whole estate will not have swear as he bath do again sir I a in his affidavit  bath swear false and burrow er p John have not in his say affidavit nor in a  part thereof swear false nor ever be guilty of any perjury whatsoever by  reason of which say malicious false and scandalous word c he the say sir I a  have be grievous injure c then the declaration proceed to this effect  videlicet burrow and whereas while the aforesaid application to the court of  our say lord the king before the king himself concern the say refusal of  thesaid Edward young to grant a licence be depend in the say court and before  the publication of the libel herein after mention to wit c the say sir John  have make and exhibit his affidavit as aforesaid and be swear to it c  nevertheless the defendant well know the premise but again contrive and  malicious intend to vilify and asperse the reputation and character of the say  sir John and to bring he into very great infamy and disgrace afterward  videlicet on that January do wicked and malicious make exhibit and publish to  the same court of our lord the king before the king himself a certain  malicious false and scandalous libel contain in a certain affidavit in write  of he the say Edward concern among other thing the say sir John Astley and his  affidavit aforesaid in which affidavit of the say Edward young there be and be  contain among other thing certain false malicious and scandalous matter  concern the say sir John ante his aforesaid affidavit accord to the tenor  follow videlicet and moreover he meaning the say Edward young shall have think  himself deserve of all which sir John Astley have so false swear against he if  the fear of any power upon earth can have move he to act judicial against his  judgement as by the say affidavit of the say Edward remain affiled of record  in the say court c more full appear whereas in truth and in fact he the say  sir John Astley do not in or by his say affidavit swear any thing false  against the say Edward nor ever be guilty of any perjury or false swear  whatsoever by reason of which make exhibit and publish of the say malicious  false and scandalous libel so publish by the say Edward young as aforesaid the  say sir John be very much injure in his character c to the damage of the say  sir John of and thereupon he bring his suit c the defendant have obtain leave  to plead double first plead not guilty to the whole declaration and issue be  join thereupon then for further plea to the second count the defendant set  forth the complaint make against he as above justify that he make such  affidavit as in the say second count be mention in his own defence against the  say complaint make to this court against he for his refusal to grant such  licence and in answer thereto burrow and to the say affidavit of the say sir  John so make to support corroborate and strengthen the same complaint as  aforesaid the plaintiff demurrer general to the defendant plea to the last  count and the defendant join in demurrer Mr serj Davy argue this demurrer for  the plaintiffThe plea he say be insufficient for it admit the charge of make  the affidavit malicious and with intent to asperse the character of sir John  Astley and the defendant justify it not as be true but only as be make in  answer to a complaint support by sir John affidavit but do not allege it to be  a necessary part of his defence and every thing must be take most strong  against the party plead therefore it must here c be take that it be not a  necessary part of his defence and this be a libel undoubted Lord Mansfield  show that a matter give in evidence in a court of justice may be prosecute in  a civil action as a libel the court indeed before which such evidence be give  may censure it serj DavyI will prove it first from authority dly from the  reason of the thing FirstHe cite as authority that as he say will prove it   b  pl Buckley v wood and hawk p c where Hawkins offer his own private opinion and  a very just and reasonable one I have prove to the court the contrary sir John  have a great estate but for his whole estate I will not have swear as he do  again sir I a have swear false and I have prove to the contrary last sir John  Astley be forswear say vide post burrow er p second it will be most high  inconvenient if it be otherwise for any man character may be cruel injure by  such a artifice as this and if he can not be protect by legal method he may as  in a state of nature be drive to revenge himself it be very seldom that the  court before who such a affidavit be wanton and malicious exhibit interfere by  their censure this be a absolute direct and unprovoke charge of perjury it be  a libel in the form of a affidavit recrimination do not at all serve to show  innocence this be not do to defend himself but to asperse sir John and the  plea be no answer to the matter charge in the declaration he be charge with  meaning and intend to accuse sir John of perjury and he do not deny it this be  a matter of fact which he ought to have answer burrow the plea admit that this  be a libel and the truth of a libel can not be justify Mr win contra be  beginning to argue the case on behalf of the defendant but Lord Mansfield tell  he it be unnecessary for he to speak to it as the matter be so plain here be a  charge against the defendant in a court of justice make upon oath and support  by a affidavit of sir I a and in the affidavit of the defendant in answer to  this complaint he mention the charge upon he and deny it with this conclusion  of call it what sir John Astley have so false swear against he now in every  dispute in a court of justice upon oath where one by affidavit charge a thing  and the other by affidavit deny it the case be ordinary much the same in  effect with the present and each party may bring a civil action against the  other for it often happen that the affidavit and evidence be in term direct  opposite to each other as to the authority cite the former be not applicable  to this case and the latter even lessen the authority of the former and though  there may be a good deal of sense perhaps in the opinion of Hawkins yet  neither of these two authority relate to give evidence nor to a court that  have jurisdiction and as to the reason of the thingThere can be no scandal if  the allegation be material and if it be not the court before who the indignity  be commit by immaterial scandal may order satisfaction and expunge it out of  the record if it be upon record this that be now under our consideration arise  upon the very point in question it be not a collateral recrimination and  nothing be more common than to use the word true upon these occasion videlicet  I as the adverse party have true swear which be much the same thing as the  expression here use which sir I a have so false swear against he in the case  of lake v king sand the matter charge as the foundation of that action which  be a action upon the case for print and publish a scandalous libel upon the  plaintiff be contain in a petition to a committee of parliament for grievance  exhibit in a court of justice it be agree that no action lie for exhibit the  petition which be lawful burrow although the matter contain in it be false and  scandalous because it be in a summary court of justice and before those who  have power to examine whether it be true or false and judgement be give for  the defendant upon this point that it be the order and course of proceed in  parliament to print and deliver copy c of which the court ought to take  judicial notice there be another case which be vast strong videlicet Ro Abr  title action sur case letter m pl in a action upon the case by a against b the  plaintiff declare that he take his oath in this court of b r against b of  certain matter to bind he b to his good behaviour and thereupon b then say  false and malicious intend to scandalize the plaintiff in the hear of the  justice and officer of the court and other there be there be not a word true  in that affidavit and I will prove it by forty witness it be hold that the  action be not maintainable for the answer which b make to the say affidavit be  a justification in law and speak only in defence of himself and that in a  legal and judicial way in as much as he say he will prove it by forty witness  as to the word that case be quite parallel to the present and they be only  speak in his own defence and by way of justification in law and in a legal and  judicial way in answer to a complaint make against he to the court so here the  burrow er p defendant affidavit be in defence to a complaint against he which  complaint be support by the affidavit of the present plaintiff sir John Astley  in answer to which affidavit of sir John the defendant make the affidavit  contain the word upon which the present action be ground this ought not to be  make a matter of question and we be all of we clear in the same opinion and if  the matter of fact be justify the epithet that the plaintiff have throw into  his declaration fall to the ground as to the word speak by the defendant out  of Courtthere be a plea of not guilty to that count so that that point be not  now before we this expression be take notice of by the court at the time when  the affidavit be read and disapprove of indeed as to the word false which be  think too rough and coarse a expression but yet be not judge to require a  formal censure from the court burrow Mr just denison concur with his lordship  and think the matter to be extreme plain as to the epithet and innuendo throw  into the declaration they be immaterial since the substantial fact itself be  justify for if the matter be not actionable the manner be of no consequence Mr  just foster concur Mr just Wilmot also concur and add that the case in Ro Abr  pi be in sir William Jones and in march pl and in sir William Jones the very  word false be make use of Le defendant wickedly dit and Ceo to be false  affidavit et and voilent jure all contrary per cur unanimous and clear  judgement for the defendant