Gilbert v. People , 1 Denio 41 ( 1845 )

By the Court, Beardsley, J.

Whatever may be sa'd or written by a party to a judicial proceeding, or by his attorney, solicitor or counsel therein, if pertinent and material to the matter in controversy, is privileged, and consequently lays no foundation for a private action or a public prosecution. The general language of elementary writers is, that whatever occurs in the regular course of justice is privileged, (Hawk. P. C., B. 1, ch. 73, § 8; 3 Chit. Cr. Law, 869; 1 Saund. 131 (1.); 1 Russ. on Crimes, 307; Bac. Abr. Libel, A. 4;) and by which they intend to indicate the principle I have stated. If what is said or written is pertinent and material to the controversy, the protection to parties and those who represent them, (for all stand on the same ground,) is absolute and unqualified, and no one shall be permitted to allege that it was done with malice. But this is the extent of the privilege; for if a party or his agent will pass Beyond the prescribed limit to asperse and vilify another, by word or writing, he is without protection, and, as in other cases, must abide the consequences of his own misconduct. If slanderous words are used, he is a slanderer; and if he offends.in writing, he is a libeller, and may be prosecuted both civilly and criminally as such. (Hastings v. Lusk, 22 Wend. 410 ; Hodgson v. Scarlet, 1 Barn. & Ald. 232 ; Ring v. Wheeler, 7 Conn. R. 725; See also Thorn v. Blanchard, 5 John. R. 508.)

This being the principle which must govern all cases of this character, it is only necessary to see how it applies to the one now before us. The alleged libellous matter was part of a declaration in a justice’s court, which was prepared and presented to the justice by the plaintiff in error, who acted on that occasion as counsel for the plaintiffs in the cause. The action was trespass, for entering the close of the plaintiffs and taking and killing divers sheep, and for other alleged injuries to sheep, wool, sheepskins and mutton. Supposing the declaration in stating these grievances to be free from objection, it still had other statements and insinuations which could not but have been intended to stir up the passions of the defendant in that suit, and to make him an object of dark suspicion as well as‘of ridicule and contempt. The declaration alleged that the defendant was “ reported to be fond of sheep, bucks and ewes, and of wool, mutton and lambs,” and “ in the habit of biting sheepand it was added that if guilty he “ ought to be hanged or shot.” These and other suggestions of the like character, to be found in this declaration, were in no respect relevant or material to the action, and obviously must have been thrown in to scandalize and annoy the defendant. What had the court to do with these alleged “ reports” and “habits?” Certainly nothing. They could have no possible bearing on the issue to be tried, or the damages which might be assessed for the alleged trespass, although they might very well serve to irritate and disgrace the party who was charged to be the subject of such reports and habits. It would be lamentable if irrelevant, gratuitous and malicious attacks could be excused, because inserted in a declaration upon other and distinct causes of action, and with which the vituperative charges had no connection whatever. The demurrer admits . that these charges and insinuations were false and malicious, and as they were in no sense pertinent to the action, they were libellous.

The judgment should be affirmed.