1st. Not guilty; 2d. A justification of the truth of the words. The plaintiff had been a servant to the defendant. Upon a dispute taking place, he discharged her, and, some difference arising respecting the payment of her wages, he charged her with having attempted to cheat him respecting her wages, and used the words as laid; but the plaintiff failed in proving them to have been spoken at that time. Having, however, sent for a constable in order to take her into custody, he made use of the same words to the constable when he came, to whom he meant to have given her in charge, but which in fact he did not do. To prove the words, the plaintiff's counsel then called the constable. He proved the words spoken. But it further appeared, in the course of his evidence, that the words had been spoken by the defendant addressed to him in his character of constable, and in the course of the charge and complaint which the defendant made to him against the plaintiff. Lord ELDON, Chief Justice, said: . Words used in the course of legal or judicial proceeding, however hard they might bear on the party of whom they were used, were not such as would support an action for slander. In this case they were spoken by the defendant under a belief of the fact, and when he was about to proceed legally to punish it. It would be a matter of public inconvenience, and operate to deter persons from preferring their complaints against offenders, if words spoken in the course of their giving charge of them, or preferring their complaint, should be deemed actionable. The plaintiff should be called. Cockell, Serjt., and Espinasse, for the plaintiff. 997. GARN v. LOCKARD SUPREME COURT OF MICHIGAN. 1896 108 Mich. 196, 65 N. W. 764 ERROR to Circuit Court, Eaton County; CLEMENT SMITH, J. Action by Leah V. Garn against Arthur M. Lockard. There was a judgment for defendant, and plaintiff brings error. Reversed. Powers & Stine and Garry C. Fox, for appellant. Lyman H. McCall and McPeek & Jones, for appellee. MONTGOMERY, J. The plaintiff prosecuted defendant in an action of slander. The words complained of charged, in effect, that plaintiff was the keeper of a brothel, and are charged as having been uttered in the presence and hearing of Lewis Briggs and others. Substantially the language imputed to defendant was proven to have been used by him in the presence and hearing of Mr. Briggs, who testified that he heard a part of the conversation between Lockard and Pollock, in which the name of Mrs. Garn was mentioned, and stated that it was "on Sunday, right down in front of the post-office, and Herb Pollock and Os Pierce, and some one else, I think, was also there." The evidence shows that Mr. Pierce was at the time city marshal, and that, in the course of the conversation, defendant expressed a desire to have the marshal watch plaintiff's house, and secure evidence against her, and upbraided the officers for not doing their duty in suppressing such crimes in the city. The circuit judge was of the opinion that this statement was privileged, and that there was no proof of actual malice, and for these reasons directed a verdict for the defendant. There can be no doubt at this day that a communication made to a public officer whose duty it is to act in reference to the matter, if made bona fide and with the purpose of aiding in the detection or prosecution of offenses against the law, is privileged, in the absence of express malice. Wieman v. Mabee, 45 Mich. 484, 8 N. W. 71. And it is also true, as contended by defendant's counsel, that the question whether the occasion was privileged is for the Court. Bacon v. Railroad Co., 66 Mich. 166 [ante, No. 900]. It is likewise a recognized rule that the presence of disinterested persons at a time when a communication is made respecting a crime which one has a right to make does not ordinarily and per se operate to remove the privilege. Toogood v. Spyring [ante, No. 897]; Dunman v. Bigg, 1 Campb. 269, note; Brow v. Hathaway, 13 Allen, 242; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. But, when the occasion is such that an inference of malice may be drawn from the circumstances, it is the province of the jury to determine whether malice exists. . . . This statement should be taken subject to the qualification that, if upon the face of the publications there be no intrinsic evidence whatever of malice, the Court may determine this as a matter of law. Townshend, Slander and Libel, No. 288. But the circumstances of the publication in the present case are not such that we are able to say that there is no intrinsic evidence in the circumstances themselves from which a jury might draw an inference of malice. The publication was in a public place, in the presence of others than the officers. Under such circumstances it is generally held to be a question for the jury whether or not the defendant was actuated by malice. . . . Judgment will be reversed, and a new trial ordered. MCGRATH, C. J., took no part in the decision. The other justices concurred. SUB-TOPIC C. DEFAMATION DURING LITIGATION 998. CUTLER v. DIXON. (1584. 4 Co. Rep. 14.) It was adjudged that, if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behavior, in this case the party accused shall not have for any matter contained in such articles any action upon the case; for they have pursued the ordinary course of justice in such case; and, if actions should be permitted in such cases, those who have just cause of complaint would not dare to complain for fear of infinite vexation. 999. ASTLEY v. YOUNGE KING'S BENCH. 1759 2 Burr. 807 THIS was an action upon the case for speaking and publishing defamatory, false, malicious, and libelous words of and concerning the plaintiff, Sir John Astley. The plaintiff, after premising (as usual) the innocence and integrity of his character, good manners, etc., sets out in his declaration that the defendant, being one of the justices of peace for the county of Wilts, and having refused to grant a license to one Henry Day for the keeping of a public inn and ale-house in Everly in the county of Wilts aforesaid, application was made to this Court concerning the said refusal; and on that application Sir John Astley, the plaintiff, made an affidavit in writing and upon oath, which was produced and read before the said Court, of certain matters and things relating to the said refusal; and alleges that he had sworn the same with great truth and veracity. That the defendant . . . on the 24th of January, 1758, did wickedly and maliciously make, exhibit, and publish to the same Court of our Lord the King, before the King himself, a certain malicious, false, and scandalous libel contained in a certain affidavit in writing of him the said Edward, concerning (amongst other things) the said Sir John Astley and his affidavit aforesaid; in which affidavit of the said Edward Younge there were and are contained (amongst other things) certain false, malicious, and scandalous matters concerning the said Sir John and his aforesaid affidavit, according to the tenor following, viz.: "And moreover he" (meaning the said Edward Younge) "should have thought himself deserving of all which Sir John Astley hath so falsely sworn against him, if the fear of any power upon earth could have moved him to act judicially against his judgment.” And thereupon he brings his suit, etc. The defendant (having obtained leave to plead double) first pleads "not guilty" to the whole declaration, and issue is joined thereupon. Then, for further plea to the second count, the defendant, setting forth the complaint made against him, as above, justifies that he made such affidavit as in the said second count is mentioned, in his own defense against the said complaint made to this Court against him for his refusal to grant such license, and in answer thereto and to the said affidavit of the said Sir John so made to support, corroborate, and strengthen the same complaint as aforesaid. The plaintiff demurred generally to the defendant's plea to the last count, and the defendant joined in demurrer. Mr. Serjt. Davy argued this demurrer for the plaintiff. The plea, he said, was insufficient. . . . ... Lord MANSFIELD. Show that a matter given in evidence in a court of justice may be prosecuted in a civil action as a libel. The Court, indeed, before which such evidence is given, may censure it. Serjt. Davy. I will prove it: (1st) from authorities; (2dly) frem the reason of the thing. First, he cited as authorities. . . . Secondly. It would be most highly inconvenient, if it was otherwise, for any man's character might be cruelly injured by such an artifice as this; and, if he could not be protected by legal methods, he might (as in a state of nature) be driven to revenge himself. . . . Mr. Winn, contra, was beginning to argue the case on behalf of the defendant. But Lord MANSFIELD told him it was unnecessary for him to speak to it, as the matter was so plain. Here was a charge against the defendant in a court of justice, made upon oath and supported by an affidavit of Sir J. A.; and in the affidavit of the defendant in answers to this complaint he mentions the charge upon him, and denies it, with this conclusion of calling it "what Sir John Astley has so falsely sworn against him.' And as to the reason of the thing, there can be no scandal, if the allegation is material; and, if it is not, the Court before whom the indignity is committed by immaterial scandal may order satisfaction, and expunge it out of the record, if it be upon record. This that is now under our consideration arose upon the very point in question. It is not a collateral recrimination. . . . As to the authorities, there is another case, which is vastly stronger; viz., 1 Ro. Abr. 87, title "Action for Case," letter M, pl. 4. In an action upon the case ... it was holden "that the action was not maintainable: for the answer which B. made to the said affidavit was a justification in law, and spoken only in defense of himself; and that in a legal and judicial way (inasmuch as he said he would prove it by forty witnesses)." As to the words, that case is quite parallel to the present, and they were only spoken in his own defense and by way of justification in law, and in a legal and judicial way in answer to a complaint made against him to the Court. So here the defendant's affidavit is in defense to a complaint against him. . . . This ought not to be made a matter of question, and we are all of us clear in the same opinion. . . . ... ... Mr. Justice DENISON concurred with his lordship, and thought the matter to be extremely plain. . . . Mr. Justice FOSTER concurred. Mr. Justice WILMOT also concurred. . . . Per Curiam, unanimously and clearly, Judgment for the defendant. 1000. HOAR v. WOOD SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1841 3 Metc. 193 IN the trial of an action of slander in the Court of Common Pleas, before STRONG, J., the plaintiff introduced evidence tending to prove that the defendant uttered the words set forth in the writ and declaration. It also appeared that the words were spoken to the plaintiff in the presence of others, while the plaintiff was under examination as a witness, in a trial before a justice of the peace, on a complaint in behalf of the Commonwealth, where the defendant was the complainant and was examining the plaintiff, and managing the case in behalf of the Commonwealth. The defendant requested the Court to instruct the jury as follows: "That if the jury believed that the words were spoken to a witness in a case on trial before a justice of the peace, in the course of the conduct of the case, while the witness was under examination, the defendant being complainant, and manager of the case in behalf of the Commonwealth, and that the words were spoken bona fide, without actual malice or intent to defame the witness, with a view to elicit the truth from the witness, or give the justice a comment upon the testimony to influence him thereby in the decision of the case, the defense is maintained." The Court refused to give such instructions to the jury, and the jury found a verdict for the plaintiff. To this opinion and decision of the Court the defendant excepted. E. R. Hoar, for the defendant. Farley, for the plaintiff. SHAW, C. J. . . . Great latitude of remark and observation is properly allowed to all persons, both parties and counsel, in the conduct and management of all proceedings in the course of the administration of justice. It is for the interest of the public that great freedom be allowed in complaints and accusations, however severe, if honestly made, with a view to have them inquired into, to have offenses punished, grievances redressed, and the laws carried into execution. And this extends not merely to regular courts of justice, but to all inquiries before magistrates, referees, municipal and ecclesiastical bodies; and they are only restrained by this rule, viz., that they shall be made in good faith, to courts or tribunals having jurisdiction of the subject and power to hear and decide the matter of complaint or accusation, and that they are not resorted to as a cloak for private malice. 1. The first exception taken by the plaintiff to the defendant's claim to consider the words, which are charged as slanderous, as a privileged communication or words spoken in the course of a judicial proceeding, |