
    SEYMOUR N. MARSH, Plaintiff, v. EDWARD ELLSWORTH et al., Defendants.
    
      [Decided December 3, 1870.]
    Where, upon an application for a bankrupt’s discharge, a creditor preferred charges of perjury against the bankrupt and one of his witnesses—held, in an action by such witness for an alleged libel, that if these charges were material to the bankruptcy proceeding, they were privileged, and that the burden was upon the plaintiff to show they were not material.
    Where, on the trial of such action, it appeared that the bankrupt’s proceeding was attacked on the ground of fraud—held, the charges were material.
    Before Monell, McCunn, and Spencer, JJ.
    The action was for a libel. Upon an application by one Caldwell for a discharge under the United States bankruptcy law, the plaintiff was examined as a witness. Subsequently the defendant, a creditor of Caldwell, filed objections to his discharge. One of the specifications was as follows :
    “ Third, and the said creditor (Edward Ellsworth, meaning) charges the said bankrupt (George Caldwell, meaning) with procuring his wife and the said Seymour H. Marsh (this plaintiff) to testify falsely in the course of their examination in the proceedings (meaning said proceedings in bankruptcy) in regard to material facts in relation to these proceedings (meaning such proceedings in bankruptcy) ; in inducing said Marsh (meaning this plaintiff) to testify that the said bankrupt (meaning said George Caldwell) was only a salaried employe of said Marsh & Co., and that the share of the business assets and property of the said firm, which in truth and in fact belonged and belongs to the said bankrupt, had, prior to 1854, been the property of one Joshua Read, and since 1854 had been and now is the property of said Eleanor J. Caldwell,” thereby intending to and accusing this plaintiff of committing perjury in Ms said examination before said register.
    The complaint alleged that the defamatory statements so made against the plaintiff were made without any reasonable or probable cause, and were wholly immaterial upon the controversy pending before the United States District Court, and were made in writing over the signatures of each of said defendants, and were wholly untrue, malicious, and wilful, and made with the purpose and intention on thepa/rt of the defendants of defaming and injuring this plaintiff.
    
    The defendants denied the want of probable cause, or that the statements were immaterial upon the pending controversy.
    On the trial before Mr. Justice Jones, the proceedings in bankruptcy, including the specification containing the alleged libel, were given in evidence.
    The justice held that the objections and specifications were material upon the controversy pending before the United States District Court, and were therefore privileged, and he directed a verdict for the defendants. The plaintiff excepted, and the court sent the exceptions to the General Term.
    
      Mr. Ira D. Warren for plaintiff.
    “ The privilege of parties and attorneys, solicitors and counsel, in respect to words or writing used in the course of judicial proceedings reflecting upon others, is limited to matters which are pertinent and material. If he goes out of the way to asperse or vilify another by words or writing, not material to the controversy, he is without protection” (Gilbert v. The People, 1 Denio, 41; Ring v. Wheeler, 7 Cowen, 725).
    “Words spoken by counsel or published by a party in judicial proceedings do not fall within that class of privileges for which no action will lie, however false or malicious may be the charge against the reputation of a private individual.” “ The jury must be satisfied that there was actual malice.” “ That malicious motive may be inferred from the palpable irrelevancy of the words to the subject in controversy ” (Suydam v. Moffat, 1 Sandf., 463, 464).
    “ A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it” (Wright v. Woodgate, 2 Crompton, Meeson & Rosco, 573).
    We say, therefore, that the accusation was wholly immaterial, because it now appears that the plaintiff did not testify to what he was accused of.
    The court erred in not submitting the question to the jury, as requested by the plaintiff, viz.: “ whether the defendants, when they made the charges contained in the specifications, made them in good faith, or in the belief that they were pertinent or material to any question in the case, or whether they were actuated by malice, and used the words for the purpose of defaming the plaintiff.”
    This proposition has been expressly decided (White v. Carroll, Court of Appeals; Albany Law Journal, vol. 1, page 357; Suydam v. Moffat, 1 Sandf., 463, 464; Hastings v. Lush, 22 Wend., 414).
    
      Mr. William A. Coursen for defendants.
    The complaint shows that all the proceedings on the part of the defendants were in opposing the discharge of the bankrupt. The answers set forth more fully the same matters as a defense. and in addition thereto, the answer of the defendant Ellsworth denies that the specification complained of was made by him or with his knowledge or authority. The answer of the other defendant denies malice or immateriality in the specification, and states the same to have been made solely in the course of professional duty. The United States bankrupt law (section 30) makes “ any fraud whatever contrary to the true intent of the act ” a ground for refusing the discharge. It is admitted (or certainly undeniable) that the specification to which exception is taken by the plaintiff, was filed for the purpose of charging a fraud against the bankrupt law upon the defendant Caldwell. If he did procure the plaintiff to testify to-what was false in matters which might have prevented his (Caldwell’s) discharge, then he was clearly guilty of a fraud provided for in the law. The point seems hardly to have sufficient uncertainty to admit an argument. We have only to put the questions in this wise: Suppose that what the plaintiff did testify to was false, and that he so testified under the procurement of Caldwell % Suppose that the testimony, to the effect that Caldwell had been only a clerk in the firm of Marsh & Co., was not true, then as the schedule of property of the bankrupt (Caldwell) had no mention of any interest or assets on his part in the firm of Marsh & Co., the discharge of the bankrupt would have been necessarily refused.
    There is no reasonable question in reference to the law in the case.
    “Words spoken or written in a legal proceeding, pertinent and material to the controversy, are privileged, and the truth of the statement cannot be drawn in question in an action for slander or libel. And where the statement is privileged within this rule, it is unnecessary in this action of libel for the defendant to deny the allegation of malice.”
    These are the words in the head-note of Garr v. Selden (4 Comstock, 91), and they correctly express the point decided in that case—and they more than cover the point in favor of defendants in this case. The defendants in this action both deny the allegation of malice, and one (Ellsworth) denies the making or publishing of the libel. Surely these words (the alleged libel) were written in a legal proceeding, and were without doubt “pertinent and material to the controversy.”
    The “ controversy ” was concerning the discharge of the bankrupt (Caldwell), and that discharge would not have been granted if the statement or specifications referred to as a libel contained the truth.
    We refer also to the opinion of the General Term of this court on this action, on the appeal of the defendant from a decision of the Special Term overruling a demurrer to the complaint—36 Howard, P. R., page 532. By that opinion it appears that no doubt existed in the mind of the court in regard to the law applicable to this case. It further appears that the only question in the case, not in favor of the demurrer, was the absence of any allegation in the complaint showing the materiality of the alleged libellous matter (36 Howard, p. 537). That point is entirely cleared up by the answer of the defendants and the testimony in this case now before this court.
   By the Court:

Monell, J.

When this ease was up on the appeal from the order overruling the demurrer to the complaint, this court held (36 How. Pr. R., 532) that words spoken or written in a judicial proceeding by any person haring an interest therein were absolutely privileged, and no action would lie therefor, however false, defamatory, or malicious they might be, provided the matter was material to the inquiry before the court, and that the onus was upon the person speaking or writing the defamatory words to show their materiality to the controversy ; and the only question then before the court was whether such materiality appeared upon the complaint, there being no other paper before the court, and the court held that the facts stated in the complaint did not show that the defamatory matter was pertinent and material upon the proceeding pending in the bankruptcy court.

On this trial the defendants gave in evidence such of the proceedings in the bankruptcy court as were necessary to show the materiality, as it was claimed, of the matter complained of, and we think they show clearly that the specifications were material, and therefore privileged. They were used in opposing the bankrupt’s discharge, and were certainly material under the section of the bankrupt act which makes “ any fraud whatever contrary to the true intent of the act ” a ground for refusing a discharge.

We think the defense was complete, and there was no question for the jury.

¡Neither was the good or bad faith with which the defamatory words were written at all in issue. They being absolutely privileged, it was immaterial with what motive they were written. The testimony, therefore, which was objected to, was of no consequence, and did not prejudice the plaintiff.

The exceptions should be overruled, and judgment ordered for the defendants upon the verdict.  