
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Milam v. Burnsides and others.
    Libellous charges, made before a court not legally competent to investigate them, are actionable.*
    Motion to set aside a nonsuit. The action was an action on the ease for libel, brought in the district court of Laurens, and was tried before Tbbzjsvant, J. The declaration set forth, that the defendants, to injure the character of the plaintiff, exhibited certain charges against him, in writing, to certain officers of the militia, sitting as a court of enquiry, accusing the plaintiff of divers criminal offences, and particularly of the crime of larceny, under the pretence of bringing him before a military court of inquiry, and afterwards before a court martial, in order to degrade him from his rank of major in the militia; and set forth the tenor of the libellous charges exhibited. The defendants pleaded the general issue, aud also a plea in justification, which stated that the charges whereof the plaintiff complains as libellous, were properly exhibited according to martial law, and upon reasonable and probable grounds of suspicion and belief, aud for the honor and benefit of the militia service, without any such malicious motive to injure the reputation of the plaintiff, as alleged by him. Whereupon the plaintiff replied, that the said charges were maliciously made, and without any sufficient cause, by the defendants of their own wrong, &c. and tendered an issue to the country, and issue was joined thereon. At the trial of the cause, the judge, who presided, being of opinion that the justification was sufficient; upon the. ground that the courts of civil justice ought not to subject to damages persons exhibiting such charges against an officer of the army, or in the militia, according to martial law, but the person injured by such an accusation must look for redress in the courts martial; the plaintiff suffered a non-suit, with h ave to move to set the same aside in this court, upon - the ground that this opinion of the court was erroneous.
    The motion was argued by Dunlap for the plaintiff, and Fab. Itow for the defendants.
   By the Court.

By the act of congress of 1791, a court of in. quiry is not authorised to be holden but at the request of the person accused, or him against whom the inquiry is to be made. This is also agreeable to the articles of war. But, in this case, it appears that the plaintiff never demanded an inquiry, and was brought up

unwillingly before the pretended court of inquiry, to answer the various charges brought against him by the defendants.

The defendants cannot shelter themselves under the cover of any such illegal procedure. The pleadings in this'case are imperfect,' and did not bri..g the point in question properly before the court by demurrer, as they ought: nevertheless, fh'e point upon which the judge decided in the district court, was the point intended to be brought before that court for decision. That decision is not right; not only for the reason already given, but because we are all of opinion that, notwithstanding the charges,' which were exhibited to the court of enquiry, were made pursuant to military form, and in. strict conformity to law, yet if the same be falsely made, with a malicious intention to defame and injure the plaintiff, and without reasonable and probable cause, the plaintiff would be entitled to maintain his action for defamation, and recover damages. The case of Sutton v. Johnstone, 1 T. R. 493, cannot influence the question. The same necessity does not exist here, and besides, that case is applicable to the present, for Com; Johnstone did not impute to Oapt. Sutton any act punishable in a court of civil justice; and if it were applicable, yet a decree so unjust in itself, can neves be recognized as law in our country.

Tkezjsvant, J.

expressed himself satisfied with this decision»

The nonsuit was set aside, and a new trial granted.

Note. See 4 Bac. Abr. 452, Libel, King v. Bailey. 2 Bur. 807, Ashley v. Young. 1 Hawk. 194. 4 Rep. 14. 2 Inst. 228 Dyer, 285. 2 Bl. R 1038. 1 Saund. 131, the King v Lake, Wms. ed. and the notes. A false and scandalous petition to a committee of parliament, printed and delivered, held justifiable, because in ' order and course of proceedings in parliament.

Lex potius vult paii privatum incominoduM, quam publicum malum. Vide Thorn v. Blanchard, 5 Johns. 508. The policy of the law will not permit prosecutions for libel in certain cases, qu. vide, 1 Hawk. P. C. c. 73. 
      
      
        [Vide Heyward v. Cuthbert, 4 M’C. 354.]
     