
    Reuben Lanning v. Harriet E. Christy.
    An action will not lie for statements contained in an answer alleged to be libelous, if such statements were honestly made, without malice, and if they were relevant, believed by defendant to be true, and were made upon probable cause, and under advice of counsel.
    Error to the District Court of Guernsey county.
    A summary of the facts is this: Harriet E. Christy, defendant in error, was seduced by Isaac H. Lanning. She ■procured the arrest of Lanning, upon a charge of bastardy; whereupon the complaint was compromised, Isaac H. Lanning and Reuben Lanning, plaintiff in error, giving five promissory notes in settlement. Isaac Ii. Lanning was also indicted for the seduction. Afterward, he married defendant in error, Harriet E. Christy, and during coverture, by threats and abuse, got possession of the five promissory notes. Subsequently, the parties were divorced. Then Harriet E. Christy sued the two Lannings, setting up all these facts, and asking judgment on one of the notes which was due, and such order as to the others as might be just.
    ' To this petition, the two Lannings answered. They say that the notes were obtained by fraud; that Isaac H. Lanning was not the father of the child, but somebody else was; and that the woman had practiced a deceit to obtain the settlement she did.
    These being the facts, Harriet E. Christy, in the court below, filed the petition in this case against Reuben Lanning. She sets up what has been heretofore detailed, and says that the answer filed by the two Lannings, in the former case, was false, scandalous, defamatory, and libelous, having charged her with unchastity and perjury in charging Isaac H. Lanning with being the father of her child.
    Being of good name and repute, she asks damages for the wrong done her by the filing of the answer spoken of.
    
      This petition is demurred to, and the demurrer overruled..
    Reuben Lanning, plaintiff in error, then answers. The-second clause of this answer states that the matters alleged to be libelous were made in the pleading for the sole purpose of defense, and that they were pertinent and material.. The third, clause says that these statements were made in good faith, were believed to be true, and there was probable cause for such belief; that they were made upon advice of counsel, and were pertinent and material. . These two clauses were demurred to by plaintiff, Harriet E. Christy, and the demurrers sustained. An amended answer was-then filed. It says that the statements alleged to be libelous, were made by way of defense, that they were made-honestly and in good faith, and without malice ; that they were relevant and pertinent; that they were then, and now are, believed to be true ; that there was probable cause for so believing; that they were made upon advice of counsel, and were pertinent and material to the defense.
    This answer was demurred to, and the demurrer sustained, exception being taken.
    Subsequently there was verdict and judgment in favor of plaintiff below, Harriet E. Christy, for $750, which; upon a second trial, was increased to $1,200. Motion for new trial was overruled, and judgment.
    A petition in error was filed in the district court, and the judgment of the common pleas affirmed. A petition in error was filed in the supreme court, assigning for error:
    1st. The district court erred in affirming the judgment of the court of common pleas.
    2d. The court of common pleas erred :
    I. In overruling the demurrer to the petition.'
    II. In sustaining the demurrer to the second and third defenses in the original answer, and the amended answer, or amendment to answei’.
    8d. In overruling the motion to set aside the second verdict and for a new trial, and in rendering the final judgment for $800 and costs.
    And for other errors. '
    
      
      Hiram, Skinner, for plaintiff' in error.
    
      White § Campbell, for defendant in error.
   Wright, J.

The question at issue is this. In an answer, the party defending makes statements that, standing ■.alone, would be a libel on the plaintiff. The pleading, however, avers that the allegations in question were made 'in good faith, without malice ; that they were relevant, believed to be true, and there was probable cause for such belief; further, that the pleading was under the advice •of counsel. Can an action for damages be predicated upon •.such a pleading ?

The answer of Reuben Banning set up such a defense ; a •demurrer to it being sustained, the court holds that that •defense is not good in law.

It is perhaps difficult to determine the precise nature of’ the action before us, and whether it is an action for libel, •or rather in the nature of an action to recover for malicious prosecution.

Townshend on Slander, section 220, says that “ defamatory matter, published in orto a court of criminal jurisdiction, may constitute the wrong called ‘ malicious prosecu-. ■tiou,’ but never the wrong called slander or libel.” There was a word called “ calumny ” in the civil law, which signified an unjust prosecution or defense of a suit, and the phrase is still said to be used in the courts of Scotland and the ecclesiastical and admiralty courts of England, though we do not find cases of the kind in the reports.

If this be an action in the nature^of one for malicious prosecution, it is evident the petition is defective, in not .•averring the termination of the original suit, in which the .■answer complained of was filed.

This is a well-settled rule in that class of actions. 2 Greenl. Ev., sec. 452. But if we consider it as an action for libel, it has often been laid down that proceedings in •court are not to be made the ground of such an action. Townshend says, in reference to the right of appealing to •civil tribunals: “ Every one has the right, with or without reasonable cause for so doing, to prefer his complaint to1 them ; and whatever he may allege in his pleading, as or in connection with his grounds of complaint, can never give a right of action for slander or libel. The immunity thus enjoyed by a party complaining extends also to a party defending. Whatever one may allege in his pleading, by way of defense to the charge brought against him, or by way of counter-charge, counter-claim, or set-off’, can never give a-right of action for slander or libel. The rule thus laid down has been doubted by some, and it has been said that if the tribunal to which the complaint be made has no jurisdiction of the subject-matter, or if the defamatory matter be irrelevant to the matter in hand, or if the party complaining or defending maliciously inserts defamatory matter in his pleading, that in such cases the party aggrieved may maintain his action for slander or libel. Nothwithstanding the dicta to the contrary, we believe the better and prevailing opinion to be, that for any defamatory matter contained in a pleading in a court of civil jurisdiction, no action for libel can be maintained. The power possessed by courts to strike out scandalous matter from the proceedings before them, and to punish as for a contempt, is considered a sufficient guarantee against the abuse of this privilege; but, whatever may be the reason, it seems certain that where-there is a perversion of the right, the policy of the law-steps in and controls the individual right of redress by action of libel.” See. 221.

In Hill v. Miles, 9 N. H. 14, it is said: “ An action for libel can not be sustained for a proceeding before a court having jurisdiction of the subject-matter, if the process was instituted under a probable belief that the matter alleged, was true, and with the intention of pursuing it according to the course of the court, even if the matter turns out to' be wholly false. ... It may well be questioned whether an action for libel could be sustained, under such circumstances, even if there was evidence of express ill will.” Kidder v. Parkhurst, 3 Allen, 393; Watson v. Moore, 2 Cush. 133.

2 Addison on Torts, p. 983,' ch. 17, see. 1, says: “ An action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a court of competent jurisdiction.”

There are many authorities which hold that statements made in the usual course of judicial proceedings, whether of witnesses, counsel, or otherwise, come under the head of communications called privileged, although it is at the same time said that, if those statements are false and malicious, they may lay the foundation of an action. Perkins v. Mitchell, 31 Barb. 461. Again, the syllabus in Henderson v. Brownhead, 4 H. & N. 567, is this: “No action lies against a party who, in the course of a cause, makes an affidavit in support of a summons taken out in such cause,, which is scandalous, false, and malicious, though the person scandalized and who complains is not a party to the cause.” See Hastings v. Lusk, 22 Wend. 410.

In Marsh v. Ellsworth, 50 N. Y. 311, the court say: The-law is well settled that a counsel or party conducting judicial proceedings is privileged in respect to word's or writiugs used in the course of such proceedings, reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used; but that such privilege does not extend to matter having no materiality or pertinency to such questions.”

The authorities seem to be: some that what is said or written in the course of judicial proceedings is absolutely privileged, and no action can lie therefor; others are to the effect that the statements must at least be relevant to the issue in hand ; others that they must not be false and malicious.

It is not necessary for us to consider the many difficult questions which might arise in cases other than the one before us. The answer we are considering upon this demurrer, avers that the statements made, which were a.leged to be scandalous, were honestly made, without malice; that they were relevant, believed to be true, with probable cause for such belief; and, further, that the statements were made upon the advice of counsel. Such an answer sets forth a good defense, and the court erred in sustaining a demurrer to it.

The judgment of the district court and common pleas is reversed.  