
    SEYMOUR N. MARSH, Plaintiff and Respondent, v. EDWARD ELSWORTH and Another, Defendants and Appellants.
    Words spoken or written in a judicial proceeding by any person having a duty to .discharge or interest to protect in such proceedings, are privileged communications; and no action will lie for such speaking or writing, however false, defamatory, or malicious, if the words are material to the issue or inquiry before the Court.
    The party claiming such libellous and defamatory words, to be privileged, must show affirmatively and clearly that such words were written or spoken in a proceeding as aforesaid, and were material to the issue or inquiry before the court or tribunal. The materiality of a communication defamatory in its terms will not b & presumed but must . be clearly proved.
    The question whether slanderous words or libellous matter spoken or written in the prosecution, defence, trial, or argument of an action, are absolutely privileged or not, depends on the relevancy or pertinency of the words or matters to the prosecution, defence, trial, or argument to the action. Per Jones, J.
    The element of truth does not enter into the consideration of such relevancy or pertinency at all. Per Jones, J.
    Before Monell, Jones, and Fithian, JJ.
    
      [Decided February 12, 1869.]
    This is an action for libel. The complaint alleged, in substance, that in a certain proceeding in bankruptcy, on the petition of George Caldwell, a bankrupt, to be discharged from his debts, the defendant Elsworth appeared and opposed the bankrupt’s discharge; that the matter was referred to Henry Wilder Allen, a register in bankruptcy, and an order was made for the examination of the bankruptthat on such examination of the bankrupt, the defendant Elsworth, and defendant Ooursen, acting as his attorney, called plaintiff as a witness, and he wag sworn and examined as a witness in such proceeding before such register, in behalf of defendant Elsworth; that afterward the defendants maliciously composed and published what purported to be specifications or objections to the bankrupt’s discharge, wherein, among other things, they falsely alleged that the bankrupt Caldwell had procured and induced the plaintiff to testify %lsely on. such examination in regard to material facts, viz., that a certain share or interest in a certain business and firm, which m truth and fact belonged to the bankrupt, was the property of other persons, thereby intending to charge plaintiff with committing perjury on such examination. The complaint further alleged that the said defamatory statements were wholly immaterial upon the controversy pending, before the Register and the United States District Court, between the bankrupt and his opponent; that they were false, and malicious, and wilful, and made with intent to defame and injure the plaintiff.
    The defendants demurred to the complaint, alleging for cause of demurrer that the complaint does not contain facts sufficient to constitute a cause of action. The demurrer was argued at Special Term before Mr. Justice Jones. The demurrer was overruled, and from that order defendants appeal.
    
      Mr. A. R. Dyett for appellants.
    The complaint shows that the whole proceedings on the part of the defendants were in opposing the discharge of the bankrupt, George Caldwell.
    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 clearly manifest from the allegations of the complaint that the specifications to which exception is taken by the complaint, was filed for the purpose of charging a fraud upon the bankrupt Caldwell. If he did procure the plaintiff to testify to what was false, then he (Caldwell) was guilty of such a fraud, contrary to the true intent of the act, as would have prevented his discharge. “ 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” (Garve v. Selden, 4 Comstock, 91). The matters testified to by the plaintiff in the proceeding before the "United States .Register were or were not pertinent and material.
    If. those matters were pertinent to the matter in'issue (or controversy) it could not be said that the charge of truth or falsity .in respect to them, was wholly or at all immaterial in the controversy pending before the Register. If those matters were not pertinent Or material, then the plaintiff could not have been (or ;was not) charged with perjury or subornation of perjury in the statement or specification. As to the materiality or pertinency of the defamatory statement or specification, that is a question for the Court to decide on the facts stated in the complaint. The allegation of the complaint that the same were “ wholly immaterial,” &c., is only, the statement of a conclusion of law, and is of no more.force or effect in the complaint than would be the allegation of “ indebtedness” in an action on a promissory note. The words in the specification, “ charges the said bankrupt (George Caldwell, meaning) with procuring his wife and the said Seymour U. Marsh (this plaintiff) to testify falsely,” &o., do not "necessarily charge the plaintiff with committing perjury. His testimony may have been in effect false, and yet the witness may have honestly believed that to which he testified.
    
      Mr.. Ira D. Warren for respondent.
    The charge clearly and distinctly accused the plaintiff of having sworn falsely, and of having been suborned to do so. The defendants claim that, the charge being made in a judicial proceeding, they are protected. We claim they are not protected, for the following reasons:
    That the charge was false and malicious.
    That it was made "with an intention to injure the 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 matter which is pertinent and material.” “ If he go 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; Warner v. Paine, 2 Sand., 195).
    The fact of its being prima facie a privileged communication only rebuts the presumption of malice to be inferred from the slanderous words. The plaintiff has a right to show on the trial, notwithstanding the privileged character of the libel, that it was made maliciously (Edsall v. Brooks, 17 Abbott, 224, Monell, J.; Van Dyck v. Aspinwall, 17 N. Y., 193 ; Ormsby v. Douglass, 37 N. Y., 480; White v. Nichols, 3 How. U. S., 266).
    Although it is prima facie privileged, “ yet if it be proved that there was not probable cause for its statement, the law infers that it was malicious as well as false, and the writer will be liable for it as a libel” (Cook v. Hill, 3 Sand., 341; Washbourne v. Cook, 3 Denio, 113).
   By the Court:

Fithian, J.

That the words charged in the complaint are libellous, and actionable at common law, is not controverted-; and the defendants must be held to answer in damages for the'publication, unless they can show that, under the circumstances of the publishing, it was a privileged communication.” This, defendants claim to be the fact, on the grounds that the matter claimed as defamatory was written and published by them in a legal proceeding before a court of competent jurisdiction, in the discharge of their duty, and the protection of their rights as party and attorney. And further, that although the complaint alleges that the defamatory matter was wholly immaterial upon the controversy pending in the Court of Bankruptcy, yet that the facts stated in the complaint show that such defamatory matter was,- in fact, pertinent and material upon the issue pending in the bankrupt proceeding.

There is some conflict of authority in the American courts.as to the extent of the protection afforded to persons uttering or publishing defamatory matter of and concerning others, under circumstances which enable them to allege such' matter to be a “privileged communication.” In the courts of the United States, And in some of the States, it is held that the privilege and protection extend only to persons speaking or writing in good faith, and without malice; that in judicial proceedings, where the defamatory matter is pertinent and material to the issue being tried, malice is not to be implied, and the onus is upon the plaintiff to show the falsity of the words and express malice in the publisher or speaker, but where the matter is immaterial, the onus was upon the defendant to show that he spoke or published' in good faith and without malice, and having probable cause to believe the matter to be both true and pertinent (White v. Nichols et al., 3 How. U. S. Rep., 267, and authorities cited).

I am of opinion, however, after a careful examination of the authorities, that in England and in this State the rule is otherwise. It appears to he the settled doctrine of the courts of this State that words spoken or written in a judicial proceeding by any person (attorney or party) having a duty to discharge, or an interest to protect, in respect to such proceedings, are absolutely privileged, and no action will lie for such speaking or writing, however false, defamatory, or malicious may be the words, provided the matter was material to the issue or inquiry before the court (Buller’s Nisi Prius, 10 ; Brook v. Montague, Cro. Jac., 90; McMillan v. Birch, 1 Bin., 178 ; Hodgson v. Scarlett, 1 Barn. & Ald., 232; King v. Wheeler, 7 Cowen, 725 ; Gilbert v. The People, 1 Denio, 41; Hastings v. Lusk, 22 Wen., 410 ; Garr v. Selden, 4 Comstock, 91; Warner v. Paine, 2 Sanford, S. C., 195).

All- the authorities agree, however, that if the defendant will wander from the point in issue, and speak or write slanderous or libéllous matter of another, not material or pertinent to the inquiry, he shall be held to answer in damages, unless he can satisfactorily show that he spoke or wrote the words in good faith, without malice, and having reasonable and probable cause to believe they were both true and material. ,

Thus it appears that where words concededly defamatory are spoken or written in judicial proceedings, and the speaker or writer claims them to be absolutely privileged, within the principles settled by the above authorities, the onus is upon him to show clearly that such defamatory matter was material to the issue or inquiry before the court. And on this point there should be no doubt or uncertainty. The courts have (perhaps necessarily) gone a great way in extending protection to parties and attorneys. The materiality of the libellous matter is that which affords the protection, and whether material or not, is to be determined by the court, and must not be left in doubt or to inference. It should appear from the facts alleged or proved, or both, that the defamatory matter claimed to be “ privileged ” was certainly and clearly material to the inquiry before the court.

In the case at bar the words are libellous and defamatory, unless privileged.” The publication is admitted, and it is also admitted that the words are and were wholly untrue, malicious, and wilful,” and made with intent to defame,” as stated in the complaint. The defendants claim that these facts furnish no cause of action, because (as they allege) it appears from the facts set forth in the complaint that the libellous matter was published in a judicial proceeding, and was material to be alleged and proved in the case before the court; and that, therefore, neither the truth or falsehood of the words nor the motive with which they were published can be inquired into.

It remains only to inquire, then, whether it does clearly appear from facts stated in the complaint that the defamatory matter was material on any issue or inquiry pending before the Register or Court in bankruptcy; not that it might possibly appear to have been material, by inferring the existence of some facts not expressly alleged in connection with those that do appear, but whether, from the facts stated standing alone, the matter does clearly appear to have been material. And here I put out of view altogether the allegation in the complaint that the “ defamatory words were wholly immaterial upon the controversy,” &c., because that is an assertion, not of a fact, but a legal conclusion, upon which no proper issue could be taken. And the defendants are not to be held to have admitted the allegation by their demurrer, nor are they estopped from controverting it on argument (McKyring v. Bull, 16 N. Y., 297).

■ The plaintiff’s counsel contended, on the argument, that, whether the plaintiff did or not commit perjury or swear falsely on the.hearing before the Register, was wholly immaterial as between the bankrupt and his opposing creditor. This -is true; and if the charge had stopped there; it would be unnecessary to inquire further. But the gravamen of the defamatory accusation is not only that plaintiff testified falsely, but that he was induced so to do by the bankrupt. It becomes necessary, therefore, to examine further, and see if there be any facts stated in the complaint from which it appears that it was material on the question of the bankrupt’s discharge, or on the examination before the Register, either to allege or prove that the bankrupt had procured a witness to swear falsely in reference to any matter, 'material or otherwise, in the course of the previous proceedings.

Whether it was material so to allege or prove what is charged in the alleged defamatory specification, must depend entirely upon what was the particular and specific issue or inquiry pending before the Register at the time the plaintiff testified, and at ’the time of filing the libellous publication. After a careful and critical examination of the complaint, I am unable to discover any fact showing the materiality of the libellous matter. It is not permissible to refer to the language of the libel itself to show its materiality, for the complaint charges, and the demurrer "admits, the words of the libel to be wholly false and untrue. And that is not (in respect to the words spoken or written) a legal conclusion; for it is always allowable to allege as a fact that the defamatory words are false and untrue; and inasmuch as the only statement found in the complaint, tending to show that the witness was induced to testify in reference to “ material ■facts in the proceedings,” is a part of the libel itself, and the complaint alleging, and the demurrer admitting, that statement to be wlrolly false, the pleading is thus left without a single allegation ■tending to show the materiality of the defamatory matter.

This will more fully appear from a reference to the Bankrupt Act. Section 10 of that act authorizes the justices of the Supreme Court of the United States to make and publish rules , of proceedings in bankruptcy. Section 29 provides that a bank- . rupt’s application for discharge may be opposed and defeated, if , it be made to appear that he has been guilty of any one of . eighteen specific and enumerated acts and omissions, the last of . which is, “ if he has been guilty of any fraud whatever, contrary to the true intent of the act.” Section 31 permits an opposing , creditor to file a specification in writing of the grounds of his , opposition, and the court may order any question of fact, so pre- • sented, to be tried at a stated session of the court. And rule 24 provides that an opposing creditor shall enter his appearance ip . opposition on the day the creditors are required to show cause against the bankrupt’s discharge, and shall file his specifications of the grounds of his opposition, in writing, within ten days thereafter, unless the term be enlarged, and the court shall then make an order sending the case on to the docket of the District Court for trial. And section 26 provides for the examination, of the bankrupt and his wife before the court. Bow, all that ap- . pears in the complaint in respect to these essential requisites to .raise a material issue or inquiry, are the allegations that the bankrupt filed his petition; that it was referred to the ¡Register; that defendant Elsworth appeared and opposed the bankrupt’s discharge, and procured an order for his examinationbef ore the ¡Register ; that an examination was had, and the plaintiff was sworn as •a witness on such examination; and that afterward the libellous specification was filed. But there is not a single fact stated, outside the libel itself, from which the court caff learn what, was the subject-matter of the examination before the Register,- or as to what particular matter the plaintiff was examined upon; or as to whether his testimony related to either, or which, of the .eighteen grounds of opposition to a discharge, specified in the statutq There is, therefore, no fact whatever alleged in the complaint •from which the court can determine whether or not the testimony of the plaintiff before the Register (whether true or false) had any relation whatever to any fact necessary or proper to be proved or disproved, affecting the bankrupt’s discharge.

The defendant’s counsel relies upon the ease of Garr v. Selden, (4 Comstock, 91). But in that cáse all the facts to enable the court to determine as to the materiality of the scandalous matter were spread upon the record. , There the plaintiff had sued the defendant to recover for professional services rendered as an attorney and counsel in suits for the defendant; the defendant answering, among other things, that the plaintiff had conducted the suits in a negligent, unskilful, and unfaithful manner. The plaintiff moved the court, on affidavits, to strike these allegations from the answer. In opposition to that motion, the defendant read and filed an affidavit of his own, containing the scandalous matter complained of; and the only question was, whether that scandalous matter was material and pertinent on that motion. The court held it was, and that the words were privileged.

But there are no such facts shown in the complaint here. The defendants’ counsel claims that the alleged defamatory matter was material -to show that the bankrupt had been guilty "of a fraud, contrary to the true intent and meaning of the act,” in concealing his property. But the difficulty is, there is nothing in the complaint from which the court can see that the question of fraud, or concealment of property, or any thing else, that would make the charge contained in the libel material to be proved, was at all a subject of inquiry before the Register. So, even if it were true that the bankrupt, procured the witness (plaintiff) to" swear falsely before the Register, if that false swearing was in respect to some matter wholly immaterial to the inquiry pending before the Register, it would be equally immaterial to' allege of prove such subornation on any subsequent hearing before the District Court; because, if immaterial, it would be no evidence against the bankrupt. It is very possible that it was in fact very material to allege and prove the defamatory matter, but it suffices to say here that the complaint does not show it. Unless, therefore, the court is prepared to go the extent of holding that defamatory matter which, if true, does not appear to be at all" material, becomes material by publishing it-—even though confessedly false—the decision at the Special Term must be sustained.

The order appealed from is affirmed, with costs, and with leave for defendant to apply at Special Term for leave to withdraw his demurrer and answer on terms.

Jones, J.

(concurring). As I understand the law of this State, slanderous words or libellous matters, which would otherwise be irrelevant and impertinent to the prosecution,def ens e, trial, or argument of an action, and therefore not privileged, are not, by reason of the truth in point of fact of such words or matters, rendered pertinent and relevant, and thereby privileged; so, on the other hand, if such words or matters are relevant and pertinent, they are not rendered irrelevant and impertinent by means of being untrue in point of fact.

The question of absolute privilege depends on the relevancy and pertinency of the words or matters. The element of truth does not enter into the consideration of such relevancy and pertinency at all.

Thus, if counsel, in summing up, should charge a witness with having been sent to the State prison for perjury,, or with having committed perjury on other occasions—there being not the slightest evidence to justify even a suspicion of the truth of the charge—the making of the charge would be clearly irrelevant and impertinent, for the jury are to decide the case upon the evidence before them, and consequently counsel cannot travel out of the evidence to state matters not appearing therein, to thereby affect the minds of the jury. Such charge, then, not being relevant or pertinent, would not be privileged; it is evident its truth would not make it pertinent. But although not privileged, still the counsel could plead truth in justification, the same as if the slander had been uttered in the public street.

So, again, suppose there was evidence (although improperly admitted) tending to show, even though slightly, that the witness had been sent to the State prison for perjury, or had committed perjury iu other cases, then, as either of those matters would materially affect the credibility of the witness, upon which credibility the jury would be called on tó pass on the evidencbefore them, it would be relevant and pertinent for the counsel tó call the attention of the jury to the evidence, and strenuously argue and insist, and charge that it showed the witness to be a perjurer, or to have perjured himself in that trial, and to affirm his belief in the charge.

Being thus pertinent and relevant, the malting of the charge is privileged; and that it is untrue in point of fact does not destroy the privilege.

So, too, if, in opening his case, the counsel, at the suggestion of his client, informs the jury that he will put in evidence matters which are scandalous or libellous in themselves, as reflecting oil the character of the opposite party to the action, or of witnesses already sworn, and comments thereon in no measured language, he is, if such matters, on being proved, would be relevant and pertinent to the issue, absolutely privileged,' although the proof subsequently given wholly fails to substantiate the matters, and they are themselves untrue. And this, because at such stage of,the case he is bound to enforce and give in evidence that which his client informs him, it being pertinent to the issue, and not to examine whether it be true or false; but it is so enforced' and given in evidence at the peril of him who informs it (Stark on Slander, vol. i., p. 283).

There may be cases where parties, or even counsel, honestly misjudge as to what is relevant and pertinent to the question before the court; and in such cases it may be proper to leave it to the jury to determine as a matter of fact whether the' words were spoken in good faith, under a belief that they were relevant and pertinent, or whether the party using them was actuated by malice, and intended to slander the' plaintiff.

■ These propositions are substantially enumerated in Hastings v. Lusk, 22 Wend., 410, as I read the case, and seem to me .to be - founded on reason and justice.

I concur, therefore, with Judge Fithian (and for the reasons given by him) in holding that the demurrer in this case cannot be sustained unless it appears on the face of the complaint that the specification in question was material and pertinent to the issue before the District Court; and that it does not so appear.

Order affirmed, with $10 costs of appeal.  