1 Denio 41 | Court for the Trial of Impeachments and Correction of Errors | 1845
Whatever may be sa'd or written by a party to a judicial proceeding, or by his attorney, solicitor or counsel therein, if pertinent and material to the matter in controversy, is privileged, and consequently lays no foundation for a private action or a public prosecution. The general language of elementary writers is, that whatever occurs in the regular course of justice is privileged, (Hawk. P. C., B. 1, ch. 73, § 8; 3 Chit. Cr. Law, 869; 1 Saund. 131 (1.); 1 Russ. on Crimes, 307; Bac. Abr. Libel, A. 4;) and by which they intend to indicate the principle I have stated. If what is said or written is pertinent and material to the controversy, the protection to parties and those who represent them, (for all stand on the same ground,) is absolute and unqualified, and no one shall be permitted to allege that it was done with malice. But this is the extent of the privilege; for if a party or his agent will pass Beyond the prescribed limit to asperse and vilify another, by word or writing, he is without protection, and, as in other cases, must abide the consequences of his own misconduct. If slanderous words are used, he is a slanderer; and if he offends.in writing, he is a libeller, and may be prosecuted both civilly and criminally as such. (Hastings v. Lusk, 22 Wend. 410 ; Hodgson v. Scarlet, 1 Barn. & Ald. 232 ; Ring v. Wheeler, 7 Conn. R. 725; See also Thorn v. Blanchard, 5 John. R. 508.)
This being the principle which must govern all cases of this character, it is only necessary to see how it applies to the one now before us. The alleged libellous matter was part of a declaration in a justice’s court, which was prepared and presented to the justice by the plaintiff in error, who acted on that occasion as counsel for the plain
The judgment should be affirmed.