19 Barb. 111 | N.Y. Sup. Ct. | 1854
By the Court,
Whether the paper containing the supposed libelous matter1, as shown by the pleadings and evidence, was a privileged communication, is a question of law. The referees have reported as matter of fact, that it was privileged. Whether treated as a question of law or fact is perhaps of little moment in this case, provided their decision be correct as matter of law; since there is no conflict in the evidence in relation to the occasion upon, and the circumstances under, which the paper was composed and published. If it was not privileged, the report was wrong, and the plaintiff was entitled to recover, whether there was any express malice or not, on the part of the defendant, in the publication. Where the slanderous or libelous matter is not proved to be true, it is to be taken as false, and the law in such case always implies malice. (King v. Root, 4 Wend. 113.) The referees have not reported upon the question whether the charges were true or false; but have evidently placed their finding upon the ground that the affidavit was a privileged communication. Whether a communication, otherwise slanderous, is privileged, depends upon the occasion and' circumstances under which it is made. I fully concur in the general proposition of the defendant’s counsel, that words spoken or published, which, under ordinary circumstances would be slanderous or libelous, are held to be privileged when spoken or written on, or in connection with, a lawful occasion; that is, in a legal or judicial proceeding, parliamentary debate, applications,
The general rule, however, is subject to this qualification: that in all cases where the object or occasion of the words or writing is redress for an alleged wrong, or a proceeding in a tribunal, or before some individual or associated body of men, such tribunal, individual or body must be vested with authority to render judgment, or make a decision .in the case, or to entertain the proceeding, in order to give them the protection of privileged communications. (Thorn v. Blanchard, 5 John. 508. King v. Root, supra. Howard v. Thompson, 21 Wend. 319. O'Donayhue v. McGovern, 23 Id. 26. Hastings v. Lusk, 22 Id. 410. Fawcett v. Charles, 13 Id. 478.) This qualification of the rule runs through all the cases where the question is involved.
Looking at the case before us, in the light of this rule as thus' stated, it is impossible to regard the affidavit of the defendant, made for the purpose mentioned, and under the circumstances disclosed by the pleadings and evidence, as a privileged communication. The constitution of the United States provides that “ a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, "shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Const. U. S. art. 4, § 2, subd. 2.)
To carry into effect this provision of the constitution, congress passed an act, which was approved on the 12th day of February, 1793, the first section of which provides r “ That whenever the executive authority of any state in the union, or of either of the territories northwest or south of the river Ohio, shall demand any .person as a fugitive from justice, of the executive authority of any such state or territory, to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded with .having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or ter
The 2d section of the same act declares that “ any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting,-as aforesaid, the person or persons so offending shall, on conviction, be fined, not exceeding five hundred dollars, and be imprisoned not exceeding one year.” ( U. S. Statutes at Large, vol. 1, p. 302.)
It is entirely clear, we think, that the governor had no power whatever to entertain an application to recall, revoke or modify the warrant which he had issued for the apprehension of True. When a requisition is presented for the arrest of a fugitive from justice, accompanied by the proper vouchers, according to the act of congress, it is the duty of the executive to cause the fugitive to be arrested and delivered to the agent appointed to receive him. True was alleged to be a fugitive from justice from the state of California, and to have fled to this state. The executive authority of California demanded him of the executive of this state, and appointed the plaintiff as its agent to receive him, &c. In obedience to the law, the executive of this state issued his warrant directing the arrest of True, and his delivery to the plaintiff as such agent. The plaintiff was the agent of California, and the governor of this state had no right to inquire into his fitness. The proceeding before him for that purpose, upon
Johnson, T. R. Strong and Welles, Justices.
The defendant was a volunteer in making the affidavit, and he must defend himself the same as for any other unprivileged communication. The judgment entered on the report of the referees should be reversed, the report set aside, and a new trial ordered, with costs to abide the event.
Ordered accordingly.