23 Wend. 25 | N.Y. Sup. Ct. | 1840
By the Court, The first special plea is defective in substance. It neither denies that the letter was untrue, nor does it assert that the defendant believed it to be true; nor does it deny that the falsehoods contained in it were communicated to the bishop maliciously and with intent to injure the plaintiff, as the declaration alleges. It takes the high ground that, because the bishop was the plaintiff’s spirit- [ *29 ] ual superior, whose office it was to hear the "charges contained in the letter, and redress the grievances complained of, therefore, the defendant, no matter in what temper or spirit — -no matter whether he was conscious at the time of speaking truth or falsehood- — might act with absolute impunity, so long as he confined himself to the legitimate channel of communication. The books cited by his counsel come short of maintaining this proposition in its full extent. Starkie on Slander, 182 to 194, Am. ed. of 1826, and the cases there cited, relate to actions of slander for parliamentary and judicial proceedings. Here, I agree, that the party injured must, in general, bring his action as for a malicious prosecution, or an action on the case in the nature of a malicious prosecution, where any action will lie. Sometimes the person complained of is absolutely protected. This would be so where the libel was published by him in the course of his business or duty as a member of the legislature. The place protects him. So of judges, jurors and witnesses, though in order to insure protection either in parliamentary or judicial proceedings, the party must be acting within the line of his business or duty, as a member of the legislature or as a part of the court, or as a de
When you come to the party complaining or prosecuting, however, he is but prima facie protected; and in an action on the case for false and malicious indictment, information, complaint, or action, it lies with the plaintiff to declare specially, setting forth the proceeding and averring that it was unfounded and malicious.
One who publishes a correct account of proceedings in a court of justice, at such an advanced stage that his publication will not work a prejudice to any of the parties, is also protected. Starkie on Slander, Am. ed. of 1826, 195. And we now, I think, come to the line which divides the form of the remedy, between a special action as for a malicious prosecution, &c. *and an action of slander for a libel. If you sue for an injury com- [ *30 ] mitted by some unwarrantable proceeding in a court of justice, you must, in general, resort to the former; if for a garbled or unreasonable publication of such proceedings, your action is slander for the words ; and the latter remedy applies to all other slanders, whether oral or written, which are prima fade privileged. Among these are slander by a person acting in furtherance of his own interest, or that of his friend; a counsellor or attorney or other professional man, acting in behalf of his client or retainer; one giving the character of another in answer to an inquiry, for prudential purposes, or criticising a literary work. In all these cases, what is spoken or written may or may not be slanderous, accordingly as either is done in bad faith, or with honest intentions. Prima fade, the communication is privileged, but by averring and proving that it was false and impertinent, or made without probable cause and without a belief that it was true, an action of slander can be sustained. Such is the doctrine as collectable fromStarkie.
A similar doctrine applies to another class of cases treated in Thorn v. Blanchard, 5 Johns. R. 508, and in 2 Saund. Pl. and Ev. 801, marg. paying, or 373 of Am. ed. 1829. These relate to petitions or remonstrances addressed to state officers of the United States, having the power of appointment or removal. The books cited, and all the books agree, that the petition or remonstrance is, in such cases, entitled to about the same measure of protection, so far as the proof may be concerned, as is extended to an informer or plaintiff in a court of justice. The only difference lies in the form of action. For the petition or remonstrance, an action of slander will lie as for a libel, provided the proceeding be mala fide. The protection is not absolute ; but the plaintiff may aver and prove, that the communication was false and malicious. This was the doctrine of Thorn v. Blanchard, and of the cases cited in Saunders, who has, at the
Such I consider the settled doctrine in respect to written appeals, which are addressed to the appointing and removing power, instituted by our constitution and laws. The inquiry is, not merely was the redress sought through the proper channel ? but was it also bona fide ? I admit that the onus on the latter point was with the plaintiff. He must aver in his declaration, that the libel was false and malicious ; and he must show this fact on the trial. The defendant may meet him on the general issue ; and, [ *32 ] on its appearing *that the channel was legal, may demand that the plaintiff shall show, negatively, that there was want of probable cause, as he must in an action for malicious prosecution. If the defendant will not rely, as he may, on the general issue, but chooses to plead specially, he must then, at least, deny all malice, or insist that there was probable cause for instituting his complaint. The declaration avers that the complaint was false and malicious, and uttered with intent to injure the plaintiff. The plea must answer all material allegations, or it is defective in substance.
Such is the extent of the citizen’s privilege in addressing the civil power
I must be allowed to deny that the law extends any greater measure of protection to a church-member, petitioning a spiritual superior. Churches, in this country are, in a legal point of view, no more than other societies, voluntarily organized by our citizens, with such gradations of officers and judicatories as may subserve the purposes of moral and religious redress. The law concedes the right of petition and remonstrance to a spiritual superior, when they are presented with a view to such redress. The proper channel being pursued, as the plea under consideration in the [ *33 ] case ^before us shews that it was, I grant, that the church member in question is entitled to the same measure of protection as if he had, when writing the libel set forth in the declaration, been engaged in seeking the removal of an inferior officer, at the hands of a superior, created by the constitution or the law. But I deny that he is entitled to more. The declaration charges him with falsehood and malice ; with an intent to injure. Let him deny these in his plea ; nay, let him plead mere probable cause, and I will allow his plea, if it be not demurred to as amounting to the general issue; or if a want of probable cause do not appear upon his trial under the latter plea, I will sanction that as a defence. But when he comes, as he does here, not daring to put even his good faith in issue before the country, I must be excused if I consider his defence as bad in point of law as it is in morals. I deny that he is entitled to any greater consideration than the member of any other voluntary society holding the same relations under a similar organization. Surely there can be no principle on which the law is bound to accord greater privileges to such, than to its own subjects, presenting like remonstrances to its own immediate agents. Here its simple demand is, that the citizen shall so act as not to bring upon himself the imputation of downright falsehood and dishonesty. One would suppose this a measure sufficiently moderate, at least for a man of the defendant’s high pre
I am clearly of opinion, both on authority and principle, that judgment should be rendered for the plaintiff upon the demurrer to all these 'pleas.