Somers v. Torrey, 5 Paige Ch. 54

Somers v. Torrey

5 Paige Ch. 54 | New York Court of Chancery | 1835

The Chancellor.

The statement in the answer which is covered by these exceptions, if it is not responsive to the bill or material to the defence of the suit, is not only impertinent, but is a gross slander upon one who is not a party to the suit, as well as upon the complainant. And the counsel who puts his hand to such scandalous and impertinent matter, is not only liable to the animadversions of the court, but is also chargeable with the costs of the proceedings, to have it expunged from the records of the court. (Mitf. Pl., Edw. ed., 48, 318.) It certainly could make no difference, as to the complainant’s right of off-set, whether he had slandered the defendant to gratify his own malice, or merely as the convenient tool of another. For that slander, with all its aggravations, the defendant Torrey had the right to appeal to a jury of his country for redress; and the complainant having been convicted of the slander, I am bound to presume the jury has given against him such damages as were proper, under the circumstances as disclosed at the trial. The statement excepted to in *56this answer as scandalous and impertinent, is calculated to degrade the slanderer still lower in the public estimation, by inducing a belief that he was only acting as a willing instrument to gratify the malice óf another, who had entered into a conspiracy to fix upon Torrey the charge of perjury. It is also calculated to injure the reputation of. a third person who. is not a party to the suit, and who has, therefore, no opportunity to prove the falsity of this statement as to himself. And it would bé a disgrace to the administration of justice, if any court should permit its records to be used for such purposes merely. If the complainant is the bona fide assignee of á judgment against the defendant, it can make no difference in the result of this suit, whether the slander for which the defendant recovered his judgment was the result of the complainant’s own malice, or of the. malice of another. The first part of the answer puts in issue every thing that is material for the defence; and it will enable the defendant to give evidence of any thing which would show that the assignment of the judgment to the complainant was not made in good faith, or that the judgment was transferred upon an illegal consideration. The residue of the answer was unnecessary, and therefore impertinent ; as the defendant is not permitted to put the sáme matters twice in issue, by allegations in different parts of his answer. The exceptions must be allowed, with costs; and the impertinent and scandalous matter must be expunged. (a)

The counsel whoso name is put to a pleading containing scandalous or impertinent matter is personally liable to the adverse party for the costs of the proceedings to expunge the scandal or impertinence. (Doe v. Green, 3 Paige,. 349.) So if a solicitor files a scandalous affidavit, he is guilty of a contempt of the court, and may be personally charged with th'e expense of taking'it offofthe files. . (Ex parte Wake, 1 Mont. & Bligh’s Rep. 259.)