Bartlett v. Christhilf

McSiieeey, <L, delivered the opinion of the Court. In a proceeding instituted in the Circuit Court of Baltimore City by John D. Muir, plaintiff, against William P. Whiting and J. Kemp Bartlett, Jr., defendants, the said Bartlett and one Christhilf, the .appellee, were appointed receivers.- Some weeks thereafter, Christhilf filed a petition in that case, alleging, in substance, that Bartlett was unlawfully and wrongfully withholding a portion of the assets from the receivers ; that he was obstructing the collection of the assets of the firm; acting in contempt of the authority of the Circuit Court, and that he had embezzled some of the money belonging to the trust. Upon this petition an order was passed, requiring Bartlett to show-cause why he should not be attached for'contempt ²²³ and removed from his office of receiver. Bartlett answered the petition, but before any hearing was had upon it, the case of Muir against Whiting and Company was settled and dismissed by order of Muir, the plaintiff, and Whiting and Bartlett, the defendants.

Thereupon Bartlett instituted suit against Christhilf in the ¡Superior Court of Baltimore City for an alleged libel and a malicious abuse of the process of the Court. The declaration contains two counts. The first avers that the statements of the petition filed by Christhilf were libellous because they falsely and maliciously imputed to Bartlett a neglect of his duty as receiver; alleged that he was guilty of a contempt for the Court which had appointed him to his position, and charged that he, Bartlett, had committed the crime of embezzlement in regard to moneys entrusted to his hands through the order of the Court. The second count, for an alleged malicious abuse of the process of the Court, will be stated later on in this opinion.

It is insisted that the appellee is not liable to be sued in an action for libel on account of anything stated by him in the petition alluded to; because, it is claimed, that the statements alleged to be libellous are privileged. We have had before us this term cases involving the privilege of counsel and of witnesses, and in the opinions delivered in those cases the authorities upon the subject of privilege have been fully reviewed. * The case now before us, as far as the first count of the declaration is concerned, is of a kindred, character, and must, therefore, be governed by the view of the law adopted by a majority of this Court in those cases. It is stated in a work of high authority that “an action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a Court oi competent jurisdiction, such as defamatory bills or ²²⁴ proceedings filed in chancery, or in the ecclesiastical Courts, or affidavits containing false and scandalous assertions against others. Therefore, if a man goes before a justice of the peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him, the plaintiff cannot have an action for a libel in respect of any matter contained in such articles, for the party preferring them ‘has pursued the ordinary course of justice in such a case; and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain, for fear of infinite vexation.

There is a large.collection of cases where parties have from time to time attempted to get damages for slanderous and malicious charges contained in affidavits made in the course of a judicial proceeding, hut in no one instance has the action been held to be maintainable; but the libeller may be punished, and the abuse repressed by prosecution for perjury, the result of which is to make the libeller infamous if he is convicted." 2 Addison on Torts, sec. 1092 (Wood’s Edition.) In Odgers on Libel and Slander, side page 193, it is stated that every affidavit sworn in the course of a judicial proceeding-before a Court of competent jurisdiction is absolutely privileged and no action lies therefor, however false and malicious may he the statement therein. The only exception is where an affidavit is sworn recklessly and maliciously before a Court that has no jurisdiction in the matter and no power to entertain the proceedings. The Court will order scandalous matter to be expunged, but even for such matter no action will lie. Kidder vs. Parkhurst, 3 Allen, (Mass.) 396, was an action for a libel on the plaintiff in a complaint made by the defendant against her for perjury.

The complaint was made to the grand jury. The Court says: ²²⁵ “It,” the complaint, “therefore, appears to have been made in the regular course of justice, and the decisions,, ancient and modern, are uniform, that no proceeding in a regular course of justice is to be deemed an acactionable libel.” In Seaman vs. Netherclift, L. R., 1 C. P. D., 540, Lord Coleridge, C. J., said “Now, a long course of authorities, of which perhaps the best known, as the most remarkable, is the case of Asfley vs. Younge, has decided that no action of nlander can be brought for any statement made by the parties either in the pleadings or during the conduct of the case. The law is so stated very clearly by Lord Eldon in Johnson vs. Evans, (3 Esp., 32); it is so stated also, not indeed with absolute certainty, in a note to the well known case of Hodgson vs. Scarlett, the author of which note, we learn from Baron Alderson in Gibbs vs. Pike, 9 Mees. & W., 358, to have been Mr. Justice Holroyd himself. But 1 conceive the law on this point to be now quite certain, although most men of any experience in the profession must have seen many instances in which judicial proceedings have been made by parties to them to serve the ends of private malignity.” In Henderson vs. Broomhead 4 Hurl. & N., 577, Crompton, J., laid it down that “no action will lie for words spoken or written in the course of any judicial proceeding;” and again, “The rule is inflexible, that no action will lie for words spoken or written in the course of giving evidence.” Where the cause of action against a defendant was, that he falsely and maliciously and without any reasonable cause, went before a commissioner for taking oaths in the Court of Chancery and swore an affidavit stating of the plaintiff', in his character of an auctioneer, that he conducted his business fraudulently and improperly, and that he was not, in the deponent’s ²²⁶ opinion, a fit and proper person to be intrusted with the sale of certain property then the subjéct of a suit in the Court of Chancery; and the Court, upon the evidence before it, decided that the plaintiff was not a fit and proper person to conduct the sale ; it was held that the affidavit, being made in the course of a judicial proceeding, could form no ground of action.

Revis vs. Smith, 18 C. B., 126; 25 L. J. C. P., 195. See also Astley vs. Younge, 2 Burr., 801; Townshend on Slander and Libel, sec. 221. These authorities, and others which might be cited, hold that statements made in any of the pleadings or proceedings in a cause before a Court having jurisdiction of the subject are absolutely privileged, even though made maliciously and falsely. This privilege, protecting against a suit for libel or slander, is founded upon what would seem to be a sound public policy which loots to the free and unfettered administration of justice, though as an incidental result it may, in some instances, afford an immunity to the evil disposed and malignant slanderer.

Whilst the appellee was not, in the literal sense of the term, a party to the case of Muir vs. Whiting and Company, he is none the less within the reason, the spirit and the policy-of the rule laid down and enforced by the decisions referred to. In this case it is not material whether the privilege invoked be considered an absolute or a qualified one, because the ruling of the Court below u.pon the first count of the narr. is correct in either event. If the privilege be an absolute one, no action can be maintained at all for the alleged libellous words ; and if, on the other hand, it be only a qualified privilege, that is, a privilege protecting the party using the words, provided the thing written has relation to the subject-matter undergoing judicial investigation, the action cannot be sustained, in this case, for the reason that every averment of the petition did have a most direct relation to the subject-matter ²²⁷ brought before the Court under that petition. The concession made by the demurrer that these statements were false and maliciously made does not render them actionable if the privilege be absolute, or if they be within the scope of a qualified privilege such as has been described.

Sow, both the appellant and the appellee were