is that in an examination before a magistrate, in a prosecution conducted in the name of the Commonwealth, the complainant is not to be regarded either as party or counsel, and so not entitled to the privileges of either. ... Upon this point the Court are of opinion that, when in the absence of the public prosecutor a complainant is acting as party or counsel in the management of a criminal prosecution before a magistrate, either as a matter of right or by permission of the magistrate, he is entitled to the same privilege as a party or counsel in other judicial proceedings.

2. Then the question recurs, What are those privileges? We can perceive no substantial difference between the case of counsel and that of a party. The privilege is extended to the counsel for the interest and benefit of the party, and to allow him full scope and freedom in the support or defense of the rights of the party. Nor can we perceive that it makes any difference if the words are uttered in the course of a trial, whether in form they are addressed to the witness or to the Court or jury. The remarks addressed to a witness, in the form of putting a question, reminding him of his duty or recurring to what he had before stated, indicating a contradiction in different parts of his testimony or calling upon him to show how he can reconcile them, though in form directed to the witness, are made in the hearing of the Court or magistrate, and may constitute a part of that comment upon the evidence which has a bearing on the result. Then we take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases is not whether the words spoken are true, not whether they are actionable in themselves, but (1) whether they were spoken in the course of judicial proceedings, and (2) whether they were relevant and pertinent to the cause or subject of inquiry.

And, in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in Court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel who naturally and almost necessarily identifies himself with his client may become animated by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved. And, if these feelings sometimes manifest themselves in strong invectives or exaggerated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated statement may be at once controlled and met by evidence and arguments of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exag

gerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit; and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness, or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions. For these views of the law, and for a more full discussion of the whole subject, we refer to the following English and American cases: Molton v. Clapham, March, 20; Astley v. Younge [ante, No. 999]; Hodgson v. Scarlett, 1 Barn. & Ald. 232; s. c. at Nisi Prius, Holt, 621, and notes; Padmore v. Lawrence, 11 Adolph. & Ellis, 380; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Mower v. Watson, 11 Verm. 536; Bradley v. Heath, 12 Pick. 163.

With these views of the law the Court are of opinion that the instructions prayed for by the defendant ought to have been given to the jury; and, as stated in the bill of exceptions, these instructions were guarded with sufficient care. . . . The [trial] Court having instructed otherwise, we are of opinion that the verdict must be set aside, and a new trial granted.

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1001. TORREY v. FIELD. (1838. 10 Vt. 353, 415.) REDFIELD, J... . This privilege, or immunity, for words spoken, extends equally to Parliamentary proceedings, proceedings in the State legislatures, and in Congress; to parties, witnesses, jurors, judges, and counsel, in courts of justice. . . . But the rationale of the rule, as applicable to private suitors, is not as readily perceived. It is said to have been adopted so that the poor, the humble, the unprotected and defenseless, might come fearlessly into the courts of justice, without being intimidated by the possible chance of being sued for libel or slander by one of such wealth, power, or influence as to make the contest too unequal to be hazarded. We could well suppose a condition of society, of such unequal relations of ranks and castes, as to require some such immunity to protect the humble against the mighty. But I must conclude that the rule, in its broadest extension, is more applicable elsewhere than here. The rule is, indeed, not a little creditable to the character of the Courts of that country from which we derive most of our precedents in jurisprudence; but it does seem to argue a state of society never to be too much deprecated. There is, in principle, no good reason why a suitor in court should be permitted to publish slander with impunity, more than any other one, except so far as he may honestly believe, on advice, is necessary for the redress of his wrongs and the obtaining of his just rights. But, as has been said, the rule is much broader than this. . . .

If the matter were res integra, we might be inclined to qualify this rule. But such is now the settled law. And it is a principle of long standing, and has not, in practice, been found the occasion of any great injury or wrong. . . . The

rule, as it exists in England, has been adopted in many of the American States, and we are not informed that, practically, any bad results have followed.

1002. MCLAUGHLIN . COWLEY. (1879. 127 Mass. 316, 319.) LORD, J. It was stated in the opinion of this Court in the recent case of Rice v. Coolidge, 121 Mass. 393, that it seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings; and that the same doctrine is generally held in the American Courts, with the qualification, as to parties, counsel, and witnesses, that their statements made in the course of an action must be pertinent and material to the case. The doctrine thus qualified was set forth by SHAW, C. J., in an elaborate opinion, in Hoar v. Wood [ante, No. 1000]. The qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice.

1003. JOHNSON v. BROWN. (1878. 13 W. Va. 71, 131.) GREEN, Pres. . . . The difficulty is not in determining that there is a class of absolutely privileged publications, but in determining the proper limits of this class. This question I shall not attempt to solve. The authorities I have cited, while they show clearly there is such a class, also show a great diversity of opinion as to the limits of this class. I shall confine my consideration to the question whether pleadings in a civil suit belong to this class in all cases, or whether, to bring them within this class, it is necessary that some other circumstance must coexist, such as the right of the court to take jurisdiction of the case in which the pleading is filed, or that the alleged libelous matter is relevant to the cause or be honestly believed to be relevant to the cause, or that it was published in reference to a party to the cause and not in reference to a mere stranger, or whether the cause in which such libelous matter appears in the pleadings must have been instituted bona fide, and not as a pretense to utter the libel.

(1) It has frequently been said that, to entitle the party to be regarded as absolutely privileged, the court in which he instituted the suit must have jurisdiction. . . . It seems to me that the weight of authority, as well as reason, is in favor of holding that no pleading filed in a court which has no jurisdiction of the subject-matter ought to be regarded as an absolutely privileged communication..

(2) The next inquiry is, To make out a case of an absolutely privileged communication, is it necessary that the pleading should be pertinent to the cause? The rule is laid down broadly [in the affirmative] in most of the English cases. . . . It seems to me that the public policy, on which is based this absolute exemption from suit for libelous matters contained in the proceedings or spoken in a regular course of judicial proceedings is not violated by the qualification that matter complained of must be pertinent, even though it be contained in the pleadings in the cause; and that the rule that it must be pertinent, which is applied to the words of counsel or to other proceedings in a case, to make them absolutely privileged, should also on reason and authority be applied to the pleadings of parties. . . .

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(3) We will now consider whether a libelous allegation, pertinent to the cause pending in a court having jurisdiction of the cause, ceases to be an absolutely privileged publication, if it be made in reference to a stranger not a party

to the suit. This question has rarely been directly brought to the attention of the Courts. . . . In my judgment, pertinent allegations in the pleadings in a judicial proceeding, whether they relate to parties to the suit or strangers, ought upon principles of public policy to be held as absolutely privileged publications, on which no action of libel can be based.

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(4) The only other qualification which has heen suggested, of the rule that libelous allegations, which are pertinent, contained in the pleadings in proceedings in the regular course of justice in a court of competent jurisdiction, are absolutely privileged publications, is whether such allegations are not actionable if the proceedings should have been resorted to merely for the purpose of conveying the scandal and as a cover for the malice of the party, and not in good faith for the assertion of a right or the redress of a wrong. . . . Till some case is brought before us, requiring us to decide this point, I deem it best to say nothing upon the subject. If in a pleading a party has inserted a scandalous matter which is impertinent to the cause, he is not, as we have seen, absclutely protected from a libel suit, but he is protected in such suit, if he shows that he had reasonable cause for believing, and did actually believe, that the allegations were pertinent to the cause. Proof of this would completely and conclusively rebut the charge of malice.

1004. LESCALE v. JOSEPH SCHWARTZ COMPANY

SUPREME COURT OF LOUISIANA.

116 La. 294, 40 So. 708

1906

APPEAL from Civil District Court, Parish of Orleans; WALTER BYERS SOMMERVILLE, Judge. Action by Dr. Joseph F. Lescale against the Joseph Schwartz Company, Limited, and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. A liquidator having been appointed to the Lescale Schwab Lumber Company, Limited, by the stockholders of that company, and this liquidator having obtained an order for the sale of all the property of the concern and advertised the sale, a petition was filed by the defendants in the present suit, twelve in number, the creditors of the company, to have the appointment of the liquidator declared to be null, and to have a receiver appointed to take charge of the affairs of the company. As reasons why the receiver should be appointed, allegations of mismanagement and misapplication of funds and illegal preference were made against the stockholders of the company, among whom was Dr. J. F. Lescale, the plaintiff in the present suit. Those allegations are now charged by plaintiff, Dr. Lescale, to have been false and libelous, and damages are claimed. An exception of no cause of action was sustained, and plaintiff prosecutes this appeal.

John Alonzo Woodville and Joseph Quintero Gowland, for appellant. Ernest Touro Florance, for appellees. . . .

PROVOSTY, J. The grounds of the exception are that material allegations are privileged and non-actionable, and that therefore, in order

to show a cause of action, plaintiff's petition should have negatived the materiality of the allegations, and that it has not done so. . . . ' The question in this case must, therefore, be as to whether it is true that in this State material allegations are privileged.

At common law by preponderance of authority they are. The rule on the subject is stated in the Am. & Eng. Ency. of L., vol. 18, p. 1024, as follows:

... "The prevailing rule in the United States is that statements made in pleadings or writings used in the course of judicial proceedings before a competent tribunal, though they are such as if used elsewhere would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry, but that such privilege does not extend to matter having no materiality or pertinency to the question involved in the cause or at least to matter which the defendant could not reasonably have supposed to be relevant."

The civil law rule is that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Pothier on Obligations, No. 116 et seq. Those are not the exact words of Pothier, but the language is derived from his text, and sums up his meaning. It is the language of Code Napoleon, art. 1182, and is reproduced from that code into ours. Article 2315. Hence in France and in this State it is statutory law. Some commentators on the Code Napoleon, notably Laurent (vol. 20, Nos. 412, 413), would enforce that article to the letter, regardless of the good or bad faith of the offending litigant or of the existence vel non of probable cause; but the Courts have tempered the rigor of the article. . . . From the foregoing review of our cases the admission must be made that our jurisprudence is in an unsatisfactory state on this question. But the general result may fairly be said to be that an allegation is not privileged unless founded on probable cause.

Why

Dealing with the question as if it were res nova. . . . The litigant who brings a suit without probable cause is held responsible in damages; and in France the responsibility is extended in precisely the same degree to the litigant who defends a suit without probable cause. should there be responsibility for bringing a suit, and yet none for making without probable cause an allegation in the suit? Will the law hold litigant answerable for the mere vexation or trouble he may cause his adversary by instituting a suit against him without probable cause and yet privilege him to destroy utterly the reputation of the same adversary without probable cause if only he does it by means of relevant allegations in a suit? We imagine not, and that, as much fo his allegations as for the suit itself, the litigant ought to show probable cause or else be answerable for the consequences. And, indeed, what greater degree of protection can a litigant possibly need? Can he complain. if he is debarred from making defamatory statements for the making of which he could not show probable cause? Can he with any show