Bartlett v. Christhilf

• Decision Date: 13 June 1888
• Citation: 14 A. 518,69 Md. 219
• Parties: BARTLETT v. CHRISTHILF.
• Court: Maryland Court of Appeals

14 A. 518

69 Md. 219

BARTLETT v. CHRISTHILF.

Court of Appeals of Maryland

June 13, 1888

Appeal from superior court of Baltimore city.

Argued before ALVEY, C.J., and BRYAN, MILLER, ROBINSON, STONE, and McSHERRY, JJ.

B Howard Harman, for appellant.

Andrew C. Trippe, for appellee.

MCSHERRY J.

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, 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 & Co. 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 libelous because they falsely and maliciously imputed to Bartlett a neglect of his duty as receiver, alleging 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 intrusted into 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 libelous are privileged. We have had before us this term cases ^[1] 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 of competent jurisdiction, such as defamatory bills or 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, but in no one instance has the action been held to be maintainable; but the libeler may be punished, and the abuse repressed, by a prosecution for perjury, the result of which is to make the libeler infamous if he is convicted." 2 Add. Torts, (Wood's Ed.) § 1092. In Odgers, Sland. & Lib. 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 be 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 v. Parkhurst, 3 Allen, 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: "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 actionable libel." In Seaman v Netherclift, 1 C. P. Div. 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 Astley v. Younge, [2 Burrows, 807,] has decided that no action of slander 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 v. Evans, It is so stated, also, not, indeed, with absolute certainty, in a note to the well-known case of Hodgson v. Scarlett, the author of which note we learn from Baron ALDERSON, in Gibbs v. Pike, [9 Mees. & W. 358,] to have been Mr. Justice HOLROYD himself. But I 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 v. 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 out 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 opinion, a fit and proper person to be intrusted with the sale of certain property then the subject 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 v. Smith, 18 C. B. 126, 25 Law J. C. P. 195. See, also, Astley v. Younge, 2 Burrows, 807; Townsh. Sland. & Lib. § 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 looks 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.

While the appellee was not, in the literal sense of the term, a party to the case of Muir v. Whiting & Co., 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 upon 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 libelous 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 brought before the...