Francis v. Wood

• Decision Date: 09 February 1886
• Citation: 75 Ga. 648
• Parties: FRANCIS et al. v. WOOD et al.
• Court: Georgia Supreme Court

75 Ga. 648

FRANCIS et al. v. WOOD et al.

Supreme Court of Georgia.

February 9, 1886

October Term, 1885.

An affidavit made before a magistrate, charging the defendant with perjury, and made for the purpose of causing his arrest will not furnish the basis of an action for libel, even if it be falsely and maliciously made.

( a. )Where such an affidavit has led to a prosecution, arrest and imprisonment, such prosecution being initiated and conducted maliciously and without probable cause, for each and all of these wrongs an action will lie.

( b. )Where an action was brought on several counts the first being for libel on account of an affidavit falsely and maliciously sworn out, charging the plaintiff with perjury, and the other counts being for malicious arrest malicious prosecution and false imprisonment, under the warrant issued on such an affidavit, the defendant might have demurred to the count based on the libel, but was not bound to do so; and a failure so to do would not amount to a waiver, or authorize a trial on that count.There was error in submitting the matters contained in this count to the jury, and in charging that they might find thereon; and a verdict which evidently resulted, in large measure, from this count, although it was in conjunction with others which were good cannot be allowed to stand.

Libel.Actions.Torts.Perjury.Malicious Arrest.False Imprisonment.Malicious Prosecution.Practice in Superior Court.Demurrer.Verdict.Before Judge CLARKE.City Court of Atlanta.December Term, 1884.

Reported in the decision.

HOKE & BURTON SMITH, for plaintiffs in error.

HAYGOOD & MARTIN; SPEAIRS & SIMMONS, for defendants.

HALL Justice.

The declaration contained four counts.One set out that defendant had libelled plaintiff in an affidavit sworn out before a magistrate, falsely charging her with perjury.The others were for malicious arrest, malicious prosecution and false imprisonment, under the warrant, which issued on this affidavit.Several defences were set up, and upon the declaration and pleas, and the evidence adduced on the trial the plaintiff recovered damages.A motion was made for a new trial, on various grounds, and was overruled.^[*]

It will be necessary to consider only a single question raised, and that is, whether an action for libel can be sustained for false charges of a crime, in an affidavit for a warrant, taken before a duly authorized and lawfully commissioned magistrate, having jurisdiction of the offense for which the warrant issues?The rule, as laid down by most of the text-writers, is that every affidavit sworn in the course of a judicial proceeding is " absolutely privileged," and no action for libel lies thereon, however false and malicious may be the statement made therein." So also are pleadings and instructions to counsel.So are articles of the peace exhibited against the plaintiff.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 proceeding."Odgers on Libel and Slander, edited by Bigelow, pp. 191, 192, 193, and citations in notes and illustration, fully sustaining the text founded on them.

" An action for defamation," says Addison (2 Torts§1092), " 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 ecclesiastical courts, or affidavits containing false and scandalous assertions against others.Therefore, if a man goes before justices 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.’Cutter vs. Dixon, 4 Co., 14b.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...