Hart v. Baxter
| Decision Date | 26 October 1881 |
| Citation | 47 Mich. 198,10 N.W. 198 |
| Court | Michigan Supreme Court |
| Parties | HART v. BAXTER. |
Statements in an affidavit made in support of an answer to be used in opposition to an application for an injunction are privileged, provided they are not irrelevant and impertinent.
When therefore a bill was filed by a mortgager to reform the mortgage, and the bill charged an agent of the mortgagee with fraud in connection with the drafting of the mortgage, and the agent made his affidavit in support of the answer, and averred therein that the charge of fraud was wilfully and maliciously false, held, that an action counting on these words as a libel would not lie.
The affidavit of one defendant may properly be used in support of the answer of another, in resisting an application for an injunction.
Error to Ingham.
M.V. & R.A. Montgomery, for plaintiff in error.
S.S Olds, for defendant in error.
This is an action on the case for an alleged libel. It appears that Hart and others had borrowed money of one Hatch, residing in Vermont, and had given to him a real estate mortgage to secure the repayment. Baxter acted for Hatch in the negotiation, and drew the mortgage. A clause was contained in the mortgage which required the mortgagors to keep the buildings on the premises insured for the protection of the mortgagee, and permitted the mortgagee, in case of failure to procure insurance and proceed upon the mortgage for the collection of the premiums paid. Default having occurred, the mortgagee procured insurance, and then commenced foreclosure by advertisment for the sums paid to obtain it. The mortgagors then filed their bill against Hatch and Baxter to enjoin the foreclosure, and to reform the conveyance alleging that it was never agreed that they should keep the buildings insured, but on the contrary it was understood by all parties that the lands if all buildings were burned would be ample security for the sum loaned, and that the insurance clause was in the mortgage through the fraud of Baxter and the inadvertence of the mortgagors in overlooking it. This bill was sworn to by Hart. Hatch filed his answer denying on information and belief all the allegations upon which complainants relied for relief. Attached to this answer was an affidavit by Baxter which denied in detail the equity of the bill; averred that the insurance clause in the mortgage was distinctly agreed upon, and that Hart's statements in the bill of complaint in this particular "are wilfully and maliciously false,...
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Shattuc v. McArthur
... ... in a court of justice are privileged, provided they are not ... irrelevant and impertinent. Hart v. Baxter, 10 N.W ... 198. And the statements contained in an affidavit presented ... to a superintendent of schools for the purpose of preventing ... ...
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Mundy v. McDonald
...See, also, Schultz v. Huebner, 108 Mich. 274, 66 N. W. 57; Hall v. Munger, 5 Lans. (N. Y.) 100. In the early case of Hart v. Baxter, 47 Mich. 198, 10 N. W. 198, Mr. Justice Cooley refers to the case of McLaughlin v. Cowley, 127 Mass. 316, for a clear statement of the general rule. It is the......
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