The principle of law involved in this defence does not seem to be very clearly settled. After reviewing the cases on this subject, Starkie, (Treatise on Slander, 193,) lays down the broad rule that “ No action can be maintained for any thing said or otherwise published in the course of a judicial proceeding, whether criminal or civil; though for a malicious and groundless prosecution an action and perhaps an indictment may be supported, founded on the whole proceeding.” This court, in the case of Ring v. Wheeler, (7 Cowen, 725,) adopt the rule of law laid down in Buller’s N. P. 10, that the defendant may justify by shewing that the words were spoken by him as counsel, (and the party has the same defence,) and were pertinent to the matter in question.
In this case, as I understand it, the words charged were pertinent to the matter in question, because they were the reiteration of the charge specified in the complaint to which the defendant had made oath. The whole' of this case is resolved into the question of fact, were the words spoken in the course of a judicial proceeding 1 The parties were before the magistrate; the plaintiff had been brought there on a warrant issued on a charge preferred against him by the defendant under oath ; the justice had furnished him with the written complaint against him, and he was perusing it when the defendant entered, and was interrogated by the plaintiff on the subject of the charge he had made against him. Under these circumstances, the defendant might have believed that the magistrate was proceeding on his complaint, and as the plaintiff had been brought in to answer to it, he might have supposed that the plaintiff had a right to question him, and that it was his duty to answer. When an appeal was thus made to him as to the truth of the charge in presence of the justice to whom it had been preferred, and who had the matter before him, silence, he might well suppose, would excite suspicion, and subject him to the imputation of shrink
There was not probably a trial, strictly speaking, going on in court at the time the words were uttered, nor was that necessary in order to make the defence available. The proceedings on the complaint do not appear to have been brought to a close; the matter of the complaint was then pending before the magistrate to abide his further order. In my judgment, the question of fact whether the words were spoken in the course of the proceeding upon the complaint made by the defendant, or under such circumstances that the defendant had reason to believe, and did in good faith believe that it was necessary for him then to repeat the charge contained in his complaint, should have been distinctly submitted to the jury.
A new trial ought therefore to be granted, for the misdirection of the judge.
New trial granted.