Hart v. Baxter

Cooley, J".

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 Yermont, 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 pro *200 ceed upon the mortgage for the collection of the premiums paid. Default having occurred, the mortgagee procured insurance, and then commenced foreclosure by advertisement 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, without the least shadow of truth whatever.” The object in attaching this affidavit to the answer of Hatch appears to have been to oppose an application for a preliminary injunction, and it was made use of on such an application the day succeeding the filing.

The alleged libel consists in the charge above quoted from Baxter’s affidavit. On the trial the circuit judge held that the statements in the affidavit were privileged; and directed a verdict for the defendant. It is contended in this court that the affidavit performed no office in the case, and for that reason was not entitled to privilege. But this is plainly erroneous. ' For the purpose of meeting an application for an injunction it was proper to make use of affidavits; and the practice which was adopted in this case is not uncommon.

It is further contended that the charge of falsehood contained in the affidavit is libelous even in a privileged paper, because it was unnecessary in the case, and must be treated for that reason as would be any irrelevant or impertinent *201 matter. But what was said was certainly not irrelevant; it concerned the very substance of the controversy between the parties. Hart under oath charged Baxter with fraud, and Baxter met the charge by asserting that Hart’s charge was false. Whatever form of words he made use of, it was necessary to make this assertion, at least in substance. Undoubtedly Baxter made use of epithets which were needless and added no force to his statements, but he said nothing that was irrelevant; and the privilege was not lost by the excess. Marsh v. Ellsworth 50 N. Y. 311 ; Dunham v. Powers 42 Vt. 1 ; Hoar v. Wood 3 Metc. 193 . The limit to the privilege is accurately stated in the case last cited, that what is said must have “relation to the cause or subject-matter of the inquiry,” p. 197. If it does, the publication is absolutely privileged, even though the defendant may have indulged improper motives. Lea v. White 4 Sneed 111 , 114. We refer for a clear statement of the general rule to McLaughlin v. Cowley 127 Mass. 316 .

The judgment must be affirmed with costs.

The other Justices concurred.