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ing to defendants on what is known as the is or what is not pertinent is made in Ruling Ozark property, and an eight-room house, the
Case Law, vol. 17, p. 336, as follows: two plants being one mile apart, were burned on the same night."
"As to the degree of relevancy or pertinency
necessary to make alleged defamatory matter The court sustained a demurrer to the com
privileged the courts favor a liberal rule. The plaint, and, as appellants declined to plead fur matter to which the privilege does not extend ther, a judgment was entered dismissing the must be so palpably wanting in relation to the action.
subject-matter of the controversy that no rea
sonable man can doubt its irrelevancy and imIt is alleged in the complaint that the libel.
propriety. In order that matter alleged in a
pleading may be privileged, it need not be in ous charge was published with malice, and that
every case material to the issues presented by it was false. All of the facts, including the
the pleadings. It must, however, be legitiwhole of the pleadings in the original action, mately related thereto, or so pertinent to the having been set forth in the complaint, a de
subject of the controversy that it may become murrer properly raises the question of the
the subject of inquiry in the course of the
trial." sufficiency of the allegations of the complaint
The complaint in the present case discloses to constitute a cause of action. The inquiry
the relevancy and pertinency of the alleged narrows down to the question whether or not the publication of the alleged libelous matter
libelous statements. The purpose of the orig was absolutely privileged.
inal action was to cancel a lease on account of
a breach or breaches of contract alleged to There are two classes of privileged commu- have been committed by appellee. In the nications recognized in the law governing the answer appellee, as the defendant in that acpublication of alleged libelous matter. One of tion, denied the breach of the contract on his these classes constitutes an absolute privilege,
part and alleged that the delay in the performand the other a qualified privilege, and, accord ance of the contract had been caused by acts ing to the great weight of authority, pertinent
of appellant, among other things, the burning and relevant statements in pleadings in judi- l of the plant erected for the purpose of wash. cial proceedings are held to be within the first ing of diamond-bearing dirt. The allegations ciass mentioned, and are absolutely privileged.
of the answer, including the allegation now The authorities are not entirely free from con
under consideration, presented issues in de flict. There are a few cases holding that state
fense to that action, and were pertinent and ments in pleadings, whether pertinent and rele.
relevant to the issues involved. vant to the issues involved, are absolutely privileged, and there are also a few cases
The alleged statement was therefore abso which hold that pertinent and relevant state
lutely privileged, and the court was correct
in sustaining the demurrer to the complaint. ments in pleadings are privileged on condition
Affirmed. that they are made without malice, but according to the great weight of authority, as before stated, pertinent and relevant statements in NOTE-Defamatory Statements in Pleadings pleadings are absolutely privileged. The test
Given Currency in Newspapers.-It seems well
settled that any statement in a pleading, if relas to absolute privilege is relevancy and per
evant to an issue in a case, though false and matinency to the issue involved, regardless of licious, is absolutely privileged, but this is not the truth of the statements or of the existence
so as to its repetition by another or its publica
tion in newspapers. The reason for the absolute of actual malice, 17 R. C. L. p. 335; case note privilege above spoken of, is well explained in to Kemper v. Fort, 12 Ann. Cas. 1022; 13 L. Kemper v. Fort, 219 Pa, St. 85, 67 Atl. 991, 13 R. A. (N. S.) 821; Myers v. Hodges, 53 Fla.
L. R. A. (N. S.) 820, where there is a very thor
ough discussion of the subject and much cita197, 44 South. 357; Gaines v. Aetna Ins. Co., tion of authority extending back to common law 104 Ky. 695, 47 South. 884; Abott v. National days. Bank of Commerce, 20 Wash. 552, 56 Pac. 376; But it is different as to a newspaper underGardemal v. McWilliams, 43 La. Ann. 454, 9
taking to publish to the world what is charged South. 106, 26 Am. St. Rep. 195; McGehee v.
in pleadings. There is here no rule of public
policy to be enforced, such as that, though "the Insurance Co., 112 Fed. 853, 50 C. C. A. 551.
privilege of immunity for false and malicious The following statement of law as to the
averments in pleadings is abused,” yet "the right
of appealing to the civil tribunals is more extenliberality of the courts in determining what I sive than the right of appealing to the crim.
inal tribunals," if one libelled should seek vindi ITEMS OF PROFESSIONAL cation. Kemper v. Fort supra.
INTEREST. As to publication it is said: “It is not open to dispute that a fair report in a newspaper of pending judicial proceedings is proper.” Lundin | RECENT DECISIONS BY THE NEW YORK v. Post Pub. Co., 217 Mass. 213, 104 N. E. 480,
COUNTY LAWYERS ASSOCIATION COM. 52 L. R. A. (N. S.) 207. But it was said by Holmes, Judge, that this principle has "no appli
MITTEE ON PROFESSIONAL ETHICS. cation whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court
QUESTION No. 185. Knowledge of them throws no light upon the ad Bond; Guaranty; Relation to Other Attorministration of justice. Both form and contents neys; Relation to Third Persons--Accepting depend wholly on the will of a private individual
bond to guarantee fidelity of lawyer-when un who may not be even an officer of the Court. It would be carrying privilege further than we
desirable.-If it is contrary to the essential dig. feel prepared to carry it, to say that, by the easy nity of the profession for a lawyer to give, or means of entitling and filing it in a cause, a suf permit another to give, a bond for him, condi. ficient foundation may be laid for scattering any
tioned on his fidelity, can a lawyer who accepts libel broadcast with impunity," Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318.
such a bond on another, knowing that the soIn Meeker v. Post Print, & Pub. Co., 55 Colo.
called bonded lawyer is acting contrary to the 355, 135 Pac. 457, the defendant was charged with essential dignity of his profession, be held guiltpublishing charges set forth in a complaint and
less of a breach of ethics? certain affidavits filed in a civil suit, the publication being before any action had been taken on
ANSWER No. 185. them. The Court says: “It appears to be conceded that the publications were in no sense
This Committee has heretofore in answer to privileged," and several cases, among others the specific questions expressed the opinion that it Pulsifer case, were cited in support of this rul detracts from the dignity of the profession for ing.
a lawyer to enter into an arrangement either In Park v. Detroit Free Press Co., 72 Mich.
with a collection agency or a law list for the 560, 40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544, it was said: “One of the reasons why
guaranty by them of his faithfulness in remit. parties are privileged from suit for accusations ting commercial collections committed to his made in their pleadings is that the pleadings are
charge. The use of such baits by lay agencies addressed to Courts where the facts can be fairly
as a means of securing business for themselves tried, and to no other readers. If pleadings and other documents can be published to the world by is to be condemned, and therefore, as this Com. anyone who gets access to them, no more effectual mittee has previously held, such guaranties of way of doing malicious mischief with impunity
honesty by lawyers tendered to the public to be could be devised than filing papers containing false and scurrilous charges, and getting those
used in the solicitation of business are to be printed as news. The public have no rights to
condemned. Since, in the opinion of the Comany information in private suits till they come mittee, it is contrary to the essential dignity of up for public hearing or action in open Court, and
the profession for a lawyer to give or to perwhen any publication is made involving such matters, they possess no privilege, and the pub
mit another to give a bond conditioned on his lication must rest on either non-libelous char
fidelity under the circumstances above stated, acter or truth to defend it. A suit thus brought it is, in its opinion, also undesirable for a with scandalous accusations may be discontinued
lawyer to accept such a bond under the same without any attempt to try it, or, on trial, the case may entirely fail of proof or probability. The
circumstances. law has never authorized any such mischief."
In giving the foregoing answer, the CommitThe requirement that the matter must first be acted upon by the Court before it can be pub
tee has confined itself to the class of cases lished broadcast was very technically enforced which it has heretofore considered and in which as regards a grand jury report containing an a collection agency or a law list derives an ad attack on a public officer. It was said that in
vantage from the guaranty of the faithfulness applying the rule that there must be a fair report published of judicial proceedings that: "In
of a lawyer in remitting commercial collections applying this general rule discrimination is nec committed to his charge through their agency. essary and we observe: (1) That libelous impu The question, however, is predicated upon a tations in a grand jury's report upon private citi
hypothesis which is broader than any previous zens, or upon public officers not touching their fitness for office or their fidelity to the public
statement of the Committee's opinion. If the service, or the propriety of their official acts, are | hypothesis of the question is to be deemed lim. not properly matters of public interest; (2) that
ited to the cases in respect to which the Comthe privilege does not attach at all until the report
mittee's previous opinions have by their terms has been duly published by the grand jury itself in open Court." Parsons v. Age-Herald Pub. Co.,
been strictly confined, the foregoing answer is, 181 Ala. 439, 61 So. 345.
I in the opinion of the Committee, an adequate reply to the question; but if the question un. | plain intendment of any decree or order of disdertakes to assume, as it apparently does, that barment. It cannot be doubted that disbarment there is no situation in which an attorney can is always and everywhere intended to deprive properly submit to the guaranteeing of his the disbarred attorney of the right to practice fidelity, then the Committee does not admit law, and even if the disbarred attorney be emthe truth of the hypothesis and consequently ployed to render such services only as may not could not follow it to its logical conclusion. constitute "the practice of the law," yet there
There are many relations in life in which the is in every such case the danger and likelihood guaranty of fidelity is an essential feature of that he will, under cover or cloak of such emthe relationship--such as the bonding of execu ployment, perform such other services, either for tors, adminitstrators, receivers, assignees for luis employer or for his own account, as under the benefit of creditors, employes or appointees any construction of the law đo constitute such of the Federal Government, officers of private practice. corporations, etc. In these cases the fact that the incumbent is a lawyer is not recognized as a reason why he should be exempted from com. MEETING OF THE VIRGINIA STATE BAR plying with the rules which have been adopted
ASSOCIATION. out of precaution for indemnifying against infidelity. The Committee is not of the opinion The enthusiasm of those who attended the that in such cases lawyers should be regarded recent meeting of the Virginia Bar Associaas an exempt or privileged class.
tion was of the kind that “raises the roof." From all the accounts which have been sent to
us, no business of any consequence was transQUESTION No. 186.
acted, but there was a real feast of reason Disbarred Attorney, Relation to Other Attor.
and a flow of soul which was greatly enjoyed neys, Relation to Court-Employment of dis
by those who attended the meeting of the As. barred attorney by another attorney-Disap
sociation May 11, 12 and 13, 1920, at Richmond, proved.-A. Can attorney who has been dis
Virginia. The intellectual fireworks were supbarred by the courts from practising law assist
plied by Hon. Randolph Harrison, President of another attorney, not disbarred, in preparing
the Association; Vice-President Thomas R. Marpapers, either complaints, answers or other legal
shall and Senator W. Atlee Pomerene, of Ohio. documents, for or without remuneration ?
Even Henry St. George Tucker, so well known B. Is the attorney who employs the disbarred
to lawyers who attend the meetings of the attorney guilty of unprofessional conduct?
American Bar Association, forgot his dignity ANSWER NO. 186.
and called the delegates to their feet to cheer In the opinion of the Committee:
the words of the vice-president urging a move G) The right of the disbarred attorney to 1 ment of the people "back to the Constitution." perform the services described in the question | Mr. Tucker is a candidate for the Democratic depends upon the construction of laws which nomination for governor in Virginia this year probably vary in different jurisdictions (e. g.
and has adopted that slogan for his platform. in New York, upon a construction of Section 88 It was at this meeting that the Vice-PresiJudiciary Law. See People v. Alfani, 227 N. Y., | dent gave voice to the criticism of the Eight334; People v. Title G. & T. Co., 227 N. Y., 366). / eenth Amendment which featured the news This Committee does not undertake to pass columns of the daily papers a few weeks ago. upon such questions of construction.
1 In that connection he said: (b) If, as a matter of law, the disbarred at- "I don't see,” he declared, “that Washington torney is forbidden to render the services de
has any right to dictate the morals of Virginia, scribed in the question, then it is clearly im.
It seems to be that every state is abundantly
able to take care of itself, and none should improper for the practising attorney to employ i pose its will in a matterof this sort on any him for their performance. And, as a matter other. I am a teetotaler, too. But this is one of professional propriety, the employment, by
of the 'altruistic evils' that the country has
been heir to through the years. Those behind an attorney in good standing, of a disbarred at
the movements probably have the best of motorney to perform any duties that lie in a doubts tives, but their work, to my mind, is not for ful zone between practising law and not practis. the good of the country. ing law (including the duties specified in the
"So far as I am concerned, I pray God that
no man will ever again take a drink of inquestion), should, in the opinion of the Commit
toxicating liquor, but the states should handle tee, be disapproved because such employment this question, rather than for Washington to tempts and conduces to the violation of the legislate for the morals of the nation. II
secret vote had been taken on that amendment | formed, and the statement proved to them that behind closed doors, it wouldn't have received the railroads and their employes are to be the twenty votes in the United States Senate."
servants of the people and not the masters." The Vice-President also attacked the tendency
The Senator closed his address with a lucid toward pure democracy which he said was the | discussion of the labor problem on the railmost dangerous tendency of modern times.
roads and its remedy. “When the American “The people ought to have sense to know," said people rise up, and they will rise up, the would. the Vice-President, "that they are not capable
| be autocrats of the country, whether they be en masse to rule the country. They must se
laborers or capitalists, will be thrown off as lect capable men to do it and leave them the billows of the ocean casts away the flotsam alone. If I am sick, I go to the doctor. If and jetsam that rides on its waves," he conhe tells me I have appendicitis, I do not re cluded. fer the matter to the plumbers' union. This Hon. Randolph Harrison, of Lynchburg, de. union may know much about pipes, but they
livered the President's address, his subject be do not know as much about my pipes as a good ing "The Monroe Doctrine; Its Origin, Mean. surgeon.”
ing and Application.” Mr. Marshall declared that we must pre The newly-elected officers of the Associa. serve the representative character of our gov tion are as follows: Armistead C. Gordon, of ernment at all hazards and prevent intermed Staunton, President, and John B. Minor, of dling with government affairs by small groups Richmond, Secretary. of laymen who have special reforms to put over. He ridiculed the recall of judges, the referendum, the initiative, the popular primaries and every other tendency toward a
BOOK REVIEW. pure democracy as pure farce. He thought the people were beginning to understand that they
JAY'S WAR AND PEACE. were incompetent to express an intelligent opinion on such matters and were disposed to The republication of Jay's famous essay on return to the old paths. In enlarging upon War and Peace: The Evils of the First and a this idea, Mr. Marshall said:
Plan for Preserving the Last, will be regarded
by many as a most valuable contribution to the "In some states they seem to have no other occupation than that of voting. When I last
present needs of the world. This essay was visited the City of Seattle they had apparently published in 1842 by William Jay, son of John set up ballot boxes in place of the saloons. In. Jay of revolutionary fame. Mr. Jay was a stead of taking a drink as they went down
strong advocate of peace and one of the eartown, residents of Seattle stopped on the cor
liest statesmen who contended for the substiner and dutifully cast a ballot. They told me of the plan and asked my opinion. I told them
tution of arbitration for war. And in this reit might be all right, but I thought they should spect he was the first who contended that queshave two mayors, in order that one might tions of so-called honor must be submitted to serve while the other was being recalled."
the same arbitrament; in fact, a large part of Senator Pomerene's address was on the sub
his essay is taken up with the effort to prove ject of “Some Recent Railroad Legislation."
at the term, "questions of honor,” is simply .. The speaker began his discussion of the new cloak to cover the selfishness, passion and obstitransportation act that has recently been nacy of nations and those who represent them in passed by Congress. He took up each fea international negotiations. National honor is ture of the bill in detail and explained fully always at stake when one nation demands that with both technical and common terms the which the other nation refuses to give. "A ideas embodied in what he termed as “the first mere blustering letter by one diplomat to anpiece of constructive railroad legislation in the other may, if the controversy is fanned into history of the country."
a flame, be a question of honor,” says Mr. Jay, Amid a thunder of applause he denounced "on account of which two Christian nations the power in the hands of labor to tie up the must commence the work of human butchery." country with nation-wide strikes of railroad The author is an enthusiast for peace, and employes. "The American people are not eas. finds no justification for war except on the ily aroused,” he declared, “but they can be part of those who resist invasion. He is oparoused, and in my opinion the next railroad posed to all standing armies, and contends that strike that affects the nation as a whole will costly armament is not only an unjust burdep arouse them, and labor and capital will be in- I on the people, but a continual incentive to war
“The ruin of almost every republic," he de- became a member of the Court of Errors and clares, “that has been blotted from the list of Appeals, he reached just the opposite conclunations may be ascribed to the military spirit sion," to show "how liable one is to err in the fostered by its citizens." He discusses the law by following first impressions of the jus. work of the great conquerors of history, yet | tice of a case." finds that they have done little but to enslave While not so stating, in so many words, mankind. For each one he would indite but you indicate that both opinions cited by you one epitaph:
are by the same man. Not so. The first is “He left a name at which the world grew pale, by Henry C. Pitney, Vice Chancellor, and the To point a moral, or adorn a tale.”
second and later one is by his son, Mahlon To those who contend that war is an inevit
Pitney, then an Associate Justice of the New able evil that will continue until the end of | Jersey Supreme Court, and now Mr. Justice time, Jay replies that "it would be an impeach
Pitney of the United States Supreme Court. ment of divine economy to suppose that an evil
Yours truly, so dreadful was inseparably and inevitably
C. F. Wilson. connected with human society." With remark
Morristown, N. J. able foresight the author looks forward to the
[We thank our correspondent for calling our day when there shall be a League of Nations attention to our mistake in confusing Viceto enforce peace. This prophecy is all the Chancellor Pitney with his son, Justice Pitney.
It is not fair to blame the son for the errors more remarkable since in 1848 there had been
of the father.--Ed.] no attempts even at arbitration of international disputes. On this point Mr. Jay says:
“We have no hesitation in avowing our belief that, under existing circumstances, the
HUMOR OF THE LAW. idea of a congress of nations for the extinction of war, is utterly chimerical. But both reason and experience warrant the hope that some one He was a strapping six-footer, but confused nation may set an example which, through the the office of the doctor with that of the lawyer, blessing of Providence, may be made instru- | Approaching the young lady attendant, he said: mental in ushering in the reign of universal "Are you the mandator?" peace. But by whom and in what manner, "Sir,” she replied, with scorn, but further it will be asked, is this example to be set? It | rebellion was prevented by the young lady in may be a feeling of national vanity, and it may the law office overhearing the confab and in a be an inference from the peculiarities of his very gentle voice, with a sort of a "Come and tory, position, and institutions that leads us to see me smile,” she said: hope that to the United States will be reserved "Please step this way." the happiness and glory of teaching to man. The doctor's young lady attendant is still kind the blessings of peace and the means of | wondering. securing them."
This old essay is very readable and is worthy A lawyer was pressing his suit; of its new dress and the new circle of friends In one-piece blue denim he rose. which it will no doubt make.
When the Judge, who was wise and astute, Printed in one volume of 69 pages, and pub Said, “You can't make a suit out of those." lished and circulated by the Carnegie Endowment for International Peace, Washington, | But the lawyer just murmured, “Oh, fudge! D. C.
Your humor would give one a pain;
But I can see through it quite plain."
"Rather a spicy case is being tried in one
of the local courts." A CORRECTION.
“A 20-minute kiss is featured." Editor, Central Law Journal:
"Demonstrated, you say?" In your issue of May 28, 1920, Vol. 90, No. “No; merely tossed to and fro by the op 22, at page 388, you say: "Justice Pitney, then posing lawyers, but some of those chaps are Vice Chancellor of New Jersey, declared,” etc., wonderful word painters."-Birmingham Age "and in a later case, when Mr. Justice Pitney | Herald.