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Hastings v. Lusk.

reference to the contradictory evidence which he intended to give in the cause, or which he already had given. If so, what he said was relevant, although perhaps not said at the right time. I am satisfied, therefore, that there is no law, either ancient or modern, which affords complete protection to parties or counsel, so as to bring the language used by them in the course of judicial proceedings within the second class of privileged communications which I have stated, except where the words complained of as slanderous were relevant or pertinent to the question to be determined by the court or jury.

There may be cases which properly belong to the first class of privileged communications, arising in the course of judicial proceedings. Parties and even counsel sometimes misjudge as to what is relevant and pertinent to the question before the court, and especially parties who are not much acquainted with judicial proceedings; and it may be very proper in such cases to leave it as a matter of fact for the jury to determine, whether the words were spoken in good faith, under a belief that they were relevant or proper, or whether the party using them was actuated by malice and intended to slander the plaintiff. The case of Allen v. Crofoot, 2 Wendell, 516, appears to be a case of this kind, for it is evident that the words spoken were not relevant in the judicial proceeding, or pertinent to any question then before the court. But as circumstances showed that the defendant either supposed he was bound to answer the question, or that it was relevant and pertinent to the proceedings, I think the court very properly decided that it should have been left to the jury to determine whether the defendand acted in good faith supposing it was relevant and proper to answer the question put to him by the plaintiff, although he had not yet been sworn as a witness on the examination of the complaint which he had previously made on oath, or whether he was actuated by malice. In cases belonging to that class of privileged communications, malice in fact may be inferred from the language of the communication itself, as well as from extrinsic evidence. Wright v. Woodgate, 1 Gale's R. 329.

Hastings v. Lusk.

But though the slanderous words were spoken in the course of a judicial proceeding and were relevant and pertinent to the matter in question, or the defendant may have used them in good faith supposing them to be pertinent, without actual malice or any intention of slandering the plaintiff, yet if these facts do not appear from the pleadings or the finding of the jury, it will not aid the defendant upon a motion in arrest of judgment. On such motion the court cannot know that the slanderous words were pertinent, or that the plaintiff did not satisfy the jury that they were not only impertinent to the matter in question before the court, but also that the defendant spoke them with a malicious intent, for the mere purpose of defaming the plaintiff and wounding his feelings. Such is the effect of the decision of the supreme court both in the case of M' Claughry v. Wetmore, 6 Johns. R. 82, decided nearly thirty years ago, and in the more recent case of Ring v. Wheeler, to which I have before referred.

Each of the counts in the plaintiff's declaration in this case contains more or less slanderous expressions, imputing the crime of perjury, in language which prima facie could not have been pertinent to any question before the court, for it does not appear to have been addressed to the court but to the plaintiff himself, who was a witness there: and if the defendant used all the abusive language towards or in reference to the witness which is stated in either of those counts, although some of it might have been relevant to the matter in question, no jury could hesitate in coming to a correct conclusion whether that which was not pertinent was uttered in good faith or with a malicious intent to defame the plaintiff; although the defendant must have proved that he had great provocation to excuse all this harsh language, or no honest jury could have given a verdict of only six cents against him.

The defence in this case is set up by several special pleas in addition to the general issue; and the objection urged by the third point of the plaintiff in error is, that although the declaration may have been prima facie sufficient, the replications are bad, and sufficient is admitted upon the whole

Hastings v. Lusk.

record to constitute a good defence. On the other hand it is urged, that if there are any material issues the pleas are bad, and as the defendant committed the first fault in pleading, it is not a case for a repleader. I have examined the special pleas particularly, and think either of them would have been held good upon general demurrer, if I am correct in the conclusion at which I have arrived as to the law of the case. It is expressly stated by Mr. Justice Buller, that the defendant, may by way of justification plead that the words were spoken by him as counsel in a cause and that they were pertinent to the matter in question, or he may give them in evidence under the general issue, for they prove him not to have been guilty of speaking the words maliciously. Bull, N. P. 10. See also Lord Cromwell's case, 4 Coke's R. 14. The two first special pleas, therefore, showing that the slanderous words stated in the declaration were spoken by the defendant in the judicial proceeding, while conducting his own defence without counsel, and that they were pertinent to the matter in question, constituted a good bar to the action, as they brought the case within the second class of privileged communications which I have noticed. To each of these pleas there were two replications, (as athorized by the revised statutes upon a special application to the court,) each of which replications was a good answer to the plea: one replication traversed the fact that the words spoken were either pertinent or material to the matter in question, and the other taversed the allegation in the plea that the words were used by the defendant in the matter in question before the justice, while conducting his defence therein; and as the jury found a verdict for the plaintiff on all the issues, neither of those pleas can aid the defendant. In the last special plea the defendant, in addition to the facts stated in the two preceding pleas, also averred that the words were spoken without any malice towards the plaintiff, and therefore, if I am right in supposing that a party is not answerable for words innocently spoken by him in conducting his defence in a judicial proceeding, and without malice, although they may not have been strictly pertinent, perhaps a replication merely denying the pertinency of the

Hastings v. Lusk.

words would not have been a sufficient answer to this plea. The first replication to this special plea does, however, in substance, put in issue the question of malicious intent as well as the pertinency of the slanderous words, although the malice is only stated by way of inducement to the traverse of the malicious intent. As that part of the replication directly negatives the allegation in the plea which it was material to negative in connection with the traverse of the pertinency of the slanderous words, its effect, after verdict, must be different from the case of a replication which merely sets up new matter as inducement to the traverse and then traverses an immaterial allegation in the plea, leaving that which was most material unanswered. It is in this case at most but a misjoining of the issue, which is cured after verdict; and the jury have found in terms, in reference to this issue, that the words were spoken falsely and maliciously, and that they were not pertinent and material. Again: the second replication to this plea is a full answer to it, even if the first replication is stricken entirely out of the record; and upon the last replication the jury have found that the slanderous words were not uttered by the defendant while conducting his own defence on the examination before the justice, as alleged in his last special plea.

For these reasons I think the supreme court were right in refusing to arrest the judgment, and that their decision should be affirmed.

The court being unanimously of the same opinion, the judgment of the supreme court was accordingly AFFIRMED.

POST US. PEARSALL.

The public have not the right, against the will of the owner, to use and occupy his soil adjoining navigable waters, as a public landing and place of deposit of property in its transit to and from vessels navigating such waters, although such user has been continued upwards of twenty years with the knowledge of the owner.*

ERROR from the supreme court. This was an action of trespass quare clausum fregit, brought by Pearsall against Post, for entering upon the land of the plaintiff, prostrating his fences and depositing a quantity of manure. The defendant pleaded non cul. and gave notice with his plea that he would give in evidence in bar of a recovery, that at the time when, &c. and long before there was and had been, on the close of the plaintiff, a common

The supreme court held, when this case was before them, that the doctrine of dedication of highways, streets and other easements in nature of public ways, did not extend to public landings. The judgment of that court was affirmed in the court for the correction of errors. Opinions were delivered by five of the members of the court: four for affirmance and one for reversal of the judgment of the supreme court. The CHANCELLOR and Senators EDWARDS and LIVINGSTON held that the principle of dedication of highways and of streets and public squares in cities and villages did not extend to public landings, and therefore they were in favor of affirming the judgment below. Senator VERPLANCK, although concurring in the judgment of affirmance, held that the principle of dedication of highways and streets applies to every use or easement in land, which can be of any ser vice, convenience or pleasure to the community at large, and that consequently public landings are the subjects of dedication. He however further held, that user alone, though admissible as evidence in corroboration of other proof of actual dedication by the declarations or acts of the owner of the soil, is not enough in itself to warrant the presumption of a dedication of easements, other than of highways, streets, and places in nature of public ways. Senator FURMAN agrees with Senator Verplanck as to the extention of the principle of dedication; but goes farther and holds, that proof of a continued user by the public of the soil of another for the term of twenty years, for any beneficial purpose, with the knowledge of the owner, is sufficient to warrant the presumption of a dedication, unless rebutted by evidence on the part of the owner that the use was permitted by mere license revocable of course at the will of the owner, or by other evidence showing the absence of intention on his part to dedicate the land to public use, so as to deprive himself of the power of revocation.

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