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credited to the shares as the by-laws may pro- | er's right to this balance is a credit, or that the vide. But these sums are all capable of ascer- balance is " money due to the defendant" subtainment and are ascertained by the trustee's ject to be taken by trustee process. Pub. Stat. answer. The statute provides that the share- chap. 183, §§ 21, 25; Gray v. Bennett, 3 Met. holder "shall be paid the balance" thus ascer- 522, 526. tained. We are of opinion that the sharehold- Trustee charged.

TEXAS SUPREME COURT.

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3. A count in a petition for libel, based on a newspaper publication repeating statements made in a bill for injunction, etc., is insufficient, where it does not lay any basis for damages as to amount resulting from this publication alone, but is connected and blended with the alleged wrong of publishing by the filing of the bill in court, and the prayer is for $10,000 on account of "the several grievances aforesaid." There being no cause of action on account of the pleading in court, and the two claims being blended, there is no guide for a verdict as to the newspaper publication

alone.

(February 5, 1889.)

APPEAL by plaintiff, from a judgment of the District Court of Galveston County in

favor of defendants in an action to recover damages for the alleged publication of a libel. Affirmed. (Commissioners' decision.)

Statement by Collard, C.:

This is a suit for libel brought by Julius Runge against Joseph Franklin, Henry Seeligson, Charles Dalien, Royal T. Wheeler, J. H. Hurt, E. D. Hamner, H. W. Rhodes and M. W. Shaw.

The original petition was filed March 18, 1886. It was amended January 26, 1887. The alleged libelous matter is contained in a petition filed in the District Court of Galveston County February 2, 1886, by defendants against the Island City Ice Company. Plaintiff was not made a party to the suit, but it is alleged that he was one of the directors. The suit was styled Charles Dalien and others against The Island City Ice Company, and numbered 12,880. The suit was for the purpose of having a receiver appointed for the ice company.

It is alleged that the suit was brought as a libelous cover and device under which to attack and injure the good name and fame of plaintiff and to injure him by depreciating his stock in several corporations of which he is director; that defendants all knew and were fully advised that they had no cause of action against plaintiff; that the libelous matter was published maliciously against plaintiff as a man and a director in the ice company, without cause of action or right of petition; and that it was ut

NOTE.-Matters, though scandalous, charged in ju- | upon the same necessity that requires one to surdicial pleadings, are not actionable libel.

No action lies for libelous matter charged in a pleading in a judicial proceeding before a court of justice, although the matter is false, and however defamatory (Buckley v. Wood, 4 Coke, 14 b; Cutler v. Dixon, 4 Coke, 14 b; Weston v. Dobniet, Cro. Jac. 432; 1 Hawk. P. C. chap. 28, § 8; Lea v. White, 4 Sneed, 111); or of an affidavit however false and malicious, and although the party scandalized is not a party to the cause (Henderson v. Broomhead, 4 Hurlst. & N. 569; Francis v. Wood, 75 Ga. 648; Casselman v. Winship, 3 Dak. 292); or in any statement in a judicial proceeding however false and malicious. Bailey v. Dean, 5 Barb. 297; Warner v. Paine, 2 Sandf. 195; Sanders v. Rollinson, 2 Strobh. L. 447; Suydam v. Moffat, 1 Sandf. 459; Hardin v. Cumstock, 2 A. K. Marsh. 480.

But the publication of the pleadings or other contents of the files of a private suit, by a newspaper, before hearing or action in open court is not privileged. Park v. Detroit Free Press Co. 1 L. R. A. 599.

Privileged communication. Communications are privileged as matters of public policy. Those absolutely privileged rest

render personal rights and to suffer loss for the benefit of the Commonwealth. Bacon v. Michigan Cent. R.Co. (Mich.) 9 West. Rep. 709.

Words spoken in a judicial proceeding, whether by a party, by a witness or by counsel, are prima facic privileged. Stewart v. Hall, 83 Ky. 375.

Witnesses are absolutely privileged from liability to civil action for defamatory words used by them in the course of judicial proceeding. Hunckel v. Voneiff (Md.) 12 Cent. Rep. 849.

The Mississippi Code 1880, 1004, making actionable all words commonly considered insults, and which lead to violence and breaches of the peace, does not affect the immunity of a witness in a judicial proceeding from liability to an action for slander. Verner v. Verner, 64 Miss. 321.

A communication made to a state's attorney whose duty is to commence and prosecute criminal actions is an absolutely privileged communication, even though there be evidence of the speaking of the same to other persons than the attorney. Vogel v. Gruaz, 110 U. S. 311 (28 L. ed. 158). Pertinent and material matter written or spoken in judicial proceedings is privileged. Whatever is said or written in good faith in the course of a judicial proceeding, and which is perti

terly impertinent and irrelevant to any rights | follows: That said Sinclair encouraged large of complainants therein as against the ice com- sales of ice and beer, well knowing that such pany. course was sure to produce great loss to the shareholders in said company (meaning the Island City Ice Company), and the complainants charge and allege that he did the acts complained of with the assent of the directors of said company (meaning thereby plaintiff and other directors) for the purpose of depreciating the capital stock of the company, so that it might be bought at low figures; and thus controlled the affairs of the company to make a real or pretended debt upon the same and to sell the property of the company to their own advantage (meaning to the advantage of plaintiff and other directors) to the wrong and injury of complainants and other small stockholders, and to deprive them of the value of the stock.

It is alleged that "In a certain part of said libelous petition it was alleged as follows: That about the month of November, 1883, the said president, Wm. H. Sinclair, and certain other directors of said ice company (meaning thereby the directors of the Island City Ice Company) began a course of mismanagement unknown to and concealed from the stockholders, which was calculated to injure and destroy the marketable value of the stock, and which was done by said Wm. H. Sinclair and those intrusted with the interest of said ice company (meaning thereby and referring to plaintiff as one of the directors), to serve their own purposes and benefit themselves, and to injure these complainants and all other stockholders not confederating with them for the purpose aforesaid (that by them they referred to this plaintiff and other directors of said company.)" It is further alleged "That defendants set out at length in said paper writing called by them a petition, that a most favorable proposition to lease the property of the company had been made to the directory of the Island City Ice Company, and then in a certain part of said libel was and is contained allegations in tenor as follows: And these complainants (meaning thereby the defendants) charge that the said officers of said company conceded the same (referring to the offer of lease) from the shareholders (meaning shareholders of the Island City Ice Company), well knowing that its acceptance would be demanded and imposed by said shareholders, and thus frustrate the plans laid for the purpose of managing the ice company for their (meaning and referring to plaintiff and other directors) own advantage and to the injury of the majority in number of the shareholders.

"In a certain other part of said libel there was and is contained allegations in tenor as

nent and material to the matter in controversy, is privileged. Rainbow v. Benson, 71 Iowa, 301.

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It is also alleged that "In a certain part of said libel there was and is contained allegations as follows: They (meaning defendants in this suit) further allege that during the years 1884 and 1885, after said willful and wrongful acts had caused the stock of said company to depreciate to a small value, Wm. H. Sinclair and others among the directors confederating with him, purchased a large number of shares of the stock at greatly reduced figures, so that said Wm. H. Sinclair now holds 716 shares of the same, and he and other associates with him among the directors and certain stockholders hold and control 1234 shares, a clear majority of the whole number 1891 (meaning the whole capital number of shares in the Island City Ice Company), the greater part of which shares were procured and are being used for the purpose of carrying such measures in the meeting of stockholders and directors as will enable them to deprive the majority of shareholders of all rights in the property of the company, and of the total value of their stock. That the president and directors (meaning of the Island City Ice Company) alone own and control 1114

Privilege extends to both attorney and client. Where they are uttered in good faith, without exThe privilege extends to a party to the suit as press malice, the speaker having reasonable or prob- well as to his counsel (Mower v. Watson, 11 Vt. 536; able cause to believe them true and material, they Hoar v. Wood, 3 Met. 193); but they must be pertiare privileged and no action will lie. Briggs v. Gar-nent and material to the judicial inquiry. Marsh rett, 2 Cent. Rep. 364, 111 Pa. 404; Mower v. Watson, 11 Vt. 536; Marsh v. Elsworth, 36 How. Pr. 532; Cooke, Defamation, 63; Doyle v. O'Doherty, 1 Car. & M.

421.

V. Elsworth, 36 How. Pr. 534, 50 N. Y. 311; White v.
Nicholls, 44 U. S. 3 How. 267 (11 L. ed. 591); White v.
Carroll, 42 N. Y. 161; Moore v. Manufacturers Nat.
Bank, 21 N. Y. S. R. 654; Warner v. Paine, 2 Sandf.
195.

A publication in the course of a judicial proceeding, which the party supposes is necessary to his And when pertinent and material, their truth or defense, is not actionable (Lea v. White, 4 Sneed, falsity is immaterial-and this irrespective of the 111), and much latitude will be allowed to the judg-question or motive of malice. Hastings v. Lusk, ment and discretion of one who conducts a cause in 22 Wend. 410; Garr v. Selden, 4 N. Y. 91: Ring v. a court of justice. Hoar v. Wood, 3 Met. 193. Wheeler, 7 Cow. 725; Gilbert v. People, 1 Denio, 41; Counsel should be allowed full freedom of speech Marsh v. Ellsworth, 50 N. Y. 309. in conducting their causes (Hoar v. Wood, 3 Met.197), in every proceeding before a competent court or magistrate (Weston v. Dobniet, Cro. Jac. 432); and this includes church judicatories. McMillan v. Birch, 1 Binn. 178.

The publication by an attorney in the course of his employment is absolutely privileged. Hollis v. Meux, 69 Cal. 625.

A civil action of libel will not lie for malicious statements made by a party in any of the pleadings or proceedings in a cause before a court having jurisdiction of the subject. Bartlett v. Christhilf (Md.) 12 Cent. Rep. 852.

That the utterance, whether oral or written, must not be impertinent, see Gilbert v. People, 1 Denio, 41; Hoar v. Wood, 3 Met. 193; Hodgson v. Scarlett, 1 Holt, 621; Brook v. Montague, Cro. Jac. 90.

The privilege exists in an absolute sense only where the words are pertinent to the issue. Bradley v. Heath, 12 Pick. 163; Remington v. Congdon, 2 Pick. 310; Hastings v. Lusk, 22 Wend. 417.

The exemption of an attorney from an action of libel and slander for defamatory words used by him in a judicial proceeding extends only to such words as relate to the subject matter thereof. Maulsby v. Reifsnider (Md.) 12 Cent. Rep. 840.

shares of said stock, by which means, the same | duct, charged in said libel by defendants being a majority of all the stock subscribed, against plaintiff, are libelous, slanderous and they can pass any resolution they may desire untrue, and made maliciously and without in the meetings of stockholders, to the detri- probable cause by said defendants." ment and loss of these petitioners and other minority stockholders.

"Complainants say and allege that said B. Adoue, Wm. H. Sinclair and other directors aforesaid (referring to plaintiff and other directors) are about to hold a stockholders' meeting on Tuesday, February the 2d, 1886, for the purpose of passing a resolution together with other large stockholders associated with them, and by which resolution it is proposed to sell all the property consisting of buildings, lots. etc., which cost said company $41,275, for the purpose of paying the alleged indebt edness to Adoue & Lobit of $18,500; that said sale is to be carried out and managed by said Adoue, and the directors (meaning thereby this plaintiff and other directors of said company).

"Complainants deny that any such amount was due to Adoue & Lobit, and say that in equity and good conscience B. Adoue and the directors of said company should not be allowed to create a debt, if in fact any such debt exists (meaning thereby to question the honesty and validity of the debt of the company) to the great injury and wrong of these shareholders and the minority shareholders; and that they should not be allowed to sell and appropriate all said property to satisfy the

same.

Damages are claimed, $20,000.

Plaintiff further alleges that after he had filed in said court his affidavit specifically denying each and all the allegations made in defendants' said petition, defendants, on February the 11th, 1886, caused the same to be published in the "Galveston News," a newspaper published in the City of Galveston, having an extensive circulation in the City of Galveston and throughout the State of Texas, repeating through the columns of said paper the said libelous matter; in a certain part thereof was and is contained in tenor as follows, hereby annexed marked 'Exhibit A' and hereby made a part of this petition."

It is then alleged that after the defendants had so as aforesaid vented their spleen "by publishing their said libelous allegations in said petition and in said newspaper, and under pretext of a suit accomplished their wicked and malicious purpose of injuring plaintiff in character, business and property, defendants then dismissed said pretended suit paying the costs of court. That before the dismissal of said pretended suit there had been demurrers filed by the Island City Ice Company and its representatives, on the ground that in truth and in fact it was no suit and showed on its face that there was no cause of action or basis of relief against the Island City Ice Company. "Petitioners say they have reason to fear, and The said dismissal was before a ruling of the believe, that the said Adoue and Sinclair, and court was had on said demurrers. By reason others confederating with them, are about to of the committing of said several grievances pass said resolution, or some other resolution plaintiff has lost customers in his business, and equally harmful and injurious to these share the values of his stock in various corporations holders, which said officers of the company have depreciated, and plaintiff has been greatly (meaning plaintiff and others), and those con-harassed and damaged by defendants, to wit: federating with them, have full power to do. That petitioners have reason to fear, and do fear and believe, that said officers of said company are about to sell or otherwise dispose of said property, and that they will do so unless restrained by the equitable power of this court. That if permitted to sell or dispose of the same, they (meaning plaintiff and other directors) will sell or dispose of it to their own advantage, and for their own benefit, and not for the benefit and advantage of complainants, and other minority shareholders. That by hasty or pretended sale the said property worth upwards of $30,000 or $35,000 at a low valuation will be turned over by said president or directors (meaning plaintiff and other directors) to themselves and others associated with them, for the purpose of paying the alleged indebtedness, claimed by said president, B. Adoue, and his partner, J. Lobit, and no surplus will be left for division among the shareholders.

"Claimants represent that the president, B. Adoue, and the board of directors are not proper persons to be permitted to wind up the affairs of the Island City Ice Company by reason of the facts herein before set forth, which they allege constitute fraud, wrong and injury (meaning by this plaintiff and others) on the rights of complainants, and other shareholders who hold small amounts of said stock."

It is then alleged by plaintiff "that all the allegations of fraud, dishonesty and miscon

in the sum of $10,000." Then follows prayer for judgment for $30,000. The petition in suit of Charles Dalien et al. against The Ice Company is made a part of plaintiff's petition and filed therewith as "Exhibit B."

Exhibit A contains the matter published in The Galveston News. It gives the names of the plaintiffs in the suit against the ice company; states that Dalien is the largest shareholder of the parties bringing the suit, having sixty shares, out of something over 100 of the capital stock, the total being 1891. It is headed:

"A receiver applied for to manage the Island City Ice Company and protect the interest of the smaller stockholders."

It states that the bill shows that the company was organized in 1880 with a capital stock of 1891 shares at $25 per share, aggregating a total capital paid up in cash of $47,275. It states that, "At present Mr. B. Adoue is president of the company, and W. H. Sinclair, Julius Runge" and others, giving the names, are directors, against whom the suit is brought. The property owned by the company is stated to be lots 12, 13 and 14 in block 737 in the City of Galveston with a brick building used as an ice house, reasonably valued at $41,275.

After these explanations the publication undertakes to state what is alleged in the bill, viz.: mismanagement of the affairs of the company to the detriment of complainants' interests, and general detriment of the interest of the com

That

pany; and that the assets and resources are be- | plainants charge is of doubtful validity. ing wasted to the wrong and injury of plaint- the books show that W. H. Sinclair owns 375 iffs.

shares of stock in the company while he claims The publication then proceeds as follows: 716 shares. That the directors' meetings have "The specific allegations are substantially not been held as the charter provides, and that these, quite numerous and some of them severe: by mismanagement and connivance to freeze That while W. H. Sinclair was president of out the smaller shareholders, the stock has dethe company in 1883 a very favorable proposi-preciated to a nominal value; and that W. H. tion was made to the company by the Anheu- Sinclair, and other directors acting in confedser-Bush Brewing Association, proposing to take eration with him, have recently purchased large charge of the company business for five years quantities of stock at greatly reduced figures, and run it in their own interest, guaranteeing controlling in all 1234 shares. That the presithe stockholders an annual dividend of 10 per dent and directors own in all 1114 shares of cent on their stock; that this proposition would the capital stock and in consequence pass such have been beneficial to the company, but the resolutions as they please and are now deterpresident, Sinclair, refused to accept it and mined by the exercise of this power to sell out failed to make it known to the stockholders. the company. That only 657 shares of stock That during the administration of the same are held by shareholders not confederating with president, the price of ice was reduced from the directors. $15 to $10 per ton, prices rendering the investment of the stockholders unprofitable and the institution insolvent. That at the same time Sinclair was president of the ice company he was also president and principal manager of the Beach Hotel Company; and from December, 1883, to April, 1885, the Beach Hotel was furnished with ice and beer by the Island City Ice Company at these reduced prices and at a total cost of $6,518.75, when, if the same quantity had been purchased before president Sinclair reduced the prices, the revenue accruing to the ice company from this source would have been over $9,000, thus leaving a clear profit to the hotel of $3,000."

The complainants further allege that the reduction in price was made in order to depreciate the capital stock of the company, that the stock might be bought in by the directors at the lowest possible figures, and thus freeze out the smaller shareholders.

They also allege that the debt of the company has been largely increased; that in January, 1884, the debt was about $3,500 as against $11,000 in January, 1885, while at the latter period the expenses were lower. That since January, 1885, the debt has been increased $18,500, which amount was claimed to be due Adoue & Lobit, the senior of the firm and the principal beneficiary of this alleged debt being now the president of the Island City Ice Company. That in March, 1884, W. H. Sinclair resigned as president and B. Adoue was elected to fill the vacancy. That in April, 1885, a pool was formed with the Texas Ice Company by which 295 tons of ice were sold to that company at $5 per ton, when president Adoue knew that even $10 a ton was a ruinous price. The complainants alleged that the books of the company have been wrongfully and inaccurately kept, and do not properly show the business affairs of the company or present them in a manner that is intelligible to the stockholders; that between February and October, 1885, certain promissory notes aggregating $3,700 were executed and made payable to Adoue & Lobit, of the payment of which notes no record appears upon the books of the company. That the pool entered into has not been at all advantageous, as it is claimed that the Island City Ice Company is still indebted to the Texas Ice Company $1,000. That the directors propose now to sell the property of the company to pay the debt to Adoue & Lobit and which com

"In view of these facts the complainants pray that the officers and directors of the company be enjoined from mortgaging, leasing, selling, or otherwise disposing of the property, real or personal, of the Island City Ice Company, and that a receiver be appointed to take charge of and wind up the affairs of the company, naming J. P. Alvey as a competent person for receiver."

"The bill further charges that all the present officers were illegally elected, as the charter provides for their election by ballot, while as a matter of fact they were elected viva voce."

"Upon the prayer of the petition Judge Stewart granted a temporary injunction, asked for, in chambers, and was engaged all day yesterday in hearing the case upon its merits as to the appointment of a receiver."

Plaintiff seems to rest his case for libel on the allegations of the petition as extracted, and the publication in The News. Defendants filed demurrer and exceptions to the petition.

Special exceptions as follows:

1. That said petition shows that the alleged defamatory matter was written in the course of a certain judicial proceeding in cause No. 12,880, it being in the petition in said suit filed; that it shows the said proceedings were regular; that the allegations in the petition were relevant and pertinent to the relief sought, viz.: the appointment of a receiver for the Island City Ice Company, and for obtaining an injunction restraining plaintiff and others from selling the property of the company; that the cause was pending in a court of competent jurisdiction; therefore the matter complained of was privileged and no action is maintainable thereon.

2. The language complained of is not actionable per se, and the petition contains no such allegations of special damage as will support the action.

3. The petition alleges that the petition filed in suit No. 12,880 did not ask for any relief against said directors, and alleges that the suit was not real and bona fide; yet the petition sets forth enough of the petition in suit No. 12,880 to show that the same was a bill in chancery in the usual form praying distinctly for relief, that the president and directors be enjoined from selling the property of said company, and that they be dispossessed of the control of said company and for a receiver for the company. Wherefore, defendants say the petition of plaint

1889.

RUNGE V. FRANKLIN.

iff is bad, multifarious, contradictory and in- | iff cannot supply such deficiency by a simple sufficient.

4. Plaintiff's petition is insufficient, because it makes a general allegation that the matter set forth in the petition in cause No. 12,880 is immaterial and irrelevant, while an inspection of the matter complained of shows that such allegation is incorrect, for the allegations complained of by plaintiff were necessary and material in order to obtain the relief sought, viz.: the appointment of a receiver, and injunction. 5. The allegation of publication in The Galveston News is insufficient, for the same is shown to be a fair and impartial report of said petition in cause No. 12,880, filed in a court of competent jurisdiction, of matter not scandalous nor libelous in its nature, and in the ordinary form of a bill in chancery; and the petition does not allege that the report of said petition in cause No. 12,880 was untrue or unfair; wherefore, the report was privileged.

reference to a totally different case where an-
other party is plaintiff, and that the pretended
amendment is a contempt of the court, and a
disregard of its orders; wherefore, defendants
pray that it be considered that plaintiff declines
to amend and that the cause be dismissed.

The original petition is not found in the rec-
ord. The court sustained the exceptions, and
plaintiff declined to amend; whereupon the
court dismissed the petition at plaintiff's cost.
Plaintiff appealed.

It does not appear upon what special grounds
the petition was dismissed. The questions
raised by the assignment of errors are, Should
any of the exceptions have been sustained?
and Should the petition have been dismissed?
or Did the petition show a good cause of action?

Messrs. McLemore & Campbell and
George E. Mann, for appellant:

privileged communication.

A paper filed in court with express malice, 6. Plaintiff's petition recites certain parts of the petition in cause No. 12, 880, and alleges that and for the object of slandering, and without they were not pertinent nor relevant to the suit, any cause of action against a person named and fails to set out the whole petition, and fails therein, but with the object of protecting the to designate specially how and why said allega-person filing it from damages for libel, is not a tions are irrelevant, immaterial or impertinent. 7. The petition sets out that suit No. 12,880 was dismissed before a ruling was made on demurrer, and does not set out the petition demurred to, nor the demurrers; and the allegation as to dismissal constitutes no cause of action.

8. That the petition sets out as a part of the cause of action, verbal publication by defendants of the charges complained of as contained in cause No. 12,880.

By supplemental petition other special exceptions are added as follows:

9. That the petition is bad, insufficient and faulty in the misjoinder of two separate, distinct and independent causes of action, viz.: an action for libel and slander.

10. That all that part of the petition relating to verbal defamation should be stricken out because (1) verbal slander is misjoined with written slander; (2) the allegations of slander are too indefinite to notify defendant of the words spoken; no defamatory words are set out in the petition and alleged to have been spoken, and the verbal defamation is alleged to have occurred at a different time from the written libel declared on; (3) the allegation is that all the defendants spoke the alleged defamatory words jointly, when in law there can be no joint verbal defamation by several defendants, and no joint liability for verbal defamation.

11. Defendants say there is no defamatory or libelous allegation shown therein to apply to words or to be directed to the plaintiff, and no facts or circumstances are alleged which can warrant the conclusion that plaintiff was the person intended, or one of the persons intended, by the allegations of acts done by the directors of the Ice Company or "certain of them," in the petition in cause No. 12,880 complained of as a libelous publication.

12. Further excepting, defendants say that the paper called 1-Trial Amendment-is not such amendment as is required by the order of this court; for by the order, June the 10th, plaintiff was required to set out in full the paper or petition alleged to be libelous; that plaint

White v. Nichols, 44 U. S. 3 How. 266-293 (11 L. ed. 591-603); Holt v. Parsons, 23 Tex. 19; Townshend, Libel & Slander, 3d ed. p. 138, 188; pp. 350, 351, § 209, 288; Howard v. Thompson, 1 Am. Lead. Cas. *167-175, 21 Wend. 319.

In order to make a petition in a court privileged, it must be filed with the belief that there is a cause of action and not as a mere cloak for express malice.

Howard v. Thompson, Holt v. Parsons, White v. Wren, 63 Tex. 722, 723; Nichols, supra; Belo v. White v. Carroll, 42 N. Y. 161, 1 Am. Rep. 504; Gilbert v. People, 1 Denio, 41, 43 Am. Dec. 647; 2 Greenl. Ev. 13th ed. § 421 and notes; Townshend, Libel & Slander, 3d ed. § 221 and notes.

The libelous allegations were libelous per se. Holt v. Parsons, supra; Townshend, Libel & Slander, 3d ed. p. 279, § 182.

Messrs. Waul & Walker, for appellees: A petition filed in a court of competent jurisdiction, and containing allegations relevant to the subject matter of the suit, is, as to such allegations, absolutely privileged.

Public policy forbids that fear of libel suits should prevent parties from seeking their rights through the courts. The contents of all papers relevant to the subject matter of litigation, filed in a judicial proceeding, are absolutely privileged, and the question of malice cannot be inquired into.

Johnson v. King, 64 Tex. 232; Smith v. Adams, 27 Tex. 30; Haldeman v. Chambers, 19 Tex. 53; Garr v. Selden, 4 N. Y. 91; Hurtsock v. Reddick, 6 Blackf. 255; Forbes v. Johnson, 11 B. Mon. 48;. Cook v. Hill, 3 Sandf. 341; Shipley v. Todhunter, 7 Car. & P. 680; Munster v. Lamb, L. R. 11 Q. B. Div. 588, 17 Cent. L. J. 419.

A petition complaining of a newspaper publication of court proceedings as libelous must allege an unfair, partial or incorrect report of such proceedings. A fair and impartial published report of a judicial proceeding stands on the same footing as to privilege as the court paper itself; and the absence, of allegations that

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