Crockett v. McLanahan. pealed, and has assigned as error the action of the circuit court in sustaining the demurrer. The determinative question of law arising upon the pleadings is whether the alleged defamatory matter was absolutely, or only conditionally, privileged. The rule on this subject at common law was thus stated by Mr. Townshend in his work on Slander and Libel (4th Ed., sec. 221), viz.: "In a civil action, whatever the complainant may allege in his pleading in connection with his grounds of complaint, can never give a right of action for libel. The immunity thus enjoyed by a party complaining extends also to a party defending. Whatever one may allege in his pleading by way of defense to the charge brought against him, or by way of countercharge, counterclaim, or set-off, can never give a right of action." This rule was adopted in this State at an early day, but it was coupled with the qualification that the alleged defamatory matter must be pertinent or material to the subject of inquiry in the particular litigation. In Lea v. White, 4 Sneed, 113, it was said, viz.: "The communications are, on account of the occasion on which they are made, prima facie, or, as the books bave it, 'conditionally privileged; that is, they do not amount to defamation (actionable) until it appears that the communication had its origin in actual malice in fact.' In such cases it will be incumbent on the plaintiff to show, in addition to the injurious publication, malice in fact, and that the occasion was Crockett v. McLanahan. seized upon as a mere pretext." Illustrations of this class of communications are statements in respect of the character of servants, official communications, reports of judicial proceedings, etc. "But, continues the court, "there is another class of cases which are absolutely privileged and depend in no respect for their protection upon their bona fides. The occasion is an absolute privilege; and the only questions are whether the occasion existed, and whether the matter complained of was pertinent to the occasion. In this class are embraced judicial proceedings. The proceedings connected with the judicature of the country are so important to the public good, the law holds that nothing which may therein be said with probable cause, whether with or without malice, can be slander, and in like manner that nothing written with probable cause under the sanction of such an occasion can be a libel. The pertinency of the matter to the occasion is that which is meant by probable cause, and probable cause is, in this class of absolutely privileged communications, what bona fides is to the class of conditionally privileged communications, which are protected unless there is malice in fact." It will be observed that the cardinal inquiry is whether the alleged defamatory matter is pertinent to the issue involved. As said by this court in Shadden v. McElwee, 86 Tenn., 152 (5 S. W., 604; 6 Am. St. Rep., 821), "where the matter alleged is pertinent to the issue, or fairly supposed to be so, although not Crockett v. McLanahan. in the strictest sense relevant, the pleader is absolutely privileged, although he may have entertained sentiments of malice to the adverse party." It is, moreover, the rule that the question of pertinency or relevancy is a question of law for the court. Lea v. White, 4 Sneed, 111; Shadden v. McElwee, 86 Tenn., 152 (5 S. W., 602; 6 Am. St. Rep., 821); Jones v. Brownlee, (Mo.), 61 S. W., 795 (53 L. R. A., 448). It can not be seriously controverted that the allegations of the bill in the United States circuit court with respect to the disqualifications of the plaintiff as an elector in the election of August 8, 1901, were pertinent and relevant to the matter of inquiry in that suit. The legality of the election was challenged in that proceeding upon the ground that the municipal aid subscription had not been carried by a threefourths majority of the voters, as required by law. It was necessary that the bill should specifically recite the names of the disqualified voters, in order that an issue might be made in respect of their qualifications. Moore v. Sharp, 98 Tenn., 493 (41 S. W., 587); Blackburn v. Vick, 2 Heisk., 383. The name of the plaintiff was included in a list of about fifty citizens of the twentieth ward, who were alleged to have been disqualified to vote in said election on account of a failure to re-register after changing their residence in said ward twenty days before the election. The matter alleged being pertinent to the issue, it was absolutely privileged, and it is wholly Crockett v. McLanahan. immaterial whether the element of malice entered into the charge. As said in Lea v. White, supra: "It certainly can not be maintained that, because a person is malicious in his statements toward the adverse party, he will not be permitted to set up in his defense any matter that he may reasonably suppose would be available." It is alleged in the declaration there was no probable cause, or that defendant could not have reasonably supposed it necessary in his case, to have al leged the libelous matter. It is said the demurrer admits this allegation. It is well settled that "a demurrer does not admit inferences from facts, nor conclusions of law averred." 6 Ency. Plead. & Prac., 336; Park v. Kelly Axe Co., 1 C. C. A., 395 (49 Fed., 618); Kent v. Lake Sup. Ship Canal Co., 144 U. S., 75 (12 Sup. Ct., 650; 36 L. Ed., 352); Foster's Fed. Practice, sec. 106; Hopper v. Town of Covington, 118 U. S., 148, 151 (6 Sup. Ct., 1025; 30 L. Ed., 190); Greeff v. Society (N. Y.), 54 N. E., 712 (46 L. R. A., 288; 73 Am. St. Rep., 659). "Averments in a declaration as to the meaning and interpretation of a writing attached thereto, or exhibited, are not admitted by a demurrer." National Park Bank v. Halle, 30 Ill. App., 17; 6 Ency. Plead. & Prac., 337, 397; Foster's Fed. Practice, sec. 106. "Neither does a demurrer admit matters averred in the declaration contrary to law." L. & N. R. R. Co. v. Palmes, 109 U. S., 244 (3 Sup. Ct., 193; 27 L. Ed., Crockett v. McLanahan. 922); 6 Ency. Plead. & Prac., 338, 398; Foster's Fed. Practice, sec. 106; Hooper v. Town of Covington, 118 U. S., 148, 151 (6 Sup. Ct., 1025; 30 L. Ed., 190). As already seen, the pertinency of the matter to the occasion is that which is meant by probable cause. The pertinency of the matter to the issue presented is a matter for the court, and the demurrer does not admit the want of probable cause, or any other conclusion of law which must be drawn by the court. We think, as matter of law, the alleged defamatory matter was absolutely and unqualifiedly privileged. But it is insisted on behalf of plaintiff in error that the present case falls within an exception to the general rule which was recognized and established by this court in Ruohs v. Backer, 6 Heisk., 395 (19 Am. Rep., 598). In that case it was held that the rule as to parties does not apply to strangers to the record, and such statements, although pertinent, are only conditionally privileged. The facts of that case were that Ruohs, as next friend of two young girls, filed a petition in the county court of Hamilton county, in which he asked the removal of their guardian upon the ground alleged that 'the guardian has had in his family a girl who is now probably over sixteen years of age, who came to live with him about the age of thirteen years, and has remained in his family ever since. Her reputation is ruined, and she is now an example of shame and prostitution." The court said, viz.: "Having the undoubted right to present the pe |