Milam v. Burnsides

3 S.C.L. 295

Opinion

By the Court.

By the act of congress of 1791, a court of in. quiry is not authorised to be holden but at the request of the person accused, or him against whom the inquiry is to be made. This is also agreeable to the articles of war. But, in this case, it appears that the plaintiff never demanded an inquiry, and was brought up

unwillingly before the pretended court of inquiry, to answer the various charges brought against him by the defendants.

The defendants cannot shelter themselves under the cover of any such illegal procedure. The pleadings in this'case are imperfect,' and did not bri..g the point in question properly before the court by demurrer, as they ought: nevertheless, fh'e point upon which the judge decided in the district court, was the point intended to be brought before that court for decision. That decision is not right; not only for the reason already given, but because we are all of opinion that, notwithstanding the charges,' which were exhibited to the court of enquiry, were made pursuant to military form, and in. strict conformity to law, yet if the same be falsely made, with a malicious intention to defame and injure the plaintiff, and without reasonable and probable cause, the plaintiff would be entitled to maintain his action for defamation, and recover damages.

* The case of Sutton v. Johnstone, 1 T. R. 493, cannot influence the question. The same necessity does not exist here, and besides, that case is applicable to the present, for Com; Johnstone did not impute to Oapt. Sutton any act punishable in a court of civil justice; and if it were applicable, yet a decree so unjust in itself, can neves be recognized as law in our country.

Tkezjsvant, J.

expressed himself satisfied with this decision»

The nonsuit was set aside, and a new trial granted.

Note. See 4 Bac. Abr. 452, Libel, King v. Bailey. 2 Bur. 807, Ashley v. Young. 1 Hawk. 194. 4 Rep. 14. 2 Inst. 228 Dyer, 285. 2 Bl. R 1038. 1 Saund. 131, the King v Lake, Wms. ed. and the notes. A false and scandalous petition to a committee of parliament, printed and delivered, held justifiable, because in ' order and course of proceedings in parliament.

Lex potius vult paii privatum incominoduM, quam publicum malum. Vide Thorn v. Blanchard, 5 Johns. 508. The policy of the law will not permit prosecutions for libel in certain cases, qu. vide, 1 Hawk. P. C. c. 73.

[Vide Heyward v. Cuthbert, 4 M’C. 354.]