ing to defendants on what is known as the Ozark property, and an eight-room house, the two plants being one mile apart, were burned on the same night."

The court sustained a demurrer to the complaint, and, as appellants declined to plead further, a judgment was entered dismissing the action.

It is alleged in the complaint that the libelous charge was published with malice, and that it was false. All of the facts, including the whole of the pleadings in the original action, having been set forth in the complaint, a demurrer properly raises the question of the sufficiency of the allegations of the complaint to constitute a cause of action. The inquiry narrows down to the question whether or not the publication of the alleged libelous matter was absolutely privileged.

There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter. One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned, and are absolutely privileged. The authorities are not entirely free from conflict. There are a few cases holding that statements in pleadings, whether pertinent and relevant to the issues involved, are absolutely privileged, and there are also a few cases which hold that pertinent and relevant statements in pleadings are privileged on condition that they are made without malice, but according to the great weight of authority, as before stated, pertinent and relevant statements in pleadings are absolutely privileged. The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or of the existence of actual malice, 17 R. C. L. p. 335; case note to Kemper v. Fort, 12 Ann. Cas. 1022; 13 L. R. A. (N. S.) 821; Myers v. Hodges, 53 Fla. 197, 44 South. 357; Gaines v. Aetna Ins. Co., 104 Ky. 695, 47 South. 884; Abott v. National Bank of Commerce, 20 Wash. 552, 56 Pac. 376; Gardemal v. McWilliams, 43 La. Ann. 454, 9 South. 106, 26 Am. St. Rep. 195; McGehee v. Insurance Co., 112 Fed. 853, 50 C. C. A. 551.

The following statement of law as to the liberality of the courts in determining what

is or what is not pertinent is made in Ruling Case Law, vol. 17, p. 336, as follows:

"As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legiti mately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial."

The complaint in the present case discloses the relevancy and pertinency of the alleged libelous statements. The purpose of the original action was to cancel a lease on account of a breach or breaches of contract alleged to have been committed by appellee. In the answer appellee, as the defendant in that action, denied the breach of the contract on his part and alleged that the delay in the performance of the contract had been caused by acts of appellant, among other things, the burning of the plant erected for the purpose of washing of diamond-bearing dirt. The allegations of the answer, including the allegation now under consideration, presented issues in defense to that action, and were pertinent and relevant to the issues involved.

The alleged statement was therefore absolutely privileged, and the court was correct in sustaining the demurrer to the complaint. Affirmed.

NOTE-Defamatory Statements in Pleadings Given Currency in Newspapers.-It seems well settled that any statement in a pleading, if relevant to an issue in a case, though false and malicious, is absolutely privileged, but this is not so as to its repetition by another or its publication in newspapers. The reason for the absolute privilege above spoken of, is well explained in Kemper v. Fort, 219 Pa. St. 85, 67 Atl. 991, 13 L. R. A. (N. S.) 820, where there is a very thorough discussion of the subject and much citation of authority extending back to common law days.

But it is different as to a newspaper undertaking to publish to the world what is charged in pleadings. There is here no rule of public policy to be enforced, such as that, though "the privilege of immunity for false and malicious averments in pleadings is abused," yet "the right of appealing to the civil tribunals is more extensive than the right of appealing to the crim

inal tribunals," if one libelled should seek vindication. Kemper v. Fort supra.

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 v. Post Pub. Co., 217 Mass. 213, 104 N. E. 480, 52 L. R. A. (N. S.) 207. But it was said by Holmes, Judge, that this principle has "no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual who may not be even an officer of the Court. It would be carrying privilege further than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity." Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318.

In Meeker v. Post Print, & Pub. Co., 55 Colo. 355, 135 Pac. 457, the defendant was charged with publishing charges set forth in a complaint and certain affidavits filed in a civil suit, the publication being before any action had been taken on them. The Court says: "It appears to be conceded that the publications were in no privileged," and several cases, among others the Pulsifer case, were cited in support of this ruling.

sense

In Park v. Detroit Free Press Co., 72 Mich. 560, 40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544, it was said: "One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed to Courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents can be published to the world by anyone who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information in private suits till they come up for public hearing or action in open Court, and when any publication is made involving such matters, they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it. A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or, on trial, the case may entirely fail of proof or probability. The law has never authorized any such mischief."

The requirement that the matter must first be acted upon by the Court before it can be published broadcast was very technically enforced as regards a grand jury report containing an attack on a public officer. It was said that in applying the rule that there must be a fair report published of judicial proceedings that: "In applying this general rule discrimination is necessary and we observe: (1) That libelous imputations in a grand jury's report upon private citizens, or upon public officers not touching their fitness for office or their fidelity to the public service, or the propriety of their official acts, are not properly matters of public interest; (2) that the privilege does not attach at all until the report has been duly published by the grand jury itself in open Court." Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 61 So. 345.

ITEMS OF PROFESSIONAL

INTEREST.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION NO. 185.

Bond; Guaranty; Relation to Other Attorneys; Relation to Third Persons-Accepting bond to guarantee fidelity of lawyer-when un desirable. If it is contrary to the essential dignity of the profession for a lawyer to give, or permit another to give, a bond for him, conditioned on his fidelity, can a lawyer who accepts such a bond on another, knowing that the socalled bonded lawyer is acting contrary to the essential dignity of his profession, be held guiltless of a breach of ethics?

ANSWER No. 185.

This Committee has heretofore in answer to specific questions expressed the opinion that it detracts from the dignity of the profession for a lawyer to enter into an arrangement either with a collection agency or a law list for the guaranty by them of his faithfulness in remit ting commercial collections committed to his charge. The use of such baits by lay agencies as a means of securing business for themselves is to be condemned, and therefore, as this Committee has previously held, such guaranties of honesty by lawyers tendered to the public to be used in the solicitation of business are to be condemned. Since, in the opinion of the Committee, it is contrary to the essential dignity of the profession for a lawyer to give or to per mit another to give a bond conditioned on his fidelity under the circumstances above stated, it is, in its opinion, also undesirable for a lawyer to accept such a bond under the same circumstances.

In giving the foregoing answer, the Commit tee has confined itself to the class of cases which it has heretofore considered and in which a collection agency or a law list derives an advantage from the guaranty of the faithfulness of a lawyer in remitting commercial collections committed to his charge through their agency. The question, however, is predicated upon a hypothesis which is broader than any previous statement of the Committee's opinion. If the hypothesis of the question is to be deemed lim ited to the cases in respect to which the Committee's previous opinions have by their terms been strictly confined, the foregoing answer is, in the opinion of the Committee, an adequate

There are many relations in life in which the guaranty of fidelity is an essential feature of the relationship-such as the bonding of executors, adminitstrators, receivers, assignees for the benefit of creditors, employes or appointees of the Federal Government, officers of private 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. plying with the rules which have been adopted out of precaution for indemnifying against infidelity. The Committee is not of the opinion that in such cases lawyers should be regarded as an exempt or privileged class.

QUESTION No. 186.

Disbarred Attorney, Relation to Other Attor neys, Relation to Court-Employment of disbarred attorney by another attorney-Disapproved.-A. Can attorney who has been disbarred by the courts from practising law assist another attorney, not disbarred, in preparing papers, either complaints, answers or other legal documents, for or without remuneration?

B. Is the attorney who employs the disbarred attorney guilty of unprofessional conduct?

ANSWER No. 186.

In the opinion of the Committee:

(a) The right of the disbarred attorney to perform the services described in the question depends upon the construction of laws which probably vary in different jurisdictions (e. g. in New York, upon a construction of Section 88 Judiciary Law. See People v. Alfani, 227 N. Y., 334; People v. Title G. & T. Co., 227 N. Y., 366). This Committee does not undertake to pass upon such questions of construction.

(b) If, as a matter of law, the disbarred attorney is forbidden to render the services described in the question, then it is clearly im proper for the practising attorney to employ him for their performance. And, as a matter of professional propriety, the employment, by an attorney in good standing, of a disbarred attorney to perform any duties that lie in a doubtful zone between practising law and not practis ing law (including the duties specified in the question), should, in the opinion of the Commit tee, be disapproved because such employment tempts and conduces to the violation of the

barment. It cannot be doubted that disbarment is always and everywhere intended to deprive the disbarred attorney of the right to practice law, and even if the disbarred attorney be employed to render such services only as may not constitute "the practice of the law," yet there is in every such case the danger and likelihood that he will, under cover or cloak of such employment, perform such other services, either for his employer or for his own account, as under any construction of the law do constitute such practice.

MEETING OF THE VIRGINIA STATE BAR

ASSOCIATION.

The enthusiasm of those who attended the recent meeting of the Virginia Bar Associa 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 transacted, but there was a real feast of reason and a flow of soul which was greatly enjoyed by those who attended the meeting of the Association May 11, 12 and 13, 1920, at Richmond, Virginia. The intellectual fireworks were supplied by Hon. Randolph Harrison, President of the Association; Vice-President Thomas R. Marshall and Senator W. Atlee Pomerene, of Ohio. Even Henry St. George Tucker, so well known to lawyers who attend the meetings of the American Bar Association, forgot his dignity and called the delegates to their feet to cheer the words of the vice-president urging a move ment of the people "back to the Constitution." Mr. Tucker is a candidate for the Democratic nomination for governor in Virginia this year and has adopted that slogan for his platform.

It was at this meeting that the Vice-President gave voice to the criticism of the Eighteenth Amendment which featured the news columns of the daily papers a few weeks ago. In that connection he said:

"I don't see," he declared, "that Washington has any right to dictate the morals of Virginia. It seems to be that every state is abundantly able to take care of itself, and none should impose its will in a matterof this sort on any other. I am a teetotaler, too. But this is one of the 'altruistic evils' that the country has been heir to through the years. Those behind the movements probably have the best of motives, but their work, to my mind, is not for the good of the country.

"So far as I am concerned, I pray God that no man will ever again take a drink of intoxicating liquor, but the states should handle this question, rather than for Washington to legislate for the morals of the nation. If a

secret vote had been taken on that amendment behind closed doors, it wouldn't have received twenty votes in the United States Senate."

The Vice-President also attacked the tendency toward pure democracy which he said was the most dangerous tendency of modern times. "The people ought to have sense to know," said the Vice-President, "that they are not capable en masse to rule the country. They must select capable men to do it and leave them alone. If I am sick, I go to the doctor. If he tells me I have appendicitis, I do not refer the matter to the plumbers' union. This union may know much about pipes, but they do not know as much about my pipes as a good surgeon."

Mr. Marshall declared that we must preserve the representative character of our government at all hazards and prevent intermeddling with government affairs by small groups 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 pure democracy as pure farce. He thought the people were beginning to understand that they were incompetent to express an intelligent opinion on such matters and were disposed to return to the old paths. In enlarging upon this idea, Mr. Marshall said:

"In some states they seem to have no other occupation than that of voting. When I last visited the City of Seattle they had apparently set up ballot boxes in place of the saloons. Instead of taking a drink as they went down town, residents of Seattle stopped on the corner and dutifully cast a ballot. They told me of the plan and asked my opinion. I told them it might be all right, but I thought they should have two mayors, in order that one might serve while the other was being recalled."

Senator Pomerene's address was on the subject of "Some Recent Railroad Legislation." The speaker began his discussion of the new transportation act that has recently been passed by Congress. He took up each feature of the bill in detail and explained fully with both technical and common terms the ideas embodied in what he termed as "the first piece of constructive railroad legislation in the history of the country."

Amid a thunder of applause he denounced the power in the hands of labor to tie up the country with nation-wide strikes of railroad employes. "The American people are not easily aroused," he declared, "but they can be aroused, and in my opinion the next railroad strike that affects the nation as a whole will arouse them, and labor and capital will be in

formed, and the statement proved to them that the railroads and their employes are to be the servants of the people and not the masters."

The Senator closed his address with a lucid discussion of the labor problem on the railroads and its remedy. "When the American people rise up, and they will rise up, the wouldbe autocrats of the country, whether they be laborers or capitalists, will be thrown off as the billows of the ocean casts away the flotsam and jetsam that rides on its waves," he concluded.

Hon. Randolph Harrison, of Lynchburg, delivered the President's address, his subject being "The Monroe Doctrine; Its Origin, Meaning and Application."

The newly-elected officers of the Association are as follows: Armistead C. Gordon, of Staunton, President, and John B. Minor, of Richmond, Secretary.

BOOK REVIEW.

JAY'S WAR AND PEACE.

The republication of Jay's famous essay on War and Peace: The Evils of the First and a Plan for Preserving the Last, will be regarded by many as a most valuable contribution to the present needs of the world. This essay was published in 1842 by William Jay, son of John Jay of revolutionary fame. Mr. Jay was a strong advocate of peace and one of the earliest statesmen who contended for the substitution of arbitration for war. And in this respect he was the first who contended that questions of so-called honor must be submitted to the same arbitrament; in fact, a large part of his essay is taken up with the effort to prove hat the term, "questions of honor," is simply .. cloak to cover the selfishness, passion and obstinacy of nations and those who represent them in international negotiations. National honor is always at stake when one nation demands that which the other nation refuses to give. "A mere blustering letter by one diplomat to another may, if the controversy is fanned into a flame, be a question of honor," says Mr. Jay, "on account of which two Christian nations must commence the work of human butchery."

The author is an enthusiast for peace, and finds no justification for war except on the part of those who resist invasion. He is opposed to all standing armies, and contends that costly armament is not only an unjust burden on the people, but a continual incentive to war

"The ruin of almost every republic," he declares, "that has been blotted from the list of nations may be ascribed to the military spirit fostered by its citizens." He discusses the work of the great conquerors of history, yet finds that they have done little but to enslave mankind. For each one he would indite but one epitaph:

"He left a name at which the world grew pale, To point a moral, or adorn a tale."

To those who contend that war is an inevitable evil that will continue until the end of time, Jay replies that "it would be an impeachment of divine economy to suppose that an evil so dreadful was inseparably and inevitably connected with human society." With remarkable foresight the author looks forward to the day when there shall be a League of Nations to enforce peace. This prophecy is all the more remarkable since in 1848 there had been 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 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 nation may set an example which, through the blessing of Providence, may be made instrumental in ushering in the reign of universal peace. But by whom and in what manner, it will be asked, is this example to be set? It may be a feeling of national vanity, and it may be an inference from the peculiarities of history, position, and institutions that leads us to hope that to the United States will be reserved the happiness and glory of teaching to mankind the blessings of peace and the means of securing them."

This old essay is very readable and is worthy of its new dress and the new circle of friends which it will no doubt make.

Printed in one volume of 69 pages, and published and circulated by the Carnegie Endowment for International Peace, Washington,

D. C.

CORRESPONDENCE.

A CORRECTION.

Editor, Central Law Journal:

In your issue of May 28, 1920, Vol. 90, No. 22, at page 388, you say: "Justice Pitney, then Vice Chancellor of New Jersey, declared," etc., "and in a later case, when Mr. Justice Pitney

became a member of the Court of Errors and Appeals, he reached just the opposite conclusion," to show "how liable one is to err in the law by following first impressions of the justice of a case."

While not so stating, in so many words, you indicate that both opinions cited by you are by the same man. Not so. The first is by Henry C. Pitney, Vice Chancellor, and the second and later one is by his son, Mahlon Pitney, then an Associate Justice of the New Jersey Supreme Court, and now Mr. Justice Pitney of the United States Supreme Court Yours truly,

Morristown, N. J.

C. F. WILSON.

[We thank our correspondent for calling our attention to our mistake in confusing ViceChancellor Pitney with his son, Justice Pitney. It is not fair to blame the son for the errors of the father.--Ed.]

HUMOR OF THE LAW.

He was a strapping six-footer, but confused the office of the doctor with that of the lawyer. Approaching the young lady attendant, he said: "Are you the mandator?"

"Sir," she replied, with scorn, but further rebellion was prevented by the young lady in the law office overhearing the confab and in a very gentle voice, with a sort of a "Come and see me smile," she said:

"Please step this way."

The doctor's young lady attendant is still wondering.

A lawyer was pressing his suit;

In one-piece blue denim he rose. When the Judge, who was wise and astute, Said, "You can't make a suit out of those."

But the lawyer just murmured, "Oh, fudge!
Your humor would give one a pain;
You're clothed in your dignity, Judge,

But I can see through it quite plain."

"Rather a spicy case is being tried in one of the local courts."

"Yes?"

"A 20-minute kiss is featured." "Demonstrated, you say?"

"No; merely tossed to and fro by the opposing lawyers, but some of those chaps are wonderful word painters."—Birmingham Age Herald.