#### CYNTHIA LOUGHEAD v. A. BARTHOLOMEW.

Courts of justice — their object — good morals — indecent discussion — striking cause off the docket.

Courts of justice are instituted to preserve the peace of society, to try questions óf real interest between parties, and when the question discussed is one of mere speculation, injuriously affecting the character or interest of one not a party to the suit, or where the discussion tends to cast ridicule upon the court, or is against good morals, or upon subjects not connected with the substantial rights of the litigants, the court owes it to a proper sense of its own dignity, to public policy and sound morals, to cut short the discussion.

In such cases, the court will order a cause struck off the docket.

Libel. The libel declared upon is this: ‘Notice is given that a slanderous report has been put in circulation by Cynthia Loughead and Mahala Houser, to the injury of the character of Drusilla Bartholomew, concerning something that should have happened at the house of Esq. Porter, on the 6th of January, 1827, which report has been made to appear to be false, and they being people' of no property, it is thought unnecessary to commence suit against them..

Albert Bartholomew.’

Plea. That the plaintiff published of Drusilla Bartholomew (sister of the defendant,and unmarried,) the words: ‘she is a whore; she was delivered of a still-born child, at the house of Esq. Porter. *91She is charged, with having been delivered of a still-born child at Esq. Porter’s, and I think it as likely to have been her as any body else.’

Replication. 1. That the plain tiff did not say Drusilla was a whore, or that she had a still-born child at Esquire Porter’s; concludes to the country. 2. And as to her having been charged with having a still-born child, the plaintiff says that some person, to her unknown,' was delivered of a still-born child, and Drusilla was charged with having been the person, and being so charged, the plaintiff had reason to believe, and did' believe it as likely to have been her as any body, who was delivered of the still-born child, and therefore she spoke the words, &c. as she lawfully might.

Rejoinder. That the words were spoken by the plaintiff, as in the plea, without the cause in. the replication alleged, on which issue is joined to the country.

*W. Silliman,*for the plaintiff, and

<7. *B. Goddard,*for the defendant,

were about to proceed in the cause, when

Lane J.

said: This case shows two parties trying a question between themselves, whether a third, not a party to the record, has not been guilty of the crime of unchastity, before we commence the examination, it were well to inquire if the law will permit them to enter into a discussion so injurious to Drusilla Bartholomew, the third party named. Courts are instituted to try questions pertain, ing to the real interests of individuals; to settle substantial contro. versies; to preserve the peace of society; and where questions submitted to their action are merely questions of speculation, and where their discussion is contra bonos mores, or against public policy; or where the inquiry tends to cast ridicule upon the court, or where the investigation is palpably injurious to the interests or feelings of third persons, without affecting-the substantial rights of the litigants, some means will be found to arrest the inquiry. As wages, which are real interests in England, cannot be recovered, if in their discussion a third person is interested. A wager on a point of law, or on a frivolous game, or the amount of the hop duties, or the sex of an individual, &c. *Cowper*37, 729; 2 *T. R.*610; 1 *T. R.*56, 9. The case of *Cox*v. *Phillips, (R Temp. of Hard.*237) was a frivolous issue, on the marriage of the defendant-, injurious to Mildmay, a stranger .to the record, and was held indecent.

It appears to us that these principles may be brought to bear on the present. case. Cynthia Loughead had made a charge injurious to Drusilla Bartholomew, which was caused by the defendant’s *92uttering slander. Now Cynthia has a right, when pursued in court for the slander, to show, as matter of defence, that the charge is true; but when acting affirmatively in a suit against another, she has no right to insist on this proof at the expense of Drusilla. She has no vested interest in the truth of the slander worth preserving, when its maintenance would affect a third person so injuriously. Drusilla may, if she will, defend her own reputation, dr submit to the disgrace; but she is not obliged to adopt a stranger as the champion of her chastity, and abide by such exertions as she may choose to make. Thesfe are not the parties between whom that issue ought to be litigated. Besides, although the suits may, perhaps, have been brought against the defendant, who will act in good faith in making the defence, we cannot refrain from considering that it would, if sustained, enable men wantonly and maliciously to prosecute investigations- most injurious to the reputation, and revolting to the feelings of others, and so compel the courts to become the instruments of the mischief. We have no hesitation in asserting that courts owe it to a sense of their own dignity, to public policy, and to sound morals, to cut short such discussions. The very end of their institution requires of the court to act in this case, and prevent an investigation so injurious to the rights and feelings of Drusilla Bartholomew, while she is not in court, and is willing to remain silent. Under the influence of these views, we order the suit stricken from the docket, but give the plaintiff leave to move to reinstate it if he will. No motion was afterwards made. See also 3 *T. R.*697; 1 *Car. Sf Payne*613; 4 *John. R.*434.