#### Lathrop *vs.*Hyde.

In slander, where the words are spoken under circumstances which may entitle .the communication to be considered as privileged, and yet the speaker may have intended inaliciously to slander the plaintiff, the question of *malice*must be submitted to the jury; but they should in such case be instructed that unless *express malice*be proved, to disregard th(> testimony,

Error from the Otsego C. P. Susannah Hyde sued James E. Lü-throp, in an action of slander, for charging her with having stolen a quantity of flannel. The defendant had obtained a *search warrant*and took it to a constable to serve. On the trial of the cause the plaintiff called the constable (J. Ta-nner,) as a witness, and offered to prove by him what was said by the defend-ant on that occasion. .The counsel for the defendant objected to the admissibility of the evidence, insisting that the communication then made must be considered as *privileged.*The court ruled they would hear the testimony, and if deemed to come within the rule as to privileged communications, the jury would be instructed to disregard it. To this decision the counsel for the defendant excepted. The constable then testified, that the defendant on his inquiry stated in substance, that he suspected the plaintiff to have stolen the property, for the recovery of which the search warrant had issued. There was other evidence in the case not deemed necessary to be stated. The court among other things, charged the jury that if from the circumstances under which the words testified to by- *Tanner*were spoken, .they believed them necessarily uttered in the prosecution then instituted against the plaintiff, they should wholly disregard his testimony. There was no exception to charge. The jury found a verdict for the plaintiff with $400 damages, on which judgment was rendered. The defendant sued out a writ of error.

*E. B.*Morehouse, for the plaintiff in error,

insisted among other points raised, that the court, and not the jury, should have passed upon the question, whether the communication made by the defendant to the [ *449 ] constable was or was not privileged. *He contended that it should have been held a privileged communication, and if so, the jury would not have found for the plaintiff upon the other evidence which had been given in the case.

*343*S.*S. *Bowne,*for the defendant in error.

*By the Court,*

Nelson, C. J.

Although the words were spoken to the constable, while the defendant was in the course of proceeding criminally against the plaintiff, they were not necessarily to be regarded as privileged.

So far as the communication was essential or even material as to the regular execution of the process, it was privileged ; and courts and juries should be liberal in their indulgence to this extent. Full scope should be extended to all concerned in the bona fide administration of criminal law. But as the proceeding may be used as a cover for the indulgence of private malice, the courts must permit the collateral acts and declarations of the prosecutor to be proved, with a view to determine their character ; and if they turn out to be slanderous, and show a case of express malice, the privilege is gone; and the question is one of fact, and must go to the jury like all others of the kind. 3 *Johns. R.*189; 7 *Cowen,*725; 12 *Wendell,*546; *Starkie on Slander,*189, & *note;*2 *Serg. & Rawle,*471; 21 *Wendell,*325, *per Cowen J.*If the jury find against the weight of evidence on the point after proper instructions a new trial will be granted. We are to presume, that the proper direction was given in this case, as no exception has been taken to the charge, and so far as stated it is well enough ; though if requested, the court should have gone further, and advised the jury to lay the evidence out of view, unless they should come to the conclusion that *express malice*had been proved. Indeed for aught that appears, the case may have been put as strongly for the defendant, as the charge is not given in full.

Judging from the evidence as it appears before us, I think the damages excessive; but that question cannot arrise on a bill of exceptions. The remedy was by motion for a new trial in the court below.

Judgment affirmed.