#### FRANK R. PERRY v. W. R. PERRY.

(Filed 19 October, 1910.)

Libel — Absolute Privilege — Pleadings.

An affidavit of an executor sought personally to be taxed with cost of an action against the estate, upon the ground of bad faith in defending it, does not render him liable, in an action for libel, for stating in his affidavit to resist the motion that the testimony of the plaintiff was “false,” “false in the start and fraudulent in the manner in which it was attempted to be established,” as such matters are “absolutely privileged,” even if shown to be false and actual malice proven.

Appeal from 0. H. Allen, J., at tbe April Term, 1910, of "Wake. *

The facts are sufficiently stated in the opinion.

B. 0. Beckwith for plaintiff.

Holding, Bunn & Snow, Aycock & Winston and Peele & Maynard for defendant.

OaaRK, C. J.

The defendant W. E. Perry was executor of S. D. Perry, deceased. The present plaintiff Frank Perry brought an action against the executor to recover a certain amount which he claimed to be due him. At the first trial in the Superior Court the jury found against the plaintiff. A new trial was granted because of the comment of the judge upon the plaintiff’s counsel. At the second trial the jury found in favor of the plaintiff, and this judgment was affirmed by the Supreme Court. The plaintiff Frank Perry then sought to charge the executor personally with the costs of said litigation, and at the October Term, 1908, lodged a motion to this effect, supporting it by an affidavit in which he charged the executor with bad faith in defending the action. In response to this affidavit, and in order to show his good faith in defending said action, the executor filed an affidavit upon which this action for libel is brought. The motion was denied and the executor was not taxed personally with the costs.

The substance of the paragraphs in aforesaid affidavit upon which the plaintiff relies, as ground for this action for libel, is *267that said affidavit styles tbe testimony of plaintiff in tbe action referred to as “false,” “false in tbe start and fraudulent in tbe manner in wbicb it was attempted to be established,” and that plaintiff’s claim was “essentially unjust, dishonest and unlawful.” This is warm language, but tbe occasion was privileged. There was no publication of this language by tbe defendant in tbe newspapers, or otherwise, nor elsewhere. It was used only on tbe motion by tbe plaintiff to tax fhe defendant, executor, personally with tbe costs and tbe judge refused tbe motion. Tbe affidavit was therefore “absolutely privileged” and an action could not be maintained even though tbe charges were shown to be false and actual malice proven. Ramsey v. Cheek, 109 N. C., 270; 25 Cyc., 376.

In this present action tbe complaint avers that tbe said affidavit of tbe defendant is “false, malicious and defamatory,” yet surely tbe defendant cannot sue tbe plaintiff for libel in so alleging.

It looks very much like what Pearson, G. J., styled, in one of bis opinions, as “cross-firing with small shot.”

Tbe law has been summed up and stated, with full citation of authorities in Nissen v. Kramer, 104 N. C., 574, and Ramsey v. Cheek, 109 N. C., 270. This ease falls under tbe bead of “absolutely privileged,” as defined in Ramsey v. Cheek, supra. Tbe judgment of nonsuit is

Affirmed.