Fernald v. Sheppard , 195 Mass. 543 ( 1907 )

Morton, J.

Whether the occasion was such as to raise the defence of privilege, or whether if there was a libel there was a publication of it by the defendants, it is not necessary for us to consider, since we are of opinion that there was nothing libellous in what the defendants did. What they did was to sign a certificate of Mr. Fernald’s character, and to request that his petition for a rehearing should be granted. Although the petition begins, “We the undersigned do most respectfully petition and pray that the dismissal of a libel for divorce may be reconsidered and granted from the evidence of the following witnesses for Charles A. Fernald, physician, in good standing, and son of,” etc. it concludes, “ I most respectfully petition and pray,” etc., and is signed by Fernald alone and must be regarded as his petition and not that of the defendants. The reference to it in the certificate is not for the purpose of incorporating it into the certificate, but to show for what purpose the certificate is given, and the petition is not thereby incorporated into the certificate. Whether the certificate does incorporate the petition into it is a matter relating to the construction of a written instrument, and, therefore, for the court and not for the jury. We think that the court was right in directing a verdict for each defendant.

Exceptions overruled.