Joy H. Fairchild vs. Nehemiah Adams, 11 Cush. 549

In the case before us, the great point is whether the arbitrators intended to submit any question of law to the court, and if they did, whether they are mistaken in regard to such question. We use the printed report of the award. The action was brought for written and oral slander, uttered by the defendant in a vote of expulsion of the plaintiff, proposed at an association of ministers to which both belonged, in the republication of that vote, with the alleged reasons for it, and in certain oral charges of crime and misconduct.

The vol;e of expulsion, and the alleged reasons for its adoption, were passed and uttered more than two years before action brought, and were therefore barred by the statute of limitations, but it is alleged that there has been a republication of them by the defendant within two years prior to the date of the writ. On the 2d of June, 1842, the plaintiff,' at his own request, was dismissed from the charge of a society at South Boston, and in September, 1843, he was installed as pastor of a church at Exeter, New Hampshire.

While resident at South Boston, he had become a member of a certain society called the Suffolk South Association of Ministers, and continued his membership after his removal. The defendant was also a member of the same association.

In June, 1844, a committee of the association, of whom the defendant was one, were appointed, at the plaintiff’s request, to investigate certain charges against him, contained in an anonymous pamphlet, and they found these charges untrue, but at the same time they made a written communication to the association, stating that certain documents had been placed in their hands, charging the plaintiff with a flagrant crime, and they advised an examination of those charges.

The defendant informed the plaintiff of these charges, and the plaintiff proposed to refer the examination of them to the association, but, at the defendant’s suggestion, concluded to refer the subject to an ecclesiastical council to be called at Exeter. This council reported unfavorably to the plaintiff.

Proceedings were subsequently had by the association at South Boston, in which the defendant participated, in relation to these charges against the plaintiff, running through several years, and up to the 3d of July, 1849, and the votes passed with the defendant’s concurrence, and remarks made by the defendant in the corase of such proceedings, embrace the cause of action against him. Whatever took place more than two years’ before action brought, was only admitted in evidence, as tending to show malice on the part of the defendant.

There are other material facts stated in the award, which, however, need not here be referred to.

The plaintiff alleges that a certain vote passed in 1845 by the association, was a libel; that its remaining on record, and especially its being read in the hearing of two clergymen casually present, but not members of the association, and a vote of the association in July, 1849, containing a reference to the former vote, reciting that it was incorrect in terms, and slightly altering its terms, but refusing to rescind it; that these were republications within two years’ prior to the date of the writ; that the defendant having voted for these proceedings, and exerted his influence in their favor, is responsible for them, and that no defence will avail him short of proving their truth.

The defence is that the statements and votes in question were privileged communications; that the parties were members of a ministerial religious association, for purposes of general and mutual improvement and profit; that the investigations, which resulted in the votes and statements complained of, were commenced upon the special request of the plaintiff, and that no more was done by the association than was necessary to carry out to their proper conclusion, the proceedings so commenced.

It appears that the plaintiff had not only requested them to investigate the charges, but also, in July, 1849, requested to be dismissed from their association,, and recommended to a similar one, called the Woburn association. They did not pretend to exercise any jurisdiction in the premises, except so far as it was invited or submitted to, by the plaintiff. Now what is a privileged communication ? There are many cases in the books relating to this subject, but most of them present questions compounded of. law and facts.

It ia clear that a party may be privileged to make communications, to the disadvantage of another, upon proper occasions, even though he may be mistaken in regard to" the facts communicated. The question is, as to what is a proper occasion. When this is settled, the law is plain. The submission of the plaintiff to the jurisdiction of the association, the extent of such submission, and the action of the association thereon, were all facts on which the referees were to decide. What was the object of the plaintiff in making the submission ?

It was in the first place, that he might be in fair standing with the association itself, and, secondly, he having removed to a foreign state, he desired them to recommend him to another and similar association. The referees were bound first to exercise due diligence to find the facts, and then to exercise their judgment in deciding upon the relative rights of the parties, growing out of those facts. If they could exercise their judgment in one way, they could do it also in another. In the year 1849, the facts took place, which gave rise to the plaintiff’s action.

The decision of the council at Exeter, was reported to the association by their committee, and subsequently, in January, 1845, the

preamble and vote complained of were passed. Before the meeting of the council, however, the plaintiff was indicted in the municipal court for the crime of adultery, with one Rhoda Davidson. Upon the trial of this indictment, he was acquitted. In July, 1845, a new church was organized at South Boston, and the plaintiff was installed as its pastor. In May, 1849, he requested the association to furnish him with a copy of the

preamble and vote in question, and his request was complied with. He then, in a printed circular, addressed to the members of the association, requested them to revise their proceedings, and rescind the vote, on the ground that its alleged causes were false and libellous; and, in a written postscript, addressed to on of the members, requested that notice might be given him, if his request were refused, or any action against him were proposed. He also requested Mr.

Kirk, a member of the association, to obtain certain evidence, and inform himself satisfactorily respecting a certain disease mentioned in the writ, and to use his influence to procure the rescission of the vote. The information was accordingly obtained and laid before the association. The application was presented at their meeting July 3d, 1849. They adjourned to the 10th of July, when the plaintiff appeared and addressed them on the subject, and also requested to be dismissed from their body, and recommended to the Woburn association.

The defendant was present at this meeting, and when the vote was taken, was called on in his turn, to give his vote and state his reasons for it. In giving his reasons, he read portions of a deposition which had been laid before the association, and argued that it contained proof that the plaintiff had been affected with the disease alluded to. His remarks at that time are the oral slander charged. The association declined to rescind the vote of January, 1845, but passed a

preamble and vote, adopting the result of the Exeter council, and concluding that the plaintiff for the matter charged on him at that council, and for his persistent denial thereof, should be separated from his connection with the association. The report recites in full the proceedings at this meeting. All this took place in the presence of the plaintiff, and while the requests urged by him were under discussion. The defendant was called on for his vote on the subject of those requests and for his reasons, and he gave them.

The general tenor of the case is, that there was a specific request by the plaintiff that a certain vote might be rescinded, that he was heard on the subject, that a final vote was taken, and that the defendant gave the reasons on which his own vote was grounded. Now were these reasons privileged communications ? This depends on the questions whether the defendant was actuated by malice, and if not, whether he was authorized to make such communications at that time and place, and whether he exceeded or not the proper bounds of privileged communications in what he said.

Now these were questions of fact, proper for the referees to inquire into, and it appears that they did inquire, and decide concerning them. The report then states the ground assumed by the plaintiff, that the vote of the 7th of.

January, 1845, was a libel; that its remaining on record, and especially its being read in the presence of two clergymen, casually present and not members of the association, and the vote not to rescind it, were republications within two years; that the defendant having voted for these proceedings, and exerted his influence in their favor, is responsible for them, and that no defence will avail him, but proving the truth of the allegations.

To this the defendant answers that clerical associations are by law privileged to institute inquiries into the conduct of their members, to pass votes of expulsion against them, and to record their proceedings, provided it be done in good faith and without malice, and that he is not bound to prove the truth of the allegations made in this association. These are the allegations of the respective parties.

Then the referees say they are of opinion that a person acting in the discharge of any duty, legal or moral, and in good faith, is privileged in making accusations against another, without being held to prove their truth, if they are made on proper occasions, and they cite authorities in support of this proposition. Now this is a distinct legal opinion, but it is undoubtedly correct. This is admitted by the plaintiff, but he denies that this was a proper occasion. But this was a question for the referees to consider and decide.

The referees then go on to say they believe that, in this commonwealth, all denominations of Christians are privileged to maintain the discipline of their respective churches according to their various usages, including the making of complaints and accusations, the production and discussion of evidence, and the recording of their proceedings, and cases are cited in support of this opinion also. Now this is undoubtedly true, but the allegation on the other side is, that it is merely an abstract proposition, which does not apply to the case.

To this we say as before, the question of its applicability was to a great extent one for the referees alone to settle, and how far they acted upon it, is a question of fact upon which we have no information. But it was urged by the counsel for the plaintiff that the rights of churches were not at all in question here, and it was contended in an able argument that if churches had such authority, that would not tend to show that an association of ministers had it.

It is probably true that congregational churches are independent of each other, but still there may be a common jurisdiction to which they voluntarily submit. The question here is, how far have voluntary associations, like the one in question, authority to proceed, as by consent, in the trial of charges against their own members. This depends, of course, on the nature of the association, and the rights and duties resulting from the connection of its members with it. In the case of a church, it depends upon the terms of their fundamental agreement.

Certain rights doubtless belong.to churches, by usage, but these rights may be varied by agreement or covenant, as it is generally termed, and churches generally have covenants as the fundamental laws of their organization. ' Now, therefore, when the referees say that all denominations of Christians are privileged to maintain then discipline according to their respective usages, it is said by the plaintiff’s counsel that this may be true, but the referees are mistaken in applying the rule to this case; thqy have made the mistake of considering this association as a church.

But they may have put it only by way of analogy, and there are analogies between the rights and usages of these two classes of societies. Thus, it is the practice with churches to recommend by vote their retiring members to other churches, in certain cases. Though this society is not identical with a church, there may be some analogies between the two, which the referees might properly have considered. Certainly, there is here no such obvious mistake of law as will authorize the court to set aside the award, and yet this is, I believe, the strongest case presented by the argument.

The referees next say it was further urged, that as all the evidence, which could be adduced, was heard by the jury on the trial of the indictment, and considered insufficient to convict the plaintiff of the crime in question, and this was known to the defendant, he was bound, after the verdict, if not before, to consider the plaintiff innocent, and consequently, his vote and remarks at the meeting at which the case was reconsidered, were malicious, and of course actionable.

But, they add, the referees are of opinion that there may be cases in which it would be proper for a jury to acquit a person charged with crime, in which it would not necessarily follow that an association of clergymen should be so far bound by the verdict as to regard and treat the individual acquitted as an innocent and moral man; that while the verdict is entitled to great weight, and ought to be regarded as prima facie evidence of innocence, yet that such an association is not bound to regard it as conclusive; that when the plaintiff asked to be restored to his standing by the rescinding of their vote, and also requested to be recommended to another association, it became proper for them to discuss the matter, and to act on it according to their convictions of truth and duty.

Here the opinion is stated that the verdict of a jury is not conclusive as to the moral innocence of an accused party, though it is entitled to great respect. And this is time. If it were conclusive, the plaintiff might have stood upon it. But he made a request that the question might be reexamined, and of course upon such request the whple inquiry was open. The verdict was between other parties, and the court and jury proceeded alio intuitu,; the guilt of the plaintiff must have been proved to them beyond a reasonable doubt, and upon legal evidence, to warrant a conviction.

We coincide with the referees that there may be circumstances which would warrant such an association in discussing the question of a party’s guilt after a verdict in his favor, and if there may be such circumstances, the referees were then to judge whether the circumstances before mentioned were such. If the question was one suitable for discussion, the association were then to decide it according to their convictions of truth and duty.

With a view to show that they may, in all probability, have so decided the question, the referees give in detail a considerable number of circumstances which would naturally have influenced their decision. They say it is proved that before the alleged slanderous words were uttered, it was publicly known that the plaintiff had been charged with being the father of an illegitimate child, he being at the time a married 'man; that money was demanded of him by the mother of the child for its support, on the ground of his being the father of the child, and that he paid money on this demand.

It is also proved that he wrote a letter to the mother of the child on the subject of thia demand, and concerning his intercourse with her, of an equivocal character, and calculated to excite suspicion of his guilt. On the disclosure to the pubEc of this charge, payment of money, and writing this letter, the plaintiff resigned his office of pastor of a church, and attempted to commit suicide. A. B. Ely, for the plaintiff. J. M. Bell, for the defendant.

These circumstances are detailed to show, that, though the verdict of the jury is to be considered right, yet it might not be conclusive proof of the innocence of the party to the mind of a person of common candor and discrimination. There appears in all this, no violation of any absolute rule of law, and we cannot proceed, on the face of the award, to set it aside. The referees say, in conclusion, that, as the plaintiff, under the circumstances of this case, is bound to prove malice in the defendant, they think he has not sustained his action.

Here is no gross, plain, erroneous mistake of law, such as would authorize a court to interfere with the award; and, in conclusion, the award is accepted, and judgment must be entered for the defendant. Judgment for the defendant. A copy of this report may be found in the “ Monthly Law Reporter,” of September, 1851, page 278. but it is unnecessary to recite it here.