
    Jarvis against Hatheway.
    NEW-YORK,
    May, 1808.
    «If words, actionable in themselves, be Spoken between members of the same church, in the course of their Religious discipline, and without ■malice, no action will lie ; and the jury are to decide •whether there Be malice or not. in actions of a penal or vindictive nature, the court ■will not grant a new trial merely because the verdict is against the weight of evidence, unless some rule of law has been violated.
    THIS, was an action of slander. The cause was tried before Mr. Justice Thompson, at the Oneida circuit, on the 8th of June, 1807.
    On the trial, the plaintiff proved, that the defendant, in the presence and hearing of C. and D. addressing himself to the plaintiff, said, “ you are guilty of forgery,” and, as stated by a second witness, “ you are guilty of' absolute forgerywhich were the words charged in the declaration.
    On the cross-examination of the witnesses, it appeared, that the words were spoken at a meeting of the parties, before the witnesses, C. and D. who were two members of the same church to which the parties belonged, and • were convened for the express purpose of taking “ the second step of labour in church discipline, and were with the parties alone, and acting under the rules of the church,' and in pursuance of the precept or rule contained in the 18th chapter of the evangelist Matthew f which was set forth by the defendant in his notice, annexed to the plea in the cause, to whicli plea was also annexed a notice of justification of the truth of the charge in the declaration. The defendant called no witness.
    The judge charged the jury, that fhe words proved to have been spoken by the defendant, were of themselves actionable, but that they ought to be satisfied that they were, spoken maliciously, or with a defamatory intent; that the circumstances under which the charge was made against the plaintiff, were proper to be taken into consideration, to determine the intention with which it was made. If it was made in the regular course of church discipline, and with an honest intention of examining whether the plaintiff was a fit member of the church, he was not, in his opinion, entitled to recover : But if the charge was unfounded, and made with an intention of injuring the feelings and reputation of the plaintiff, the Circumstances under which it was made, was an aggfavation of the slander. The jury found a verdict for the defendant.
    A motion was made by the plaintiff to set aside the verdict, and for a new trial;
    
    1. For the misdirection of the judge.
    2. Because the verdict was against evidence.
    
      Gold, for the plaintiff.
    The words charged in the declaration, and proved, were absolute and unqualified. No probable cause or justification as to the truth of them,' was offered or shown by the defendant. The offence charged against the plaintiff, was not a breach of any of the duties of imperfect obligation, but a crime for which the laws have provided a very severe punishment. Courts of j ustice ought not to countenance ecclesiastical assemblies in taking cognizance of such offences, and by thus hushing them up, to prevent that due course' of justice by which the party might be effectually restrained from a repetition of the crime. Where a person exhibits an accusation against another, in the ordinary course of justice, before a court having jurisdiction of the offence charged, no doubt an action will not lie; but if the of-fence is not examinable before such tribunal, the party may have his action. Thus in the case of Buckley v. Wood, it was decided, that where the defendant exhibited articles before the court of star chamber, against the plaintiff, charging him with matters properly cognizable there, and also with murder and piracy, which were not examinable in that court, an action of slander would lie, for as that court had no jurisdiction of murder or piracy, the bill was not a proceeding in a court of justice. In the present case, there was no formal complaint or aliegation, no specific circumstances stated, which could enable the plaintiff to meet or repel the charge. No process was issued, nor was the matter brought before any court known to our laws, or possessing a legal jurisdiction.
    
      
      Hatheway, contra.
    In eases of this kind, the occasion Qf speaking the slanderous words, or the circumstances under which they are published, is always to be taken into consideration j and if there be clearly no malice, the jury may find for the defendant. They are the proper judges of the intent. For words published in the course of seeking a redress for grievances, before the proper per-sons to afford redress, no Action lies. As where the deputy governor of Greenwich Hospital, in a book giving an account of the abuses of the hospital, reflected on Lord Sandwich, one of the officers, with great asperity, it was held that it was no libel. Nor will an action lie for words, spoken conscientiously, or in confidence, without any malice, or evil. [The Counsel was here stopped by the court.]
    
      Gold, in reply. It is true# that for censures or words published by a member of a society, or sect, in relation to their rules and ordinances# and which relate merely to discipline, no action will lie; but this extends only to matters properly cognizable before such society, and in which the members only are concerned j not to crimes in which the whole community are interested. In all the eases cited, there was some good end, some purpose of morality or justice to be answered. But suppose the deputy governor of Greenwich Hospital had published that Lord Sandwich had been guilty of murder, would this not have been considered as malicious, and a libel ? The jury, no doubt, are to decide whether there be malice or not # but unless they decide according to evidence, or there be proof that there was no malicious intent, their Verdict ought not to stand.
    
      
      
        4 Co. 14. See also Bac. Ab. Slander. (E.)
      
    
    
      
      
        Esp. Dig. 506.
    
    
      
      
        Buller’s N. P. 8, 9, 10. 1 Wm. Black. 386.
    
   Spencer, J.

delivered the opinion of the court. The plaintiff’s counsel have considered the charge of the judge As incorrect, in leaving it to the jury to decide whether the words spoken, which were actionable in themselves, were spoken maliciously, or with a defamatory intention.

I am perfectly satisfied, that the charge to the jury was aot only correct, but that no- other charge could have been legally given. It is manifest, from the case, thát the words were tittered in the course of church discipline, by the defendant to the plaintiif, who were both church members ; and whether such discipline was proper or not, is not a point for us to determine. Every sect of Christians are at liberty to adopt such proceedings for their regulation as they see fit, ndt inconsistent With law, or injurious to the rights of others'. In actions of slander, it is of the essence of the action, that the words be spoken maliciously, and that, as a matter of fact, belongs to the jury to determine.

If, however, the weight of evidence was against the defendant, as to the maliciousness of the words, it would be violating a salutary rule to grant á new trial. In penal actions, in actions for a libel and for defamation, and other actions vindictive in their nature, unless some rule of law be violated, in the admission or rejection of evidence, or in the exposition of the law to the jury, or there has been tampering with the jury, the court will not give a second chance of success.

We are, therefore, of opinion, that the motion for a new trial must be denied.

Rule refused* 
      
       1 Burr. 54. 2 Salk. 644—8.
     