
    Ezekiel Remington versus William Congdon et al.
    
    Where a member of a church had consented that the church should investigate any complaint which might be preferred against him in writing by a person not a member, it was held that an action for a libel could not be sustained against such person making such complaint, without showing express malice.
    If the judge should state to the jury that there was no evidence of express malice, when there was slight evidence of it, but not sufficient to sustain a verdict, this would not be a sufficient reason for granting a new trial.
    Evidence tending to prove the truth of the charges in such complaint, may be admitted under the general issue, for the purpose of showing probable cause for the complaint and rebutting any presumption of malice.
    This was an action for a libel published by the defendants concerning the plaintiff. Plea, the general issue.
    At the trial, before Wilde J., the plaintiff, in support of his action, showed the writing containing the supposed libel, which was a complaint made to a Baptist church, whereof the plaintiff was a member, charging him with having sworn falsely when under oath.
    The complaint was made out on the 27th of September and' received by the church on the 15th of October. This action was commenced on the 11th of October.
    The defendants produced the records of the church, to show that the church received the complaint and examined witnesses in support of it, and after some adjournments finally decided that the complaint was substantiated, and that the church should therefore withdraw the hand of fellow ship from the plaintiff and send him a letter of admonition. The records were verified by witnesses who were examined relative to the proceedings and statements before the church, and thereupon the defendants rested their cause, the judge thinking that they had shown prima facie evidence of a probable cause of complaint.
    The plaintiff’s counsel being called upon to show want of probable cause, objected that they did not know what they had to reply to, as the church was not authorized to take cognizance of such a complaint, it being so vague and charging such a crime, and being made by men who it ere not members of the church; and further, that the recorded statement was not made on oath, and that part of it was made by one of the defendants, and that too after the commencement of this action. The judge decided, that the complaint was such that the church might well receive and act upon it, and that the statement’s being made after the commencement of the action was immaterial, as it was made in the course of proceedings before the church ; but that that part of it which was made by one of the defendants, was not to be admitted in favor of the defendants. The plaintiff then called witnesses to show that the proceedings of the church, after the complaint had been received, were irregular, and without due notice to him, and that only a few members were present when the decision before mentioned was made.
    The defendants offered and read to the jury several depositions stating what the plaintiff had sworn to before certain referees, and that what he had sworn to was false.
    The defendants also attempted to show that the plaintiff, at a meeting of the church before the complaint was made, challenged any written complaint for any matter against him. The plaintiff showed that what he then said' was at a covenant meeting of church members, and that he said he should prefer, if any complaint were made, that it should be in writing, and that he was willing to have the reports in circulation looked into by the church; and a witness testified that the church had previously voted not to receive any complaint unless it were in writing.
    The judge instructed the jury, that a complaint made against a member of a church, in the way of church discipline, was excusable, if there was probable cause for making it; that the decision of the church sustaining the complaint in this case, was prima facie evidence of probable cause ; that if there was probable cause, it was incumbent on the plaintiff to show express malice on the part of the defendants ; and that he had shown no evidence of that, except that one of the defendants was his brother.
    The jury having found a verdict for the defendants, the plaintiff filed his exceptions to the admission of the foregoing evidence and to the instructions of the judge.
    
      
      E. H. Mills and H. Hubbard,
    
    in support of the ex ceptioris, contended that in an action, for a libel it is no comPetent, under the general issue, to give the truth in evidence. The plaintiff has only to prove the publishing. The general issue admits that the words are false, and the law infers malice. Larned v. Buffington, 3 Mass. R. 546 ; Wolcott v. Hall, 5 Mass. R. 514. There are some exceptions, as in giving the character of a servant &c., but this case does not come within these exceptions.
    The records of the church were not admissible in evidence. It appears by them that the complaint was not received until after the plaintiff had brought his action. The church should not have received the complaint, because it was made by persons who were not members, and were not liable to a church censure for a false complaint. The challenge, if any, to make a written complaint, was given only to members of the church. So too the church had no ju risdiction over the witnesses who were not members. They could not be compelled to speak the truth by the obligation of an oath or by the fear of a church censure. The proceedings of the church were extrajudicial and void. A church has no right to try a member for perjury ; and here the plaintiff had refused to submit to the discipline of the church, as to the matter' contained in the libel. The decision was made by a few members only, without notice to the plaintiff, and should not have been admitted as prima facie evidence of probable cause. But the inquiry at the trial was not whether there was probable cause, for evidence of that goes only in mitigation of damages, and is no defence under the general issue. If there was however prima facie probable cause, the judge was wrong in stating that it was incumbent on the plaintiff to prove express malice, and that there was no evidence of express malice.
    
      Gold senior, Jarvis and Dewey, for the defendants.
    It is incumbent on the plaintiff to show the writing to have been published falsely and maliciously. The mere publishing does not in all cases afford a presumption of malice ; but the circumstances of publishing are to be taken into consideration. Various decisions have been made with reference to this principle. Weatherston v. Hawkins, 1 T. R. 110 ; Brook v. Montague, Cro. Jac. 90 ; Blanchard v. Thorn, 5 Johns. R. 508. A defendant may show that the complaint was made to a body which was competent to redress grievances; it is not necessary that it should be addressed to a court which has power to try for the crime, nor that the complaint should prove to be well founded. Rex v. Baillie, 2 Esp. Dig. 91 ; Fowler v. Homer, 3 Campb. 296 ; Jarvis v. Hatheway, 3 Johns. R. 180 ; M'Millan v. Birch, 1 Binn. 178. The plaintiff should allege that the accusation was made without probable cause. Without controverting the principle, that the truth of a libel is not to be given in evidence as a justification under the general issue, we say that in this case it was properly admitted for the purpose of showing probable cause. 2 Phillipps on Evidence, 108. It was not necessary for the defendants to prove that the proceedings of the church were regular. It was sufficient that the complaint was made in the regular course of church discipline. The plaintiff wasi properly called upon to show express malice. If he had proved that the charge was false, it would have had a tendency to show this ; but he did not, nor did he prove malice by any declarations of the defendants.
    The opinion of the Court was read at May term, as drawn up by
   Parker C. J.

... It was objected in this case that the truth of the matter charged as libellous was allowed to go to the jury, in defence, under the general issue. We do not find that it was so ruled at the trial. The defence was, that the matter complained of was made the subject of accusation to the church, of which the plaintiff was a member ; that this body sustained the complaint, acted upon it, and finally withdrew all fellowship from the plaintiff on account of it, it having been substantiated to their satisfaction. Now the law is, that accusations made to a body competent to try the of-fence, cannot be made the subject of an action for slander. All proceedings in courts of justice come within this rule ; so that if the party accusing honestly intended to prefer a complaint, and not to abuse this privilege for the purpose of slandering his adversary, although the matter contained in the complaint would be otherwise libellous, and should be untrue, it cannot be the foundation of an action of this nature. The proper remedy in such cases, is by action for malicious prosecution ; and then if there was no probable cause, and the accuser was influenced by malicious designs, the party injured will obtain satisfaction. 2 Phillipps on Evidence, 109 ; Thorn v. Blanchard, 5 Johns. R. 508 ; Rex v Baillie, 2 Esp. Dig. 91 ; Jarvis v. Hatheway, 3 Johns. R. 180.

It has been objected that this rule will be applicable only in cases where both parties are members of the church ; but if the church sustain the complaint, and the accused submit to their dealing and discipline, it is enough, without evidence of express malice, to excuse the defendant. There was evidence in the case, that the plaintiff intimated a desire or willingness that an inquiry should be made by the church upon a written complaint, there having been previously verbal accusations against him to some members of the church. That the church meeting, after receiving the complaint and partially acting upon it, was dissolved, and a new meeting called at which the decision was had, the plaintiff not being present or notified, may show that injustice was done him by the church, but will not affect the defence, which rests only on the institution of the complaint for the purpose of causing an inquiry in the ordinary way ; the subsequent proceedings were not under the control of the defendants, and however irregular they may have been, cannot prejudice their defence, it being sufficient for the defendants to rebut malice, which might otherwise be presumed from the mere writing or publishing of the complaint, to show that they made their disclosure to a body, who by consent of the plaintiff exercised a watchfulness over his conduct and actions, and to whose censure and discipline he had submitted himself by entering into communion with them. We do not mean to decide that a complaint, containing defamatory matter, to a church against one of its members, by one who is not a member, is not actionable ; but ground our opinion in this case upon the voluntary submission by the plaintiff to the investigation by the church, which he might have refused and resorted to law for his redress.

Had the plaintiff proved, either by showing that there was no probable cause for this complaint, or by other facts, that this measure was resorted to as a pretence, and as a cover to a malicious design to slander the good name of the plaintiff, he would have avoided the defence ;* but it appears by the report, that there was no such evidence, and the verdict of the jury imports that the defendants acted bond fide, in making their complaint.

It is true one of the objections to the verdict is, that the judge stated to the jury that there was no evidence of express malice ; this cannot be complained of, unless it is shown that there was evidence of that nature. We must suppose the plaintiff’s counsel have made the best of their case in the exceptions drawn up by themselves, and as these contain no evidence of malice, we must suppose there was no such" evidence in the case. Had there been competent evidence of malice, although, in the opinion of the judge, not of much weight, so that the declaration that there was no evidence might be construed into an opinion of the effect of such as was offered, this might be incorrect. But even upon that supposition, if the evidence should now appear to us' to be slight, a new trial in a cause of this nature would not be granted for that reason alone ; for it would be idle to send a cause to a new trial upon evidence, which if received would not be sufficient to support a verdict. There was, it seems, evidence offered and read by the defendants tending to prove the truth of the charges in the complaint, other than what resulted from the decision of the church ; but this must be considered as produced to show a probable cause for the complaint, and to rebut any presumption of malice, and so far it was properly received. Had the church refused to receive the complaint, or had the plaintiff objected to it because it did not come from a church member, the action must have been tried by the common principles applied to this kind of action. But as the complaint was sustained, and the plaintiff was willing to put himself upon his defence before the church in the first instance, we think that the principles which have been applied to cases of complaint by one member against another are applicable to this case ; and those principles are settled in the cases in 1 W. Bl. 386 (The King v. Hart) ; 3 Johns. R. 180 ; 2 Phillipps on Evidence, 109.

For these reasons we are of opinion that judgment must be entered on the verdict. 
      
      
        Woodward v. Lander, 6 Carr. & Payne, 548 ; Cockayne v. Hodgkisson 5 Carr. & Payne, 543 ; Warr v. Jolly, 6 Carr. & Payne, 497.
     
      
      
        Gray v. Pentland, 2 Serg. & Rawle, 23 ; Lake v. King, 1 Saund. 131
     
      
      
        Bodwell v. Osgood, 3 Pick. 379 ; Bradley v. Heath, 12 Pick. 164 ; Bromage v. Prosser, 4 Barn. & Cressw. 247 ; Hawk. P. C. c. 73, § 8 ; 1 Saund. 132, Wms’s note ; Gray v. Pentland, 4 Serg. & Rawle, 423 ; Milom v. Burnsides, 1 Nott & M'Cord, 426, n ; Stark. on Slander, (Amer. ed.) 140. So if he could show that the charges were made to a court not competent to try the case, it has been held that the defence would be avoided. 2 Inst. 228. Though it is said by Hawkins, that the counsel of the party, and not the party himself, would be liable for the mistake. Hawk. P. C. c. 73, § 8.
     
      
       See the remarks of Shaw C. J. in Bradley v. Heath, 12 Pick. 164.
     