McMillan v. Birch

• Decision Date: 13 September 1806
• Citation: 1 Binn. 178,2 Am.Dec. 426
• Parties: McMILLAN v. BIRCH.
• Court: Pennsylvania Supreme Court

1 Binn. 178

2 Am.Dec. 426

McMILLAN v. BIRCH.

Supreme Court of Pennsylvania.

September 13, 1806

IN ERROR.

To call a clergyman a drunkard is actionable. Words spoken by the defendant of and to the plaintiff before a church Presbytery, in the course of his defence against charges there brought against him by the plaintiff, are not actionable, if he does not wander designedly from the point in question, for the purpose of uttering them.

Qu. Whether being refused admission into a Presbytery is such special damage as the law will take notice of.

THIS cause came before the court by writ of error from the Circuit Court of Washington county.

It was an action of slander brought by Birch against M'Millan, for calling him " a liar, a drunkard, and a preacher of the devil." The declaration stated that the plaintiff was " a man of learning integrity, and piety, and that for twenty eight years last past he had been and then was a minister of the gospel in the Presbyterian church, and had taken upon himself the orders of the same." It also laid a special damage in consequence of the slander, viz. that the plaintiff was refused admission into the Presbytery of Huntingdon as a member. Pleas, not guilty, act of limitation, and justification.

It was proved at the trial of the cause, that the plaintiff was a Presbyterian minister, regularly ordained in Ireland; that he came to the United States in 1798, and on producing his credentials to the standing committee of the Presbyterian church in Philadelphia, was permitted to preach there; that he afterwards came with his family to Washington county; that upon an application made to the Ohio Presbytery, he was rejected for want of experimental knowledge; and that he appealed from their sentence to the General Assembly, who, after examining and considering the case, did not pass any censure on the Ohio Presbytery, but determined that they found no ground why any Presbytery should not take the plaintiff up, and proceed with him agreeably to the rules and regulations in such cases provided.

The plaintiff afterwards cited the defendant, who was also a clergyman, before the Presbytery of Ohio, to answer for slander and for unchristian threatenings. The defendant appeared and was heard in his defence. The Presbytery acquitted the defendant of the charges brought against him except for calling the plaintiff " a preacher of the devil," for which they reprimanded the defendant, and he submitted. The plaintiff appealed again to the General Assembly; but apprehending that he should not obtain a favourable decision, in consequence of his having committed some irregularities in Washington county, by administering the sacrament and ordaining elders, in violation of the rules of the church, he gave up his appeal and withdrew from the jurisdiction of the General Assembly after which the Assembly determined that they would have nothing more to do with him, and that he never had been in union with the Presbyterian church in the United State, so as to be authorized to preach as one of their ministers.

The plaintiff proved also as laid in the declaration, that he failed in his application for admission into the Presbytery of Huntingdon.

The words laid in the declaration, or some of them, were spoken of and to the plaintiff in the Presbytery of Ohio, while the defendant was making his defence against the plaintiff's charge.

The cause was heard before Judges YEATES and SMITH, in October 1804; and the counsel for the defendant, among other things objected 1st, that the action could not be maintained by the plaintiff for words spoken of him in his profession of a minister of the Presbyterian church, because the evidence shewed that he did not hold that office; and 2dly, that words spoken by the defendant in Presbytery, while making his defence against the plaintiff's charge, were not actionable. Upon both points the court charged for the plaintiff, and sealed a bill of exceptions. The jury found for the plaintiff.

Ross and Addison for the plaintiff in error, made four points: 1st, that the plaintiff below stated in his declaration that he had been twenty eight years a clergyman of the Presbyterian church, and was so then. But it was proved that he never was a clergyman of that church in the United States; therefore he failed in supporting his action. 2d, That the words laid were not actionable, if spoken of a person not a clergyman. 3d, That the special damage laid was not of a civil but ecclesiastical nature, which the law would not notice. 4th, That the words spoken by the defendant in his defence before the Presbytery, were not actionable.

1. The plaintiff must prove his case as it is laid in his declaration, and should have shewn that he was a clergyman of the Presbyterian church at the time the words were spoken. Collis v. Malin. ^[a] If a barrister bring an action for words which are a disgrace to him in his profession, he must aver that at the time of publishing them he was a practising lawyer. He must aver that he was " homo conciliarius in lege; " " homo eruditus " will not do. 6 Bac. Abr. ( Gwill. ) 216. 218. 219. 1 Com. Dig. 276. The principle upon which these and all the cases upon the same point proceed, is this, that the words being actionable only as they are spoken of persons in a particular trade or profession, it must be shewn that the plaintiff was of that trade or profession at the time of the words spoken, or the very essence of the action is wanting. We have in this case the highest authority of the Presbyterian church for saying that the plaintiff never has been a minister of that church in the United States. His having been so in Ireland, according to Collis v. Malin will not answer. It was there laid that the plaintiff had used per magnum tempus the trade of buying and selling & c; but because it was not stated that he used it at the time the words were spoken, it was adjudged for the defendant.

2. No charge of a general misfeasance is actionable, unless the words are applied to the trade or calling. 1 Com. Dig. 268, 9. Stanhope v. Blith ^[b] , Savile v. Jardine ^[c]. In order to make words actionable, they either must contain an express imputation of some crime liable to punishment, some capital offence or other infamous crime or misdemeanor, or they must be spoken of one in an office of profit, which may probably occasion the loss of his office, or of persons touching their respective professions trades and business, and do or may probably tend to their damage. Onslow v. Horne. ^[d] The words " liar and drunkard" may be used with impunity; they are expressions of anger, and not of malice. 3 Bl. Comm. 124. note 5 Chr. And as to the phrase " preacher of the Devil," it certainly is no worse than " brazen faced Belzebub," or " Devil," or " " prince of darkness," which are not suable, because they import passion, but no crime or discredit. Smith v. Wood. ^[e] The rule in Smale v. Hammon, ^[f] that where the words spoken tend to the disgrace infamy or discredit of the party, they are actionable, has been repeatedly overruled. Holt v. Schoffield. ^[g]

3. This point was not made at the trial. If the words are not actionable in themselves, this kind of damage cannot make them so. The law has no measure for it; it is arbitrary to the last degree. It is an injury purely ecclesiastical; for the Presbytery has no salary, no living, no preferment; and if the plaintiff could not gain admission in one place, he might have gone to another. The special damage must be of a temporal nature; and so it is universally laid.

4. The plaintiff complained to the Presbytery of the words laid in the declaration; and at his instance the defendant appeared and went into his defence. If he had travelled out of his case to slander the plaintiff, it is unnecessary to say what the law would be; but it was in the very matter charged that the words were used, and they were therefore justifiable from the occasion of using them. The original words are out of the question; they were barred by the statute. There is no head of the law in which the cases are more uniform than in this and they turn upon a principle which at once favours the peace of society, and the security of the individual; that where there is a proper occasion for speaking the words, the law will not imply malice even from their falsehood. It is on this ground that a servant cannot maintain an action against his former master, for words spoken in giving his character, unless he prove both malice and falsehood; even though the master make specific charges of fraud. Weatherston v. Hawkins. ^[a] In a court of justice it is essential that the defendant be allowed to speak freely in his defence; and where a charge or recrimination is made by him upon the point in question, an action will not lie. It was thus ruled, where the defendant by his affidavit exhibited in court, alleged that the plaintiff had sworn falsely. Astly v. Young. ^[b] The same of words spoken before a justice of the peace, upon a question of binding to good behaviour. Cutler v. Dixon. ^[c] So of a bill exhibited to the Starchamber, which is not a court of record, provided the court had jurisdiction of the matter. Buckley v. Wood. ^[d] And so where in a suit in the spiritual court, the defendant put in an exception to a witness, that he was perjured; because said the court, it is in the course of justice, and not ex malitia. Weston v. Dobniel. ^[e] The law extends the privilege to the counsel of a party, who may justify even a charge of felony, as being spoken in the legal and necessary exercise of his profession. Brook v. Montague. ^[a] Now that this matter was before a competent tribunal cannot be disputed. It does not indeed proceed by temporal punishment, but it had in this instance a...