for the injury sustained, without relation to the motive of the act; in the latter case the motives of the defendant must be inquired into as forming part of the very essence of the suit.

that they were occasioned by the malicious conduct of the defendants. The proof of malice may be either positive, or it may be collected from the circumstances of the case. The jury are to judge of the testimony, and thence determine whether or not there has been malice. Among the circumstances from which the jury may infer malice is the want of probable cause. This, however, may or may not amount to sufficient evidence of malice. The jury are to judge.

Though the plaintiff alleges that he has suffered injury through the conspiracy of the defendants, yet this is only an action on the case in the nature of a conspiracy; the words in the declaration "by conspiracy among them had, "are but matters of aggravation, and are not necessary to be proved to support the action. The In addition to the proof of malice, there must be proof damage sustained by the party is the substance of the of the want of probable cause. No matter how malicious action, and not the conspiracy. Hence a verdict against the conduct of the defendants may have been; yet if one defendant only,acquitting all the rest, would be good. there was probable cause, this action will not lie. It is not to be overlooked that in actions of this kind, These are uncontrovertible rules of law; and when the plaintiff has some advantages in relation to the pro- the grounds of them are investigated, it is found that duction and exclusion of testimony. Of the persons ac-sound policy and good sense unite in giving a sanction quainted with the facts, he may select such as will suit to them. They cannot be too earnestly pressed upon his purposes for witnesses, and by inserting the names your attention. of the others in the writ and giving some evidence, no matter how slight, to connect them with the doing of the acts complained of, he may exclude their testimony from the court and jury. The jury, however, while they will give a plaintiff just protection, will always take care that the defendants are not injured by an abuse of this privilege.

It is also proper to remark, that while proper actions for malicious torts will be sustained by courts and juries, still, as a general rule, such actions are not to be encouraged. We are not to be astute in looking for improper motives. The plaintiff in every instance must fully prove his case.

Doubts have been sometimes expressed as to the precise duty of the court and jury respectively, in regard to probable cause. In this case, however, no difficulty on that head need be felt. After explaining to you the meaning of probable cause, I will leave the application to the facts entirely to your own discretion and judgment.

I adopt the views of an eminent Judge, when I say, I understand the term probable cause, to mean, "a reasonable ground of suspicion, supported by facts sufficiently strong in themselves to warrant a cautious man in the belief that the person accused, is guilty of the of fence of which he is charged."

The general views having been stated, it becomes proper for us to look to the exact question to be de. cided.

The cause before you is in many respects different An innocent man may become an object of suspicion from the ordinary action for damages sustained by a and of a prosecution founded in motives of resentment; malicious prosecution in an alleged criminal matter, or but if he has intentionally acted in such a manner as to an action for a malicious arrest under civil process. In furnish to a reasonable mind ground for the suspicion, he those actions we refer to proceedings in the legal tribu- must submit to the consequences of his own conduct. nals of the country;-in this, the plaintiff shows proceed- He cannot claim the aid of the law to compensate him ings against him by the authorities (claiming to be for the losses to which he has exposed himself. duly constituted) of a corporation, and decisions against him by those authorities:-namely, the minister in charge; the committee appointed to try him; and the quarterly conference. Again, in those actions the plaintiff must allege and prove that the proceedings complained of, had actually terminated in his favour. In the present instance the plaintiff makes no such alle-class leader. gation, and it is part of the case that the removal from his place as class leader, and the expulsion from his membership in the corporation are in full force. In those actions, the persons constituting the tribunals, whether magistrates, judges, or jurors, cannot be assailed, while here-the plaintiff has included in his writ many of the individuals who composed the tribunals which decided against him.

I have already stated that the legal effects of this difference need not be considered now ;-it being comprehended in the matters for review hereafter, if you find for the plaintiff on the merits.

This action is however so far analagous to those just referred to, that the plaintiff alleges oppression, malice, and want of just or reasonable cause. On this subject the principles of law, which govern those actions, must control the present one also. The plaintiff admits this by his declaration and the course of the argument. It is yielding to him all that can possibly be asked, to regard him as standing upon the ground of a party brought before the civil tribunals, and regularly acquitted and dis. charged. If his case cannot be made out upon these principles, it certainly cannot be made out at all.

The plaintiff must then prove the malice of the defendants, and the want of probable cause for their proceedings in regard to him. No matter what errors in point of fact the defendants may have committed, yet if they were honest errors ;-if there was no malice, and no want of probable cause, this suit cannot be sustained.

Malice is a necessary ingredient. The injury and the damage to the plaintiff must be proved, and further

The whole case will be found to be comprehended in two points.

1. The removal of the plaintiff from his station as a

2. The expulsion of the plaintiff from the church, and his consequently being deprived of his rights as a corporator.

The third allegation of the plaintiff, relative to a public declaration from the pulpit of his expulsion, is not relied on, and has not been proved.

Then as to the removal from the station of class leader.

What is a leader?

A book has been given in evidence, and referred to by both parties, as containing "The doctrines and discipline of the Methodist Episcopal Church."

In the first section of the second chapter of this work, it is stated that:

"Each society is divided into smaller companies, called classes, according to their respective places of abode. There are about twelve persons in a class; one of whom is styled the Leader-It is his duty,

I. To see each person in his class once a week at least; in order,

1. To inquire how their souls prosper :

2. To advise, reprove, comfort, or exhort, as occasion may require :

3. To receive what they are willing to give, towards the relief of the preachers, church, and poor. II. To meet the ministers and the stewards of the society once a week; in order,

1. To inform the minister of any that are sick, or of any that walk disorderly, and will not be reproved. 2. To pay the stewards what they have received of their several classes in the week preceding." In the second section of the second chapter, there is

this question with the answer. "Ques. 2. Can anything
more be done in order to make the class meetings lively
and profitable?

Answ. Change improper leaders."

And in the ninth Section of the first chapter it is declared to be one of the duties of a preacher in charge of a circuit, "to appoint all the leaders, and to change them when he sees it necessary."

Mr. Shermer complains of injustice-the subject is kept alive, and a trial before a committee of the congregation is ordered. [The judge here read from his notes, some of the testimony of the witnesses.]

A question was made in regard to the demand for
this trial. From the record of its proceedings, and
from the statement which Mr. Thatcher made to Mr.
Shermer without contradiction, it would be fair to pre-
sume that Mr. Shermer called for it. However, this
cannot be of much importance.

The plaintiff, in joining this society, made all these
provisions the law for himself. They formed; as to this
matter, the rule between him and every other member The trial before the committee is the second feature
of the Methodist Episcopal Church. As there is nothing of this transaction, and as it led to the expulsion of the
in them inconsistent with the law of the land, he is not plaintiff from the church, it furnishes, what his counsel
at liberty to come into a civil court and question either have properly stated it to be, the main ground of this
their expediency or their legitimate effects. He accept-suit. If the trial before the committee had not taken
ed his appointment as a class leader by virtue of them, place, it is not probable that an action would have been
and when Mr. Rusling became the preacher in charge. brought concerning the place of class leader. This be-
he, as such preacher, had the power to remove any lea-ing undoubtedly the great question in the cause, the
der when he saw it necessary.
jury will give it the full investigation to which it is
entitled.

The first matter in order is the accusation. Mr. Rus-
ling charged the plaintiff with,

Now, if Mr. Rusling honestly removed the plaintiff, it is not for us to inquire whether his discretion was wise. ly and prudently exercised or not. If there was no malice in his act, and no want of probable cause for it, 1. Slander, in these words: "Anthony Shermer has the court and jury have nothing to do with it. Indeed, unjustly and falsely slandered my character as a minisas this office of class leader confers no civil rights, the ter, by propagating that I had made a false statement. question was made in the argument, whether, even sup- 2. "For falsehood also, inasmuch as he did, on Thursposing that the plaintiff had stated a sufficient ground day evening last, before a class, declare that he did not of action on the other point, this could be made the sub-know why his class was taken from him. ject of a suit at law; whether, in other words, the loss of such an office, under any circumstances, could produce such a damage as the law would recognise. Whatever I might have deemed it my duty to say, had this been the only or the prominent question in the cause, I hold it right, considering the direction which the counsel on both sides have given to the case, to regard this also as a reserved question of law, and, for the present, to assume the position that the action will lie even on this part of the plaintiff's declaration.

"Philadelphia, June 19, 1829."

The next step is the appointment of the committee. In the ninth section of the first chapter of the work before mentioned, it is laid down to be one of the duties of the elder, deacon, or preacher who has the special charge of a circuit,

"To receive, try, and expel members according to the forms of discipline."

In the seventh section of the second chapter, in anBut as the malice and the want of the probable cause swer to the question, "How shall an accused member must be shown, in order to sustain it, it will be neces-be brought to trial?" it is declared as follows: sary for you to look carefully at the facts. "Ansiv. 1. Before the society of which he is a memThe two principal witnesses on the part of the plain.ber, or a select number of them, in the presence of a tiff, who give us the account of the meeting at which bishop, elder, deacon, or preacher, in the following this removal took place, are Jacob Zeigler and Jeremiah manner: Let the accused and accuser be brought face Walton. to face; but if this cannot be done, let the next best [The Judge here referred to the circumstances under evidence be procured. If the accused person be found which these witnesses appeared, and the remarks of the guilty by the decision of a majority of the members becounsel on both sides as to their credibility or accuracy, fore whom he is brought to trial, and the crime be such and after stating that these were matters exclusively as is expressly forbidden by the word of God, sufficient for the decision of the jury, proceeded to read from his to exclude a person from the kingdom of grace and notes their testimony on this head. He then referred glory, let the minister or preacher who has the charge to the testimony of John H. James, a witness on the part of the circuit, expel him. If the accused person evade a of the defendants, and after leaving the question as to trial, by absenting himself, after sufficient notice given his credibility and accuracy also exclusively to the jury, him, and the circumstances of the accusation be strong read from his notes, Mr. James' testimony also on this and presumptive, let him be esteemed as guilty, and be point.] accordingly excluded-Witnesses from without shall not be rejected."

The amount of all this testimony seems to be, that Mr. Rusling, at a leaders' meeting, requested the plaintiff Mr.Thatcher testifies that, according to his impressions to give some explanation of a charge which he said he of his duty, where the contest was between a member understood the plaintiff had been circulating, that he, Mr. and a preacher in charge, he, as the presiding elder, Rusling, had made a false statement. To a request so undertook to appoint the committee and preside at the reasonable as this, and urged, as it appears, in a becom- trial. He therefore wrote to the plaintiff the note of ing tone and manner, Mr. Shermer repeatedly declared the 19th of June, 1829, stating his views on this he would give no answer, until he (S.) had a trial with point, furnishing a copy of the charges, and requesting Enoch Burnett. No reason for the trial with Burnett Mr. Shermer to attend before the committee at the time is given, and after consultation with the meeting, Mr. and place mentioned. Mr. Thatcher says, that when Rusling, in what he alleges to be the prudent exercise he delivered the charges to the plaintiff, he (the plainof his legitimate powers, removes the plaintiff from the tiff,) expressed high satisfaction that Mr. Thatcher station of class leader. should try his case, adding, that he now should have justice done him.

The subject of the false statement, and the claim for a trial with Burnett, subsequently present themselves again, and will, hereafter, require some further notice.

So far, it would be difficult to point out any evidence of malice, or want of probable cause, in relation to this removal. If the subsequent circumstances furnish any such evidence, it will be proper for you to consider it.

a

Mr. Thatcher explains the manner in which he made selection of names for the committee, and Mr. Shermer, in his affidavit, submitted to the Supreme Court, which has been read to you, states the fact to be that Mr. Thatcher appointed the committee.

I have been thus minute on this topic, because, from something which fell from one of the witnesses, an effort

was made to show that Mr. Rusling and Mr. Matthias that Mr. Shermer refused to make any defence, threatmade the appointment of the committee. Their con- ened to appeal to the laws of his country, and withnexions with it fully appears in the evidence of Mr. drew. Thatcher.

The committee met.

Several witnesses, Messrs. Walton, Zeigler, Thatch er, and others, gave an account of what took place be

fore them.

Mr. Thatcher's testimony has been attacked by the plaintiff's counsel, under circumstances which require some notice from the Court.

It is not enough that the plaintiff shows he made objections-he must prove that he sustained damage by their being overruled;—he must also exhibit something more than a mere error of judgment; the malice and the want of probable cause should be made to appear. Now when the question as to John Gable's having prejudged the cause is examined, it appears from the statement of John Ribble, as in evidence before you, He held the station of Presiding Elder of the district; that Gable had told him that A. Shermer ought to go an office of high rank in the Methodist Episcopal out; and it is somewhere in evidence that Gable alluded church, conferred only on ministers of experience and to this as having been spoken in fun. The true queselevated character, with powers and duties which aption would have been: Has Gable formed and exprespear from the work already quoted to be of a very im-sed an opinion as to the guilt or innocence of A. Sher portant nature. He was produced as a witness by the mer in regard to the particular charges about to be plaintiff himself, and his testimony taken before arbitrators has now been read in his absence, under an agrement of counsel comprehending this and other evidence. His statement is clear, consistent, and marked with intelligence. Why then should it be questioned? It was not until it was found that it would not aid the cause of the plaintiff, who had thus produced him, that an effort was made in the argument of the plaintiff, to throw doubts upon his motives and his accuracy. In this state of the matter, I deem it my duty to say, that Mr. Then as to the claim of a trial with Burnett. Thatcher appears to me to be entitled to all respect and from some of the evidence that Burnett had declared confidence at the hands of the court and jury. While that Mr. Shermer had said that Mr. Rusling had made a I do this, however, I repeat what has been stated as to false statement. This is all the explanation we have the other witnesses, that the degree of weight which will upon this subject. This also will be finally passed upon be given to his testimony, is still to be ultimately deter-by you; but I cannot resist remarking that I am at a loss mined by the jury.

[The Judge then referred to the record of the proceedings of the committee, and read an extract from it.] Taking the whole testimony into view, it would seem, that the facts mentioned in the charges were strictly proved; namely, that Mr. Shermer had propagated, that Mr. Rusling had made a false statement; that Mr. Shermer had, in class, declared he did not know why his class was taken from him; and again, that he did know why it was taken from him.

The offences charged to be the result of the facts, and which the Committee believed to be made out by the proof of the specifications, were slander and false

tried? If no proof that he had formed such an opinion, could have been offered, the objection should have been overruled on its merits. You, Gentlemen, will, upon all this, determine for yourselves, how far there was error here at all. If there was any-then how far it was Mr. Thatcher's only, or was shared by any or all of these defendants;-and whether it was honestly com mitted or was wilfully and maliciously perpetrated to the actual oppression and injury of the plaintiff.

It seems

to perceive how a demand for a trial with Burnett for merely making such a declaration, could have furnished the slightest reason for a postponement of the trial before the Committee. No formal accusation appears to have been presented against Burnett, and the complaint alleged, would seem to have involved one of the very questions which were about to be investigated. A decision either that Mr. Burnett had, or that he had not, made such a declaration, would have determined nothing as between Mr. Shermer and Mr. Rusling.

It has been contended that the allegation of Mr. Shermer, even if not correct, did not amount to slander; in other words, that the charge of making a false statement meant nothing more than the charge of making It would seem also, from the whole evidence, that an erroneous or mistaken statement. The Committee Mr. Shermer objected, as soon as the charges were sta-gave a different construction to the words, and as he ted before the Committee, to going on with the trial, did not attempt to substantiate his assertion,they convict

hood.

for three reasons :

1. That one of the Committee, John Gabel, had prejudged his cause.

2. That he was entitled, in the first place, to a trial with Burnett.

3. That two of the Committee had made out or sign. ed the annual report which furnished the ground of the statement alleged to be a false one.

ed him of slander.

I incline to the opinion, that, without consulting lexicographers, ninety-nine men in every hundred would agree with the Committee in their construction of the words "false statement;" would feel that a charge against themselves of making a false statement, was an imputation upon their characters for integrity and honor; would suppose that such an accusation contained an implication that the statement itself, and the thoughts of the party making it were not in harmony. If however a reasonable doubt could be ingeniously raised, courts The objections were overruled, under the circumstan- and juries should require a very strong case indeed beces and in the manner stated by Mr. Thatcher and oth-fore they would undertake to shield an individual from ers; Mr. Shermer withdrew; the committee proceeded the effects of the obvious and usual inferences to be in the case, and gave their decision upon it.

This third objection has been since ascertained to have been made under a mistake in point of fact, and the other two are the only points relied on here.

It is contended on the part of the plaintiff that there was error in overruling these objections, and in the whole proceeding; and that this furnished evidence of combination and malice in the defendants, some of whom were members of the Committee.

drawn from his own language. Even if the phrase had been ambiguous, would it not have furnished probable ground for mistake? and if so, the law would not have awarded damages for any injury that might by possibility have resulted. Every man employing such language, does it at his own risk.

How stands the matter? Mr. Thatcher states that he But further, one of the counsel for the plaintiff has told Mr. Shermer that if he had asked the names of the contended that Mr. Rusling had actually made erroneCommittee at the time of the notification of trial, and ous statements, both on the 14th of April, 1829, as to then objected, he (Mr. T.) would have done any thing certain temporal affairs of the church, and on the 28th in his power to have got those to whom he would not day of December, 1828, relative to the pay of the Rev. have objected, but that the discipline did not admit of Mr. Miller, designated by the witnesses as futher Milobjections at that stage of the business. He adds, ler. The facts do not appear to have been investigated

by the Committee, but they have been thoroughly ex-
amined here.

And here it may be well to notice an argument of the
plaintiff's counsel, charging the committee and presid-
It would seem from Mr. Walton's testimony, confirming elder with having holdly undertaken to denounce
ed on this point by other proof, that the statement in the plaintiff to eternal punishment. It is due to a re-
question on the trial of Mr. Shermer before the Com- spectable religious denomination, to these defendants,
mittee, was that of the 14th of April, giving an outline to the plaintiff himself, and to the cause of candor and
of the annual report.
truth, that we should scrupulously avoid suffering our
Mr. Walton and Mr. Hulzert substantially agree in judgments to be influenced by misconception or error
their accounts of this statement. Among other things, on such a point as this. A fair statement of the matter
Mr. Rusling said, "the gallery built cost $900, and all exhibits it thus: The committee having declared Mr.
"paid; the blinds $100, and paid; the fixtures, bench- Shermer guilty of slander and falsehood, the presiding
"es, lamps, building a front wall cost about $500, and elder gives his opinion that these are crimes express-
"this was all paid but $150, and that was in a note not ly forbidden by the word of God, and sufficient to ex-
yet due and supposed it would be met." These are clude a person from the kingdom of grace and glory."
the very words of Mr. Walton the principal witness for The expulsion by the minister consequent thereon, de-
the plaintiff. He adds, "the Church certainly owed prives Mr. Shermer of "all privileges of society or of
"upwards of $3000 at that time; this was the state-sacraments, in the Church, until after contrition, confes-
"ment as to which the dispute arose ;" and again, sion and proper trial." The legal effect is to deprive
"there was no general balance for and against the him of his rights as a corporator.
"Church stated at that time by Mr. Rusling."

Now it is very clear that when Mr. Rusling said "this was all paid but $150," he expressly referred to the sum of $500 mentioned immediately before, and to nothing else; and it is in evidence by the books of the Church that he was so far right.

Under these circumstances, Mr. Shermer insisted that Mr. Rusling had made a false statement, because there was a much larger sum than $150 due by the Church on a general balance of its accounts. And it struck me as not a little extraordinary that Mr. Walton appeared to labour under the same error, even while giving his evidence here, and furnishing a history of Mr. Rusling's statement, having the effect (though not so designed) of preventing misconception in any impartial mind.

As to the statement about father Miller, I will refer to it presently.

The next step was the decision of the Committee. They unanimously pronounced him guilty of the charges; which were slander and falsehood.

Mr. Thatcher testifies as follows: "Having received their decision, and taking the discipline in my hand, I wrote the language "guilty of crimes expresssly forbidden by the word of God, and sufficient to exclude him from the kingdom of grace and glory;" (Sect. 2. Chap. 2.) Further than this I could not go, these are the terms of the judgment."

There was a suggestion on the part of the plaintiff that the conviction was under a wrong clause of the seventh section of the second chapter of the discipline; that the proceeding, if attempted at all, should have been under the provision relative to "indulging sinful tempers or words." This is denied on the other side. It would seem that a similar expulsion might have resulted to an individual obstinately persisting in offending even under this clause. You will determine here also, whether there was error or not; and if there was, how far it attached to the members of the committee, or any other of the defendants; and whether it was committed in good faith, or was wilfully and maliciously perpetrated to the actual damage of the plaintiff.

Now it is, clear, that if, so far, no cause of action exists, nothing that took place after this stage of the transaction could possibly create one. The subsequent proceedings consisted of an unsuccessful effort to have the decision of the committee, and the expulsion growing out of it, reversed; the very expulsion which forms the basis of the plaintiff's suit. If the conduct of the defendants up to this period was right, then there is an end of the case. If that conduct was wrong, and yet was without the ingredient of malice, still the plaintiff has no legal cause of action. If again that conduct was wrong, and there was malice in it, yet if the parties had probable cause for their proceedings, the plaintiff is not entitled to a verdict. Should you adopt either of these views of the case, you need hardly trou. ble yourselves with a further examination of the facts relative to the appeal to the quarterly conference. Should you however adopt neither of them, and believe that the plaintiff is entitled to your verdict, then the subsequent occurrences become important as furnishing matter either in mitigation or aggravation of the injury done to the plaintiff, and may seriously affect the ques

The presiding elder having given his opinion in writing that slander and falsehood as proved against Mr. Shermer were crimes, "expressly forbidden," &c.pursuing the words above quoted, refers any further action to Mr. Rusling the minister in charge, whose duty, by the same section, is declared to be, in the case of a conviction of any such crime, to expel the party. What does the expulsion amount to? In the same section of damages. tion of the second chapter it is laid down that "After such forms of trial and expulsion, such persons shall have no privileges of society or of sacraments, in our church, without contrition, confession, and proper trial."

Some attention is therefore due from the Court to this part of the case.

The doubt at first expressed as to Mr. Shermer's right of appeal to the conference, was waived on the part of Mr. Thatcher and Mr. Rusling.

As soon as Mr. Thatcher had reduced his opinion to writing, he delivered the document to the minister. This was It is alleged on the part of the defendants that Mr. on the 23d of June, 1829. He adds "I went over imme- Rusling refrained, for several days, from expelling Mr. diately and notified Mr. Shermer, and added that there Shermer, in the hope of an arrangement of the difficulwould be a space allowed him to consider and propose ty; and that it was not until the first of July, after a note terms of peace to the Church, and save his expulsion. had been received from the plaintiff's counsel, proposThere was no imperious necessity to his being expelled ing a full hearing before another tribunal constituted if he had made terms. As he appeared agitated, I ob- according to the laws of the Church, that Mr. Rusling served that he had demanded the trial and must take pronounced the expulsion, which was deemed necessathe consequences. He then said no terms would satis-ry in order to give Mr. Shermer another trial before the fy him but his being restored to his leadership.' After some intermediate proceedings, which will be noticed in a moment, Mr. Rusling, on the 1st of July, 1829, writes a note to Mr. Shermer, in which he says, "I do hereby according to the discipline of the M. E. Church, pronounce you expelled from the aforesaid

Church."

only proper tribunal, namely, the quarterly conference.
Of all this and its effect you will form your own opin-
ion. The expulsion being declared however on the 1st
of July, Mr. Shermer on the 3d of July "enters his ap-
peal to the next quarterly conference."

The conference met. How is it constituted?
In the fifth section of the first chapter of the Disci-