By the Court,
Savage, Ch. J.
The defendant moves for a new trial on the following grounds : 1. That improper persons were admitted to serve as jurors; 2, That there was a variance between the declaration and proof; 3. That proper evidence offered by the defendant was rejected by the judge; and 4. That the verdict is against law and evidence.
The objection to Grisioold and I/ull, as jurors, is the same, and it takes the broad ground that a master mason is incompetent to sit as a juror in a cause wherein one of the parties belongs to Confraternity of freemasons. The authority of Blackstone is quoted to prove that the juror being of the same society or corporation is enough to exclude him. Mr. Justice Blackstone cites no authority for the dictum, but I have elsewhere seen FincKs law cited as authority for the whole paragraph; and the reason assigned for excluding as jurors all persons within the 9th degree, all who have been arbitrators in the same matter, or a juror in the same cause, &c. is because the cause of challenge assigned carries with i\, prima facie evident marks of suspicion, either of malice or- fayor., Is it true that persons belonging to the same society or corporation are ipso facto prejudiced in favor of eveiy person belonging to the same society or corporation, so that they cannot decide a question of fact impartiality between them and other persons ? Whatever may have been the state of society in the days of Finch and' of Blaclcstone, it is not so now. This rule would exclude every stockholder in the same bank, every member of the same church, and every associate of the same benevolent society. We have many societies in which the members are extremely numerous, who have never heard of each other, and can have no inducements to favor persons who may belong to the same [23]*23society, m preference to other individuals. The society of freemasons is supposed to be as numerous as any—the members spreading over Europe and America, embracing many thousands. Are all these persons so biassed in favor of the members of that society, that they cannot find the fact truly from evidence to be produced before them, whether in an action of slander the defendant spoke the words charged in the declaration ? I will not say that there may not be cases where this mle is properly applicable, but there surely is iio reason for its application in this case. Nor do I see any thing in the oath of a master mason, as set forth in the challenge, which should create a disqualification. The defendant’s counsel has referred to those parts of the obligation, in which the master mason swears that he will apprise a brother of all approaching danger, if in his power—and the clause in which he swears that he will be aiding and assisting all poor indigent master masons, their wives and orphans, wheresoever dispersed around the globe, &c. These clauses enjoin the duties of benevolence and charity, but surely contain no evidence of bias or partiality in favor of brethren, or prejudice against others in matters in litigation. These challenges to Griswold and Lull having been demurred to, were decided by the court.
The challenge against Burlingame was submitted to triors and the question of impartiality decided by them as a matter of fact; if they have decided against evidence, a new trial E the only way in which that error can be corrected. The evidence before them consisted of the oath taken by royal arch masons, and the testimony of several witnesses as to the construction given by the fraternity to the questionable clause, which is, “ that he will aid and assist a companion royal arch mason, when engaged in any difficulty, and espouse his cause so far as to extricate him from the same, if in Ms power, wheth-er he be right or wrong.” The juror challenged was examined as a witness, and testified that the oath he took was thus l “I will aid and assist a companion royal arch mason, when engaged in any quarrel, so far as to extricate him from the same, whether right or wrong.” He stated that the oath was explained as follows: If he saw a brother engaged in any difficulty or quarrel with any one else, it was his duty to sepa[24]*24rate *enh if possible, without inquiring whether the quarrel was right or wrong on his part. This witness gave other explanations to other'parts of the obligation set forth in the challeuge; and as to yet other parts, denied that they belonged to it at all; but they are not material here. He said that be never was in any manner prejudiced as a juror by his masonic obligations. Levi Farr gave a similar explanation to the oath: If a royal arch mason saw a brother in a quarrel, it was his duty to take him by the right arm and extricate him, without inquiring the cause. Perez Randall, John F Hubbard, Hezekiah Read, Levi Bigelow, Richard W. Juliand, O. G. Randall and Silas Holmes all concurred in the understanding of masons of the clause in the oath above set forth, and in the declaration, that there is nothing in masonic obligations contrary to moral duties. The bible is presented to them as the rule of their faith and practice, and the lectures point out the moral duties, and are considered binding. Mr. Hubbard stated that the words right or wrong were an interpolation, and did not belong to the obligation as given in the grand chapter. Upon this testimony the triors could not find the juror disqualified.
It is next objected that the plaintiff should have been non-suited for a variance between the declaration and proof: not that some of the actionable words were not proved substantially as laid, but that all the words laid were not proved. The plaintiff Complains, in the same count, that the defendant has charged him with having introduced the smallpox, with a view to his own emolument, and also with destroying the life of his brother Ransom Horton. The plaintiff has proved the first charge, but not the second j and the defendant insists the plaintiff shall be nonsuited. It is a sufficient answer to say that the plaintiff proved enough to sustain his action. It is not necessary to prove all the words laid.
The principal ground for this motióh seems to be, the refusal of the judge to receive the evidence offered in mitigation. The counsel prefaced each of these offers with an entire disavowal of an intended justification, and a full admission of the falsity of the charge, and offered in mitigation facts and cir[25]*25cumstances which induced the defendant to believe the charges true when made.
The charges proved to have been made against the plaintiff by the defendant are, 1. The plaintiff introduced the smallpox into the town of Coventry for his own emolument; 2. That he gave the disease to Johnson’s family and others intentionally, pretending to inoculate them for the kine-pock; and 3. That he gave it to the defendant’s brother, intending to give it to the defendant. On the trial, the defendant admits these charges are entirely false and groundless, and proposes to mitigate damages by showing facts and circumstances which induced him to suppose the charges true at the time they toere made. If these facts and circumstances were sufficient to induce the defendant to suppose the charges true, are they not also sufficient to induce the jury to believe them true 1 That they tend to a justification, the defendant’s counsel does not deny.
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By the Court,
Savage, Ch. J.
The defendant moves for a new trial on the following grounds : 1. That improper persons were admitted to serve as jurors; 2, That there was a variance between the declaration and proof; 3. That proper evidence offered by the defendant was rejected by the judge; and 4. That the verdict is against law and evidence.
The objection to Grisioold and I/ull, as jurors, is the same, and it takes the broad ground that a master mason is incompetent to sit as a juror in a cause wherein one of the parties belongs to Confraternity of freemasons. The authority of Blackstone is quoted to prove that the juror being of the same society or corporation is enough to exclude him. Mr. Justice Blackstone cites no authority for the dictum, but I have elsewhere seen FincKs law cited as authority for the whole paragraph; and the reason assigned for excluding as jurors all persons within the 9th degree, all who have been arbitrators in the same matter, or a juror in the same cause, &c. is because the cause of challenge assigned carries with i\, prima facie evident marks of suspicion, either of malice or- fayor., Is it true that persons belonging to the same society or corporation are ipso facto prejudiced in favor of eveiy person belonging to the same society or corporation, so that they cannot decide a question of fact impartiality between them and other persons ? Whatever may have been the state of society in the days of Finch and' of Blaclcstone, it is not so now. This rule would exclude every stockholder in the same bank, every member of the same church, and every associate of the same benevolent society. We have many societies in which the members are extremely numerous, who have never heard of each other, and can have no inducements to favor persons who may belong to the same [23]*23society, m preference to other individuals. The society of freemasons is supposed to be as numerous as any—the members spreading over Europe and America, embracing many thousands. Are all these persons so biassed in favor of the members of that society, that they cannot find the fact truly from evidence to be produced before them, whether in an action of slander the defendant spoke the words charged in the declaration ? I will not say that there may not be cases where this mle is properly applicable, but there surely is iio reason for its application in this case. Nor do I see any thing in the oath of a master mason, as set forth in the challenge, which should create a disqualification. The defendant’s counsel has referred to those parts of the obligation, in which the master mason swears that he will apprise a brother of all approaching danger, if in his power—and the clause in which he swears that he will be aiding and assisting all poor indigent master masons, their wives and orphans, wheresoever dispersed around the globe, &c. These clauses enjoin the duties of benevolence and charity, but surely contain no evidence of bias or partiality in favor of brethren, or prejudice against others in matters in litigation. These challenges to Griswold and Lull having been demurred to, were decided by the court.
The challenge against Burlingame was submitted to triors and the question of impartiality decided by them as a matter of fact; if they have decided against evidence, a new trial E the only way in which that error can be corrected. The evidence before them consisted of the oath taken by royal arch masons, and the testimony of several witnesses as to the construction given by the fraternity to the questionable clause, which is, “ that he will aid and assist a companion royal arch mason, when engaged in any difficulty, and espouse his cause so far as to extricate him from the same, if in Ms power, wheth-er he be right or wrong.” The juror challenged was examined as a witness, and testified that the oath he took was thus l “I will aid and assist a companion royal arch mason, when engaged in any quarrel, so far as to extricate him from the same, whether right or wrong.” He stated that the oath was explained as follows: If he saw a brother engaged in any difficulty or quarrel with any one else, it was his duty to sepa[24]*24rate *enh if possible, without inquiring whether the quarrel was right or wrong on his part. This witness gave other explanations to other'parts of the obligation set forth in the challeuge; and as to yet other parts, denied that they belonged to it at all; but they are not material here. He said that be never was in any manner prejudiced as a juror by his masonic obligations. Levi Farr gave a similar explanation to the oath: If a royal arch mason saw a brother in a quarrel, it was his duty to take him by the right arm and extricate him, without inquiring the cause. Perez Randall, John F Hubbard, Hezekiah Read, Levi Bigelow, Richard W. Juliand, O. G. Randall and Silas Holmes all concurred in the understanding of masons of the clause in the oath above set forth, and in the declaration, that there is nothing in masonic obligations contrary to moral duties. The bible is presented to them as the rule of their faith and practice, and the lectures point out the moral duties, and are considered binding. Mr. Hubbard stated that the words right or wrong were an interpolation, and did not belong to the obligation as given in the grand chapter. Upon this testimony the triors could not find the juror disqualified.
It is next objected that the plaintiff should have been non-suited for a variance between the declaration and proof: not that some of the actionable words were not proved substantially as laid, but that all the words laid were not proved. The plaintiff Complains, in the same count, that the defendant has charged him with having introduced the smallpox, with a view to his own emolument, and also with destroying the life of his brother Ransom Horton. The plaintiff has proved the first charge, but not the second j and the defendant insists the plaintiff shall be nonsuited. It is a sufficient answer to say that the plaintiff proved enough to sustain his action. It is not necessary to prove all the words laid.
The principal ground for this motióh seems to be, the refusal of the judge to receive the evidence offered in mitigation. The counsel prefaced each of these offers with an entire disavowal of an intended justification, and a full admission of the falsity of the charge, and offered in mitigation facts and cir[25]*25cumstances which induced the defendant to believe the charges true when made.
The charges proved to have been made against the plaintiff by the defendant are, 1. The plaintiff introduced the smallpox into the town of Coventry for his own emolument; 2. That he gave the disease to Johnson’s family and others intentionally, pretending to inoculate them for the kine-pock; and 3. That he gave it to the defendant’s brother, intending to give it to the defendant. On the trial, the defendant admits these charges are entirely false and groundless, and proposes to mitigate damages by showing facts and circumstances which induced him to suppose the charges true at the time they toere made. If these facts and circumstances were sufficient to induce the defendant to suppose the charges true, are they not also sufficient to induce the jury to believe them true 1 That they tend to a justification, the defendant’s counsel does not deny. Neither can it be denied that the defendant seeks to secure himself from damages ; not by showing that he spoke the slanders innocently, but by endeavoring to raise in the minds of the jury suspicions of the plaintiff^ guilt, when he dare not put a justification upon the record, and when, for the purpose of his covert justification, he admits the charges false. His counsel argues the point in his favor as earnestly as if it had not been frequently decided. The doctrine of this court on this subject is familiar to every lawyer. Facts and circumstances may be shewn in mitigation when they disprove malice* and do not tend to prove the charges, or form a link in the chain of evidence to prove a justification. The defendant’s counsel attacks this position, endeavors to show that this court was in entire error when this position was asserted in Root v. King, 7 Cowen’s R. 613, and undertakes to prove it by the English cases which were there overruled. He insists also that this point was overruled by the court of errors in the same cause* though they affirmed the judgment; and finally that this court have themselves abandoned the doctrine, in the case of Gilman v. Lowell, 8 Wendell, 573. In all this, to say the least, the counsel is under a great mistake. Instead of discussing the question [26]*26again, I refer to my opinion in the case last cited. It may not be amiss here to suggest to counsel, that when dissatisfied with the decisions of this court, the proper course is to raise the points at the trial and take exceptions, and then carry the questions to the court of errors, instead of arguing the same points over again in this court upon a case. It is insisted that the course attempted in this case shows the absence of malice. That I deny. It must be admitted that the speaking the words is evidence of malice. A justification does not disprove malice, but confirms it. In such case the plaintiff fails; not because of the absence of malice in the defendant, but because the plaintiff has sustained no damage. Notice of justification put upon the record evidence conclusive of malice. If a notice that a defendant intends to prove the truth is evidence of malice, the offer of evidence tending towards proof cannot show the absence of malice.
The last ground upon which the defendant asks for a new trial is, that the verdict is against law and evidence. From the remarks already made, it is clear that the verdict is according to law as it is understood in this state, and it is well supported by the evidence. A new trial is therefore denied.