Holmes v. Johnson, 33 N.C. 55, 11 Ired. 55 (1850)

June 1850 · Supreme Court of North Carolina

33 N.C. 55, 11 Ired. 55

JAMES C. HOLMES vs. ALFRED JOHNSON.

Where a society exists, which has its written rules and hye-laws, it is not competent to shew hy parol testimony, that there are other rules and usages, independent of those contained in such written rules and byelaws.

Where the general character of a party in an action of slander is attached and several witnesses are introduced for the purpose of sustaining the at-k tank, the Act of Assembly, requiring only two witnesses to a fact to be taxed in the bill of costs, does not apply. It is a case for the exercise of the discretion of the Judge presiding at the trial.-

The case of Hoyle v. Comen, I Hay. 21, cited and approved.

Appeal from the Superior Court of Law of Sampson County, at the Spring Term 1850, his Honor Judge "Settle presiding.

The action is for slanderous words spoken, imputing to the plaintiff the crime of stealing some watch guards and studs from the shop of the defendant in the town of Clinton ; and was tried on the pleas of not guilty and justification. The plaintiff called a witness, who stated that he, the witness, the plaintiff and defendant were members of a society called “A Lodge of Odd Fellows,” which met in Clinton; and that certain charges were preferred in the Lodge against the plaintiff by some member, and the witness and two other members Were appointed a committee to investigate the same and make a report to the Lodge ; that, in the discharge of his duty on the committee, the witness called on the defendant to state what he, the defendant, knew upon the subject of those charges, and the defendant gave him the information, as requested; and that after getting through with that matter, the defendant added, that there were other suspicious matters against the plaintiff, and then went on to accuse him of stealing watch-guards and studs from the defendant’s store. Another witness for the plaintiff deposed, that he also was a member of the same Lodge, and an intimate friend of the defendant, and that on a certain occasion, when the defendant visited the witness, while the latter was very sick, they were engaged in a conversation respecting Odd Fellowship and the said Lodge, and the defendant stated to the witness, that he suspected the plaintiff of taking his studs and watch-guards, and also that the plaintiff] was suspected by others of having stolen other articles at different times ; and that the witness understood the communication to be made in confidence, though the defendant did not express himself to that effect.

The defendant then gave in evidence a printed pamphlet purporting to be the rules and bye-laws of the said Lodge, regulating the duties and conduct of the members of the society; and among them was one requiring any member, who knew any thing against the character or integrity of another to accuse him to the Lodge, and directing that thereupon a committee should be appointed to investigate the matter.

The defendant offered further to prove by a witness, that the Order of Odd Fellows is a society for charitable and benevolent purposes, and that, by the principles and usages of the Order, it was the moral duty of every member to keep the Lodge pure : to admonish any other member of any danger to his morals or his character or estate: and if any member did, or was suspected of having done, an improper act, to give information thereof to the Lodge and also to communicate the same to the members individually ; and that those principles and usages exist, independent of the written and printed rules and bye.Jaws, as a kind of common law of the order, treasured up in the bosoms of its members. But the Court refused to receive the evidence: and the counsel for the defendant excepted thereto, and after a verdict and judgment against him the defendant appealed.

Strange for the plaintiff.

W. Winslow for the defendant.

Ruffin, 0. J.

The execution is restricted to the question of evidence; and that, therefore, is the only point in the case. The Court think his Honor’s decision on it right. The object of the evidence seems to have been to show, that, as a member of the Society mentioned, the defendant was bound to give the information he did to the two witnesses, and thence to insist, that the communications were privileged. But the evidence was either unnecessary or insufficient to establish such a privilege; and in either case it was not erroneous to exclude it. For, if by the general law of the land applicable to the relation existing between those several persons, the defendant was privileged to accuse the plaintiff to his brother members, he could have the full benefit of the defence, independent of the supposed regulations of the society. If however, those regulations were material to the question, it seems plain that they would not have been established by the evidence rejected. The defendant had the full benefit of such as had been adopted by the society. One of them was directly applicable to this subject, and required the members to make known to the society, at its meetings, offences committed by their fellow members, for the legitimate purpose of having them enquired into and punished according to the rules. The defendant, however, insisted further, not that there was any other law of the order on the subject, but that there were certain usages and principles, supposed to be treasured up in the bosoms of its several members, that made it a moral duty of the defendant to make those eharges on the plaintiff. It seems to the Court, that such evidence is altogether too vague and unsatisfactory to authorize the finding from it any regulation of the society. The origin and antiquity of the society are not stated, and we must suppose that it has lately sprung up, and has expressly adopted such bye-laws as were decreed necessary for their government in addition to the duties imposed by the law of the Country. It is idle to talk of a common or traditional law, applicable to a matter like this and peculiar to this Lodge ; and it is obvious that the attempt was to get from, the witness his opinion of the moral duty of the defendant under the circumstances, instead of stating what the law of the society, as adopted and recorded, required of the .defendant as a member of the association. Such evidence could have no legitimate effect on the minds of the jury, but might mislead, and therefore was properly rejected.

Upon the trial the defendant attacked the general character of the plaintiff, and to that point examined nine witnesses. In opposition thereto, and in support of his character, the plaintiff examined about thirty witnesses. After the verdict the defendant moved, that in taxing the costs only two of those witnesses should be allowed to the plaintiff. But the presiding Judge thought they were necessary or proper to the plaintiff’s case under the circumstances, and refused the motion. The Court holds, that the Act of 1783, which provides that the party cast shall be obliged to pay for more than two witnesses to prove'a single fact,'is not to be construed so strictly as not to allow of more than two witnesses in any case, or always to tax the party summoning them with all but two. The general purpose of the statute is to give to the gaining partj- all such costs as are necessarily or reasonably incurred by him, but not to put it in his power to oppress the other party by wantonly accu» initiating costs. Commonly two witnesses to any one fact are sufficient to establish it. But others may become necessary and almost indispensable, in- order to counteract the testimony of witnesses offered on the other side ; and in such a case the losing party is not necessarily exonerated from the payment of such additional witnesses, but may be taxed with them. Hoyle v. Cowan, 3 Hay. 22. That is peculiarly applicable to a case like the present, where the point involved was the general character of the party, (which cannot strictly be called a single fact) and it was necessary to counteract many witnesses, adduced on the opposite side. Upon such a question much must depend upon the number and respectability of the witnesses and their opportunities of knowing the party: and therefore it is a very proper case for the exercise of a discretion of the Judge presiding at the trial. In the present casé this Court must take it for granted, that his Honor deemed the witnesses useful and proper, and that they were truly called for the purposes of justice and not to oppress the defendant; and under those circumstances the Court cannot interfere with his decision.

Per Curiam. . Judgment affirmed-.