Braley, J.[[501]] The evidence would have amply warranted the jury in finding that the defendant Papineau as priest in charge declined to administer to the plaintiff the rite of “Holy Communion” or to permit her to partake thereof, and that by his authority and order she had been refused admission on the Lord’s Day to the building in which religious services were being held. It is contended that for these acts he and the defendant Lawrence, bishop of the diocese, are responsible in damages, and that the verdicts in their favor were ordered wrongly.
The record shows that the Protestant Episcopal Church of America, of which the parties are members, has a body of canons or ecclesiastical law of its own, by which the plaintiff upon baptism and confirmation agreed to be bound, and under which her rights of worship must be determined. Fitzgerald v. Robinson, 112 Mass. 371. Grosvenor v. United Society of Believers, 118 Mass. 78. By the “Rubric in the Order for the Administration of the Lord’s Supper, or Holy Communion” the “minister” is given authority to refuse the rite to any one whom he knows “to be an open and notorious evil liver, or to have done any wrong to his neighbors by word or deed.” By “Canon 40. Of Regulations Respecting the Laity,” Section II, “When a person to whom the Sacraments of the Church have been refused, or who has been repelled from the Holy Communion under the Rubrics, shall lodge a complaint with the Bishop, it shall be the duty of the Bishop, unless he see fit to require the person to be admitted or restored because of the insufficiency of the cause assigned by the Minister, to institute such an inquiry as may be directed by the Canons of the Diocese or Missionary District, and should no such Canon exist, the Bishop shall proceed according to such principles of law and equity as will insure an impartial decision, but no Minister of this Church shall be required to admit to the Sacraments a person so refused or repelled, without the written direction of the Bishop.”
The plaintiff has not availed herself of this right of appeal to the only personage having the requisite ecclesiastical authority to review her standing as a member and communicant or to pass upon her ceremonial rights in accordance with the principles of “law and equity.” Grosvenor v. United Society of Believers, 118 Mass. 78, 91. The letter of her counsel to the bishop, to which no reply appears to have been made, cannot be considered as an appeal which had been denied. It contains only recitals of all her grievances, for the rectification of which his friendly intercession is requested.
But if an appeal had been taken properly and the decision had been adverse, the plaintiff would have been remediless, for in this Commonwealth her religious rights as a communicant are not enforceable in the civil courts. Fitzgerald v. Robinson, 112 Mass. 371, 379. Canadian Religious Association v. Parmenter, 180 Mass. 415, 420, 421. For the same reason it is unnecessary to decide whether at common law, as the plaintiff contends, a member of the Church of England could sue if unjustifiably denied participation in the communion. See Rex v. Dibdin, [1910] P. D. 57; Thompson v. Dibdin, [1912] A. C. 533.
Nor can the action be maintained for defamation. Undoubtedly she suffered mental distress, and the omission was in the presence of the other communicants. The plaintiff, however, was not publicly declared to be “an open and notorious evil liver,” or to be a person who had done wrong to her neighbors by word or deed. The act of “passing her by” without comment was within the discipline or ecclesiastical polity of the church and does not constitute actionable defamation of character. Farnsworth v. Storrs, 5 Cush. 412, 415. Fitzgerald v. Robinson, 112 Mass. 371. Morasse v. Brochu, 151 Mass. 567. See R. L. c. 36, §§ 2, 3.
The action for exclusion from the church building also must fail. It appears that upon being informed by the constable employed for the purpose that she could not enter the plaintiff made no attempt to pass, but acquiesced and obeyed the order. The elements of an assault are absent. No intimidation was used, or unjustifiable coercion exercised. By Canon 16, to which the plaintiff subjected herself, control of the worship and spiritual jurisdiction of the mission, including the use of the building for religious services, was in Papineau as the minister in charge, “subject to the authority of the Bishop.”[[502]]
PULLMAN v. WALTER HILL & COMPANY
In the Court of Appeal, December 19, 1890.
Reported in [1891] 1 Queen’s Bench, 524.
Motion by the plaintiffs for a new trial.
At the trial before Day, J., with a jury, it appeared that the plaintiffs were members of a partnership firm of R. & J. Pullman, in which there were three other partners. The place of business of the firm was No. 17, Greek Street, Soho. The plaintiffs were the owners of some property in the Borough Road, which they had contracted in 1887 to sell to Messrs. Day & Martin. The plaintiffs remained in possession of the property for some time, and agreed to let a hoarding, which was erected upon the property, at a rent to the defendants, who were advertising agents, for the display of advertisements. In 1889 a dispute arose between the plaintiffs and Day & Martin, who were building upon the land, as to which of the two were entitled to the rent of the hoarding; and on September 14, 1889, the defendants, after some prior correspondence, wrote the following letter:—
“Messrs. Pullman & Co., 17, Greek Street, Soho.