
    
      John Marshall vs. Dr. Brian Gunter.
    
    Action of slander: the words laid did not in express terms charge the crime, which, by innuendo, it was stated the defendant meant to impute to the plaintiff, and there was no prefatory inducement showing of what the words were spoken: the Circuit Judge charged, that the declaration would suffice if the jury believed that the words would well carry the moaning that had been ascribed to them, and were understood and should have been understood by the wifcnossos according to that meaning: — Held, that such charge was proper, and a verdict for plaintiff was sustained.
    It is not essential that words, to be actionable, per se} without prefatory averment, should charge a crime in express terms.
    Whore a prefatory averment is necessary, the omission of it should be pointed out by special demurrer: semble.
    
    A verdict supported by any one of the counts is good, although all the others be bad. Slanderous words spoken to a magistrate are actionable, if spoken maliciously and with no bonajide intention of prosecuting.
    Case lies for maliciously and without probablo causo applying to a magistrate for a warrant for hog-stealing; and malice will be, prima fad.ei implied, if want of probablo cause be shown.
    New trial in an action of slander, on tho ground of excessive damages, refused, it not appearing that the jury were not “ indifferent between the parties,” or that the damages wore “flagrantly extravagant.”
    
      Before Wardi, aw, J., at Richland, Bpring Term, 1853.
    In this action of slander — plea, the general issue, — the report of his Honor, the presiding Judge, is as-follows:
    “ The defendant is 78 years old; had an attack of paralysis three years ago; has a large fortune, perhaps $40,000, at interest, besides lands and negroes; attends but little to his affairs himself, and lives upon a small farm cultivated by three or four hands, at a considerable distance from his river plantation. The plaintiff is not much younger; has lost all his family, and been reduced from a comfortable condition to scanty means; lives three-quarters of a mile from defendant, on adjoining land, and is intemperate in drinking, but (as admitted) of unexceptionable character for honesty and fair dealing. .
    “ The substances of the testimony adduced by the plaintiff is as follows, viz:
    
      “E. B. J. Hayes. — In January, 1852, A. P. Vinson and Hayes, together with Ruffin Jones and Edward Gunter, son of the defendant, dined with the defendant by invitation. Before Squire Vinson came in, the defendant was talking to Hayes and his son about a black sow which the plaintiff had killed. When Vinson came in he repeated what he had said, and said more, talking on this subject mainly during dinner and afterwards whilst the witnesses stayed. [Ruffin Jones, who was manager of defendant’s business about his home, seems to have come in last, and to have departed first: Vinson left the others when he went.] The words spoken were these : ‘I dined at General Hopkins’s last Sunday, and on my return home late in the evening I was informed by two of my black girls that ,one of my sows was shut up in Marshall’s pen. I sent for my overseer, Ruffin Jones, early next morning, and directed him to go to Marshall’s and see about it; he hesitated at first to go, saying that as Marshall was generally drunk early in the morning, he preferred going in the afternoon, when he would be more likely to find him sober. I directed him to go to the pen and see the sow; he did so, and on his retail told me that the sow was mine, and that he would swear to it. He further stated that several of my shoats, pigs of this sow, were lyring round the pen, and that the mark of the sow had been altered, the ears having been fresh cut. In the evening I sent Jones to see Marshall; he told me on his return that he had met Marshall returning from one of his fields, and in conversation between them, Marshall said, ‘ I understand old Dr. Gunter says I have one of his sows shut up in my pen; you may tell him that the sow is not his, but my own ; that he will never see her again, and that he may go to hell.’ Jones stated further, that on his return by the pen he saw Marshall’s negroes cleaning the sow which had been killed. I knew this sow as well as I did one of my yard dogs. What am I to do V To Vinson, when he came in, ‘ I have just been telling Mr. Hayes and Ned about a sow of mine that has been killed by John Marshall.’ Words then repeated as above, and at the conclusion, ‘ I reckon I will have to apply to you for a warrant.’ Vinson expressed unwillingness to act, and requested Dr. G. to go to Columbia, where he could see a lawyer. Dr. G. persisted in his application, and in the course of his remarks said : 4 By-God, I don’t see the necessity of my going to Columbia for a magistrate, when I have one at my own door.’ Yinson replied, 4 I am not sure that I am a magistrate, as I have not qualified since my last appointment; and as I am a neighbor to both of you, I dislike to have anything to do in the matter.’ Dr. Gunter said to him, 4 I reckon, by God, I can compel you to do your duty.’ Yinson replied, 4 certainly, doctor, if you come to me and insist on it, I will have to issue a warrant.’ By the language, Hayes was led to believe that plaintiff had been guilty of hog stealing, but not that defendant seriously intended to press the matter to a prosecution.
    44 In a conversation introduced by Hayes some weeks after-wards, at defendant’s own house, defendant having been told that Yinson understood him as having applied for a warrant, said to Hayes : 4 Yes, you recollect, I did it in your presence.’
    44 A. P. Vinson, Esq. — On the occasion of the dinner party, the defendant said, 4 John Marshall has stolen a sow of mine; I can prove the sow to be mine by Ruffin Jones.’ He accused the plaintiff of hog stealing, and applied to Yinson, then a magistrate, for a warrant against plaintiff for hog stealing, using the words warrant and hog stealing. Yinson answered, that it was unpleasant to issue a warrant against a neighbor for hog stealing, and defendant replied: 41 require you to do your duty as a magistrate.’ In answer to cross-interrogatories, Yinson detailed the statements made by defendant, of what Jones had told him, nearly in the same way Hayes had done, and answered : 41 am certain that defendant was serious in his application for me to take legal proceedings against the plaintiff for killing his hog, but I do not know whether other persons thought he was serious.’ I said that 4 my term of office was out or nearly so, and I would rather he would go to some magistrate in Columbia;’ and afterwards I said that 4 when I ascertained that I was still a magistrate, if he still insisted, I would grant him a warrant.’ He spoke favorably of plaintiff’s previous good character.
    44 In a subsequent interview between the parties, had at Squire Yinson’s, in the presence of Ruffin Jones and Edward Gunter, (probably early in February,) the defendant civilly requested the plaintiff to pay him for the hog, and endeavored to show him that he ought to do so ; plaintiff answered, that he was not in the habit of paying for his own property. The defendant repeated, as before, what Jones had told him, and further said, that he had sent Jones to request the plaintiff not to kill the sow until they could see whose she was, and that Jones, not seeing plaintiff, had made the request of Bob, his driver. The defendant said that plaintiff ought not to have killed the sow and put her out of the way, knowing that she was claimed by the defendant ; and the plaintiff admitted that in that he had done wrong.
    “ For the defendant, Ruffin Jones and Edward Gunter were examined. The substance of their testimony, not included in the preliminary statement, is given below :
    “ Ruffin Jones. — On a Monday morning, in January, by defendant’s directions, I went to the plaintiff’s hog-pen, and there saw a black sow; one of her ears was cut or torn down to a stump, one-half of the upper edge being fresh cut, the other half old and healed over; near the pen were three shoats, two of them unmarked, and the third in defendant’s mark. The marks of plaintiff and defendant are identical in one ear; in the other ear plaintiff’s mark is a crop and underbit; the defendant’s, a figure 7. [By consent, a year before, the plaintiff had spoken to me about hogs he had bought, - which had Col. Myers’s old mark — the same as defendant’s.] I did not know the sow. I returned and told the defendant of what I had seen, and told him that the sow answered the description which he had given me of his. From the beginning I was cautious; told defendant that his negroes said it was his hog, but did not give him my opinion.
    “ I went again ; met plaintiff) who was walking to a field a mile off, but was not sober. He said, ‘ I’ve been told you have been at my pen to claim a hog for Dr. Gunter.’ I answered, 1 No, I went to look at it.’ He replied, ‘ Tell Dr. G. that it is my hog — he’ll not get it — he may go to hell.’ On my way back I passed near the pen, and saw plaintiff's negroes cleaning a hog there. I delivered no message from defendant to plaintiff, but on my return told defendant what the plaintiff had said, and of my having seen the hog killed.
    “ Next day the defendant talked to me of the matter — said he could not lose his hog in that way; he must look into it; would mdict Marshall for it.
    “ That night (Tuesday) some negroes of plaintiff’s were burnt; next day defendant said, ‘ I believe I will drop the idea of troubling Marshall about the hog; he has lost much more than I have.’
    
      “ Afterwards, during several weeks before the commencement of the suit, defendant would talk to me of the matter, whilst I was engaged about the plantation; he still seemed inclined to see into it, and wanted pay for his hog.
    ’ “ Once he said, Marshall has got the sow, but I’ve got the pigs in .the pen, and he will not get them. Again, about two weeks after my visit to the pen, he said, ‘ I’ve applied to Squire Yinson for a warrant; he says it is unpleasant, and advises me to go to Columbia, but I told him that was inconvenient, and asked if he would not act if I insisted, and he said yes.’
    “ He never used the word steal, but used words which I considered of like import: for instance, when the parties met at Squire Vinson’s, defendant said to plaintiff, c It was my hog; .pay me for it,-, and I’ll say no more about it.’ Plaintiff refused, and defendant said, ‘ I’ve known you long, dealt with you much, and found no dishonesty. I would hate now to stain your character, and thought the easiest way was for you to pay for the hog.’ Plaintiff answered, ‘ I don’t pay -for my own property.’ My inference was, that the defendant meant stealing. If one should say that I had .killed his hog, I would understand that he meant I had stolen it. In the conversation at Vinson’s, plaintiff acknowledged that he had been wrong in putting the hog out of the way, but said, ‘ I killed it to save it, for I allowed Gunter’s negroes would take it out of my pen that night.’,
    
      “ One side of swallow fork cut oif, makes figure 7 ; the sow’s ear looked as if figure 7 had been turned into a stump; but neither swallow fork nor figure 7 properly made, comes down into the ear so low as that stump was.
    “ Edward Gunter. — At the dinner, my father did not use the word hog-stealing. He asked Yinson for an indictment against Marshall, but did not say for what, whether for stealing, or to get the worth of the hog. I afterwards spoke to Hayes about it, and think I am exact as to the language. Vinson said, ‘Doctor, you had better do as I did.’ Father asked, 1 What’s that V and Yinson said, ‘ I sent to my neighbor word to turn my pigs out of his pen.’ I answered, ‘It is too late for that — the hog is killed;’ and Yinson said to me, ‘ Don’t let the old man indict Marshall.’ I promised that I would put a stop to it.
    “At Vinson’s, father said to plaintiff, ‘You pay me for the hog.’ Plaintiff said, ‘ It was mine.’ Father said, ‘Well, let us put up Jones to swear whose it was, and stand to that.’ Some of the company answered that that would not do, as Jones would only say to the best of his belief. I said I thought they were mistaken, and Yinson reminding me of my promise, told me to put a stop to it, whereupon I said, ‘ Jones cannot tell whose hog it was.’ Jones was there. I said, ‘ Marshall, you got the message, and still killed the sow.’ He said ‘Yes.’ Yinson told him, ‘There you were wrong,’ and father said, ‘You would not have done it if you had been sober, for I’ve known you long.’ Marshall said, ‘He would drink no more,’ and I thought the whole affair was dropped until the writ came.
    “ In his address to the jury, one of the defendant’s counsel insisted, that the evidence was inapplicable to the 9th and 11th counts ; that under the 8th count the imputation of malice had been rebutted, and that all the other counts were insufficient, because they either alleged words that were plainly not actionable per se, and contradicted the inuendoes that ascribed to them an actionable signification, or were at most equivocal, and could be aided only by a prefatory averment, of which there was none.
    “ I left it to the jury to judge whether the 9th and 11th counts bad been proved. I thought the 1st, 3d and 5th insufficient. I held that the 7th would suffice if the jury believed that the words would well carry the meaning that had been ascribed to them, and were understood and should have been understood by the witnesses according to that meaning. Where no extrinsic circumstance gave to words a meaning different from their ordinary import, but an actionable signification was to be collected from ambiguous words themselves, and other words accompanying them, I considered that no prefatory averment was necessary, but that from all the words spoken and laid, and the manner of the speaking, the jury should judge of the propriety of the inuendoes.
    
      “ I instructed the jury that an action would not lie for words spoken to a magistrate in a bona fide effort to institute a prosecution for the crime imputed by the words; but that such action would lie for words maliciously spoken to a magistrate, as to any other person, where there was no real application for criminal proceedings. I left it to the jury to judge, whether the defendant, when he rehearsed to Yinson the narration he had given to Hayes and Edward Gunter, was really applying to a magistrate for a warrant; if he was not, I supposed the 2d, 4th and 6th counts might be sustained by the evidence. I had then only heard one of those counts, hastily read, and. been told that the others were in general similar. Upon looking at a copy of the second, I find the allegation that defendant was applying for a warrant more distinctly made than I had supposed ; but I yet think that proof, showing the application not to have been bona fide, would authorize a recovery under that count. The official character of the witness may be mere, descriptio persones, and the words which seem to indicate the purpose of applying for a warrant, only show the malice more plainly, when it is found that that purpose did not exist. It is at last a question of malice, and that the jury has found, notwithstanding circumstances that ordinarily rebut its existence.
    “ Under the 8th count, I held that if want of probable cause existed, malice would be, prima facie, implied, but might be rebutted. I instructed the jury upon the law concerning probable cause, and submitted the facts involved in that, and in the rebuttal of malice which had been argued to have been made, to the decision of the jury. If any sufficient count was found to have been proved, I thought it unimportant whether other counts charging the same words were or were not sufficient, 
       
      jury, that they might find a verdict for the plaintiff on the 7th count of the declaration, if the proof were sufficient; whereas, in fact, the words laid in the said count are not actionable in themselves, and are not so explained by the colloquium and averments as to be made actionable.
    
      “ The jury found for the plaintiff $3,000, which was an amount higher than I would have found; but it was for them, and not for me, to fix the amount of damages, and probably the result they attained is wise and just.”
    The defendant appealed, and now moved this Court for a new trial upon the grounds
    1. Because his Honor, the presiding Judge, instructed the
    
      2. Because, under the 2d, 4th and 6th counts of the declaration, his Honor left it to the jury as a question of fact, to find whether the defendant spoke the words therein laid in a bona fide application to a magistrate for a warrant, or not; in which latter alternative they were instructed that they were at liberty to find for the plaintiff on those counts ; whereas, it is respectfully submitted, that no evidence would have authorized the jury to find a verdict for the plain tiff on those counts, of which an essential part was the averment, that the defendant spoke the words charged in an application to a magistrate for a warrant.
    3. Because his Honor instructed the jury, that they might find a verdict for the plaintiif on the 11th count of the declaration, when it is respectfully submitted that there was no testimony whatever to prove the utterance of the actionable words laid in that count.
    4. Because, if the jury found their verdict on the 8th count of the declaration, it was contrary to the decided weight of the testimony, which negatived all presumption of malice on the part of the defendant.
    5. Because the damages assessed by the jury are excessive and unreasonable.
    Gregg, Garlington, for the motion,
    cited, on the first ground, Sturgeneger vs. Taylor, 2 Brev. 480; 6 T. R. 691; Asbell vs. Witt, 2 N. & McC. 364; Power vs. Miller, 2 McC. 220; 2 Rice Dig. 294, § 20 ; Davis vs. Johnson, 2 Bail. 579; Morgan vs. Livinginston, 2 Rich. 572; 1 Stark, on Slander, 372, 383, 391, 416, 418, 421 ; 15 Wend. 232; 4 M. & S. 164; 2 Stra. 934; 1 Chit. PL 306, 400, 404; 5 Ad. & El. 554; Rex vs. Horne, 2 Cowp. 683; 4 Blackf. 470; 4 Shepl. 317: on the second ground, 1 Stark, on Sland. 246-7 ; Hodgson vs. Scarlelt, ,1 B. & Al. 244 ; Yatise vs. Lee, 1 Hill, 197; Milom vs. Burn-sides, 1 N. & McC. 426 ; Sanders vs. Rollinson, 2 Strob. 447 ; Thorne vs. Blanchard, 5 Johns. R. 608: on fourth ground, 1 Stark, on Slander, 226; 4 Co. 290 ; Cro. Jac. 432 ; 4 Co. 292; 1 Hill, 197 : and on fifth ground, Sims vs. McLendon, 3 Strob. 557 ; Poppenheim vs. Wilkes, 2 Rich. 354.
    
      Arthur, S. O. Talley, contra,
    cited, on first ground, Hogg ads. Wilson, 1 N. & McC. 216; Davis vs. Davis, 2 N. & McC. 81; Sawyer ads. Eifert, 2 N. & McC. 511; Hugley vs. Hugley, 2 Bail. 592; 3 Lev. 68 ; 1 Stark, on Slander, 44, 46, 62, 108, 390, 393 ¡6C.&P. 245 -t 8 Mod. 240 ; 9 East, 56 ; Miller vs. Ker, 2 McC. 285; Randall vs. Holsenbake, 3 Hill, 175 ; Peake N. P. 25 ; 2 Camp. 72; Holt, R., 425; 5 East, 463; 3 Brev. 95; 2 Sp. 592; Davis vs. Ruff, Cheves, 17: on the second ground, 1 Chit. PI. 351; 1 Saund. R. 117, note 4, 132; Gale vs. Hays, 3 Strob. 455 ; 1 Stark, on Slander, 254, 426 ; 1 B. & C. 24; Smith vs. Youmans, 3 Hill, 85; Heyward vs. Cuthbert, 4 McC. 354; 3 Johns. R. 178 ; 3 Stark. Ev. 896 ; 4 Serg. <fc R. 420; Leigh N. P. 1368-9, 1374: on third ground, Grubbs ads. Kyzer, 3 McC. 305; 1 Stark, on Slander, 323, 374: on fourth ground, 1 Mill, 162; 2 Mill, 452; 1 Bail. 113, 421: on fifth ground, Davis vs. Ruff, Chev. 17; Davis vs. Whitridge, 2 Strob. 232; 2 N. <fc McC. 217. They also cited 2 Selw. N. P. 430, 436 ; 5 Esp. R. 110, note; 44 Eng. C. L. R. 225.
    
      
      
         The 1st, 3cl and 5th counts of the declaration were ruled insufficient by the Circuit Judge. Of the 10th no notice at all was taken. The other counts are as follows:
      
        Second Count —And afterwards, to wit, on the day of in the year one thousand eight hundred and fifty-two aforesaid, at Columbia aforesaid, in a certain other discourse which the said Brian Gunter then and there had with the said Andrew P. Vinson, then and there being one of the magistrates in and for- the District of Richland in the State aforesaid, in the presence and hearing of divers other good and worthy citizens of this State, he, the said Brian Gunter, further contriving and intending as aforesaid, then and there in the presence and hearing of the said last mentioned citizens, then and there falsely and maliciously spoke and published of and concerning the said John Marshall, these other false, scandalous, malicious and defamatory words following, that is to say : I (meaning the said Brian Gunter) have just been telling Mr. Hays (meaning thereby one E. S. J. Hayes) and Ned, (meaning thereby one Edward Gunter,) of a sow of mine (meaning thereby a sow of said Brian Gunter) that was killed by John Marshall, (moaning the plaintiff,) (meaning thereby that he, the said Brian Gunter, had just been telling the said E. S. J. Hayes and Edward Gunter that the said John Marshall had stolen a sow belonging to the said Brian Gunter,) which (meaning the said sow) I (meaning the said Brian Gunter) can prove to be my (meaning the said Brian Gunter’s) property by Ruffin Jones — (moaning thereby that the said John Marshall had been guilty of hog stealing)— I (meaning the said Brian Gunter) want you (meaning the said Andrew P. Vinson) to give me .(meaning the said Brian Gunter) a warrant against Marshall, (meaning John Marshall, the plaintiff,) for hog stealing, (moaning thereby that the said Brian Gunter wished the 'said Androw P. Vinson, as a magistrate of said District of Richland, to issue a warrant for hog stealing against the said John Marshall,) (meaning thereby to charge the said John Marshall with the crime of hog stealing,) I (meaning the said Brian Gunter) require you (meaning'the said A. P. Vinson) todo your (meaning the said Vinson’s) duty as a magistrate, (moaning thereby that the said Brian Gunter required the said A. P. Vinson, as one of the magistrates of the District of Richland as aforesaid, to issue a warrant against the said John Marshall for hog stealing,) (meaning thereby that the said 'John Marshall was guilty of the crime of hog stealing.)
      
        Fourth Count. — And afterwaids, to wit, on the day of in the year of our Lord one thousand eight hundred and fifty-two aforesaid,* in a certain other discourse which the said Brian Gunter then and there had with the said Andrew P. Vinson, ho, the said Andrew. P. Vinson then and'there, being one of the magistrates in and for the District of Richland, in the State 'aforesaid, and 'within' the jurisdiction of this Court, in the presence of divers other good and worthy’citizens of this State, he, the said Brian Gunter, further contriving and intending, as aforesaid, then and there in the* presence and hearing of the said last mentioned citizens, then and there falsely and maliciously spoke and published of 'and concerning tho said - John Marshall, these other false, scandalous, malicious and defamatory words, tliat ’is to say: I (meaning the said Brian Gunter) want you (meaning the said Andrew P. Vinson) to give me (meaning the said Brian Gunter) a warrant against John Marshall, (meaning John Marshall, the plaintiff,) for hog stealingh (meaning thereby that the said Brian Gimter wished the said Andrew P. Vinson, as a magistrate of said District of Bichland, to issue a warrant for hog stealing against the said John Marshall,) (meaning thereby to charge the said John Marshall, the plaintiff, with the crime of hog stealing,) X (meaning the said Brian Gunter,) require you (meaning the said Andrew P. Vinson) to do your (meaning the said Andrew P. Vinson’s) duty as a magistrate — (meaning that the said Brian Gunter required the said Andrew P. Vinson, as one of the magistrates of the District of Bichland as aforesaid, to issue a warrant against the said John Marshall for hog stealing,) (meaning thereby that the said John Marshall was guilty of the crime of hog stealing.)
      
        Sixth Count.' — And afterwards, to wit’, on the day of in the year of our Lord one thousand eight hundred and fifty-two aforesaid, at Columbia aforesaid, and within tho jurisdiction of this Court, in a certain other discourse which the said Brian Gunter then and there had with the said Andrew P; Vinson, then and there being one of the magistrates in and for the District of Bichland, in the State aforesaid, in tho presence and hearing of divers other good and worthy citizens of this State, the said Brian Gunter, further contriving and intending, as aforesaid, then and there in the presence and hearing of the said last mentioned citizens, then and there falsely and maliciously spoke and published of and concerning tho said John Marshall, these and other false, scandalous, malicious and defamatory words following, that is to say: I (meaning the said Brian Gunter) want you (meaning tho said Andrew P. Vinson) to give me (meaning the said Brian Gunter) a warrant against John Marshall, (moaning the said John Marshall, tho plaintiff,) for hog stealing, (meaning thoroby that the said Brian Gunter wished the said Andrew P. Vinson, as a magistrate of the District of Bichland aforesaid, to issue a warrant against said John Marshall for hog stealing,) — (meaning thereby to charge the said John Marshall with tho crime of hog stealing.) ,
      
        Seventh Count — And afterwards, to wit, on the day of in the year one thousand eight.hundred and fifty-two aforesaid, at Columbia aforesaid, in a certain other discourse which the said Brian Gimter then and there had with ono E. S. J. Hays, otherwise known as Elliott S. J. Hays, in the presence and hearing of divers other good and worthy citizens of the State, he, the said Brian Gunter, further contriving and intending, as aforesaid, then and there, in the prosence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said John Marshall, those other false, scandalous, malicious and defamatory words, that is to say i I (meaning the said Brian Gimter) had been to dine at General Hopkins’s, (meaning thereby one General William Hopkins,) (meaning thereby that the said Brian Gdnterhad been dining at the residence of the said General William Hopkins,) and got home late in the evening, (meaning thereby that the said Brian Gunter had returned home late in the evening,) and when I (meaning the said Brian Gunter) got home, X (meaning the said Brian Gunter) was told by two of my (meaning the said Brian Gunter’s) girls, (meaning thereby servants of the said Brian Gunter,) that they (meaning the said girls) had seen a black sow of mine (meaning of the said Brian Gunter’s) shut up in Marshall’s (meaning the said plaintiff’s) pen, and I (meaning the said Brian Gunter) sent for Ruffin Jones, (meaning one Ruffin Jones,) and directed him (meaning the said Ruffin Jones) to goto Marshall’s (meaning the said plaintiff) and see about it, (meaning, to see about the sow in the plaintiff’s pen.) Jones (meaning the said Ruffin Jones) went down (meaning down to the plaintiff’s) in the evening, passed by the pen, (meaning the pen of the plaintiff,) and saw the sow, (meaning the sow above mentioned, as claimed by the said Brian Gunter,) and Jones (meaning the said Ruffin Jones) said that the mark (meaning the mark of the said sow) had boon recently altered, (the said defendant thereby intending to charge the said plaintiff with wrongfully and illegally altering the mark on his, the said defendant’s, sow.) Jones (meaning the said Ruffin Jones) met Marshall, (meaning the said plaintiff,) and Marshall (meaning the said plaintiff) said to him, (meaning the said Ruffin Jones,) u I (meaning the said plaintiff) understand that old Doctor Gunter (meaning the said Brian Gunter) says that I (meaning the said plaintiff) have one of his (meaning tho .said Brian Gunter’s) sows shut up in my (meaning the said plaintiff’s) pen. Tell Gunter (meaning the said Brian Gunter) the sow (meaning the sow aforesaid) is mine, (meaning the said plaintiff’s,) that I (meaning the said plaintiff) can prove it, and that he (meaning the said Brian Gunter) will never see her (meaning the said sow) again; and that ho (meaning the said Brian Gunter) may go to hell.” Jones (meaning the said Ruffin Jones) passed the pen (meaning the pen of the said plaintiff) shortly after, and saw Marshall’s (meaning the plaintiff’s) negroes cleaning the hog, (meaning the aforesaid sow.) Now, what do you (meaning the aforesaid Elliott S. J-Hays) think of that 7 — a sow [meaning the sow aforesaid] I [meaning the said Brian Gunter] know as well as one of my [meaning the said Brian Gunter’s] yard dogs, — [meaning thereby that the said John Marshall had unlawfully and feloniously stolen ahogbelonging to the said Brian Gunter.]
      
        Eighth Count. — And whereas, also, the said plaintiff now is a good, true, honest, just and faithful citizen of this State, and as such hath always behaved and conducted himself, and hath not ever been guilty, or, until the time of the committing of the several grievances by the said defendant, as hereinafter mentioned, been suspected to have been guilty, of felony or any other such crime; by means whereof he, the said plaintiff, before the committing of the said several grievances, by the said defendant, as hereinafter mentioned, had deservedly obtained and acquired the good opinion and credit of all his neighbors, and other good and worthy citizens of this State, to wit at Columbia aforesaid — yet the said defendant, well knowing the premises, but contriving and maliciously intending' to injure the said plaintiff in his aforesaid good name, fame and credit, and to bring Mm into public scandal, infamy and disgrace, and to cause him, the said plaintiff, to be imprisoned, and thereby impoverish, oppress and wholly ruin him, heretofore to wit on the day of in the year 1852 aforesaid, at Columbia aforesaid, went and appeared before one A. P. Vinson, esq., then and there being one of the magistrates assigned to keep the peace in and for the said District of Richland, in the State aforesaid, and then and there, before the said A. P. Vinson, so being such magistrate as aforesaid, to wit at Columbia aforesaid, falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the said plaintiff with having feloniously stolen a certain hog of him, the said defendant; and upon such charge, he, the said defendant, then and there falsely and maliciously, and without any probable cause whatsoever, demanded of and from the said A. P. Vinson, esq., so being such magistrate as aforesaid, his, the said A. P. Vinson’s, certain warrant, under his hand and seal, for the apprehending and taking of the said plaintiff, and for bringing him, the said plaintiff, before him, the said A. P. Vinson, esq., or some other magistrate of the said State, to be dealt with according to law, for the said supposed offence.
      
        Ninth Count. — And afterwards, to wit on the day of in the year one thousand eight hundred and fifty-two aforesaid, at Columbia aforesaid, in a certain other discourse which the said Brian G-unter then and there had with one and other persons, in the presence and hearing of divers other good and worthy citizens of this State, he, the said Brian Gunter, further contriving and intending, as aforesaid, then and there, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said plaintiff, these other false, scandalous, malicious, and defamatory words following, that is to say: Marshall (meaning the plaintiff,) has stolen my (meaning the said defendant’s) sow, (meaning thereby to charge the said plaintiff with the crime of hog stealing.)
      
        Eleventh Count. — And afterwards, to wit on the day of in the year one thousand eight hundred and fifty-two aforesaid, at Columbia aforesaid, in a certain other discourse which the said Brian Gunter then and there had, with one Ruffin Jones, and other persons, in the presence and hearing of divers other good and worthy citizens of this State, he, the said Brian Gunter, further contriving and intending, as aforesaid, then and there, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said plaintiff, these other false, scandalous, malicious and defamatory words following, that is to say: Marshall [meaning the plaintiff,] has stolen my [meaning the said Brian Gunter’s] sow, and X [meaning the said Brian Gunter,] want you [meaning the said Ruffin Jones,] to go to his [meaning the plaintiff’s] house and see about it, [meaning thereby that the said plaintiff had feloniously stolen a hog belonging to the said Brian Gunter.] He [meaning the said plaintiff,] has got her [meaning the said sow,] in his [meaning said plaintiff’s] pen, now. and I [meaning said Brian Gunter,] want you [meaning said Ruffin Jones,] to go and see about it, [meaning thereby to charge the said plaintiff with the crime of hog stealing.] By means of the committing of which said several grievances, by the said Brian Gunter, as aforesaid, he, the said John Marshall, hath been, and is, greatly injured in his said good name, fame and credit, and brought into public scandal, infamy and disgrace, with and amongst all his neighbors, and other good and worthy citizens of this State, insomuch that divers of those neighbors and citizens, to whom the innocence and integrity of the said John Marshall, in the premises, were unknown, have, on occasion of the committing of the said grievances, by the said Brian Gunter, as aforesaid, from thence, hitherto, suspected and believed, and still do suspect and believe, the said John Marshall to have been, and to be, a person guilty of hog stealing, and have, by reason of the committing of the said grievances, by the said Brian Gunter, as aforesaid, from thence, hitherto, wholly refused, and still do refuse, to have any transaction, acquaintance or discourse with him, the said John Marshall, as they were before used and accustomed to have, and otherwise would have had; and the said John Marshall hath been, and is, by means of the premises, otherwise greatly injured, to wit at Columbia aforesaid, to the damage, &c.
    
   The opinion of the Court was delivered by

Glover, J.

The first ground of appeal submits, “ that the words laid in the 7th count are not actionable in themselves and are not so explained by the colloquium and averments as to be made actionable.” Words which do not in express terms charge a crime may be actionable if used in such manner as to convey the imputation of crime. The construction of slanderous words depends upon the understanding of those who heard them. It is their popular, and not their legal, technical import which furnishes a rule for ascertaining their meaning: otherwise the most licentious indulgence would be extended to a slanderer who should clothe his defamation in studied phrases and equivocal, language. (Sawyer ads. Eifert, 2 N. & McC. 511; Davis vs. Johnson, 2 Bail. 579.) In a late case, Lord Denman has very clearly expressed the true rule which should govern the construction of words used in a double sense : — “ The question in an action for words is, not what the party using them considered their meaning by any secret reservation in his own mind, but what he meant to have understood as their meaning by the party to whom he uttered them.” (Read vs. Ambridge, 6 C. & P. 308.) Nor should he be protected by a construction which would give him the benefit of the mildest sense in which the words might be understood, but their reasonable import as understood by those to whom they are addressed will govern the Court and jury in their interpretation. (Davis vs. Davis, 2 N. & McC. 81; Burges vs. Boucher, 8 Mod. 240.)

It is not always, therefore, the mode of expression which may be ádopted that renders words actionable per se, but the reasonable construction which hearers put upon their usual and popular import. Protection should not be extended to him who imputes crime under a vague expression used to injure another, whilst he is shielded from punishment by his own artifice. (Hunt vs. Algor, 6 C. & P. 245.)

Whether the words alleged in the 7th count were actionable by themselves was properly submitted to the jury, and after they have passed upon them, the Court will construe them in that sense which will support the verdict. The whole conversation with Hays is detailed with proper inuendoes, and the language is not so vague as to convey the double meaning of felony or trespass, nor was it so understood by those to whom Gunter spoke: — That Marshall had his hog shut up in a pen — had altered the mark, and that his negroes had cleaned it, were words significant of the speaker’s meaning and of the sense which he intended his language should convey. Hayes’s evidence sustained the plaintiff’s allegations and inuendoes, and the conclusion of the jury removes any doubt of vagueness in the expression of rvhich the defendant desired to avail himself, and as he could have offered evidence, under his plea, to show that the words were used in a different and qualified sense, it is too late, after verdict, to urge a different meaning from that which the jury has found, and which the Court is bound to adopt. (Stark. 53.) No reference- to extrinsic circumstances was necessary to explain the language which Gunter used, and no averment of such circumstances was therefore required. A prefatory averment was superseded by the apparent additional import of the words used, and connecting the plaintiff with the defamatory words, it was enough that the matter should be set out with the proper inuendoes. Even if a direct averment be necessary, the omission of it must be pointed out by a special demurrer, and will be intended after verdict. (Stark. 385.)

This Court is, therefore, satisfied with the charge of the presiding Judge instructing the jury, — “ That the 7th count would suffice if the jury believed that the words would well carry the meaning that had been ascribed to them, and were understood and should have been understood by the witnesses according to that meaning.”

If this count be good, it will scarcely be necessary to dwell long on the 2d, 3d, and 4th grounds of appeal. The practice has long been settled in this State, that if any one of the counts supports the verdict, it shall stand good, notwithstanding all the rest be bad. Hogg ads. Wilson, 1 N. & McC. 216. And although the English rule is different in civil cases, Lord Mansfield, in Peake vs. Oldham, Cowp. 276, strongly expresses his disapprobation of it, and recommends a conformity to that adopted in England, in criminal causes.

The second, fourth and sixth counts depend upon the motives which influenced the defendant in the communication that he made to A. P. Yinson. The presumption that a party was actuated by malice in his communications affecting the character of others, may be rebutted by the occasion upon which they are made. These communications are either conditionally or absolutely privileged, the distinction depending upon the question of malice. (Cooke’s Law of Def. 60.) A communication conditionally privileged, under which a party claims protection, loses its privilege upon proof of express malice. The words addressed by the defendant to A. P. Vinson conveyed clearly the charge of a crime; but he insists that it was made to forward the ends of justice, and was, therefore, a privileged communication. If he had shown, that his intention was bona fide to prosecute a felon, it was competent for him to do so ; but he offered no evidence, even of probable cause, for his suspicions, nor has he ever taken any other steps in the prosecution which he contemplated. The jury was properly instructed to inquire, “ Whether the defendant, when he rehearsed to Vinson thenarration he had given to Hayes and Edward Gunter, was really applying to a magistrate for a warrant.” It would be dangerous to give immunity to all communications to magistrates imputing crimes, and the presiding Judge very properly regarded that made by the defendant to A. P. Vinson as a privilege depending on the motives which influenced him.

Whether the 9th and 11th counts were proved was left to the jury, and, under the charge, this Court would have been satisfied with a finding on either.

In reply to the 8th count, the defendant might have relied upon his communication as an absolute privilege, and if he could have shown, that it was a bona fide accusation before a magistrate, supported by probable cause, his justification would have been complete, because the occasion existed and the matter complained of was pertinent. This, however, was a question for the jury, and was submitted to them with instructions on the law concerning probable cause. If there was no probable cause, there was no lawful occasion to speak the words, and no necessity to prove actual malice.

The 5th ground on which the defendant rests his motion for a new trial is, that the damages are excessive and unreasonable.

In such applications, the Court must look both to the facts and circumstances of each case, and will exercise, with great caution, the power of granting new trials, in cases of tort, which appropriately belong to the jury, and over which their discretion should be uncontrolled, if they be indifferent between the parties. It would be a dangerous invasion of the province of a jury if the Court should undertake the supervision of their verdicts in all cases of torts, where the damages are ideal, and as to the amount of which, the same evidence will produce different conclusions on minds equally honest; and consequently, no satisfactory rule could be referred to for our government. It is better, therefore, and proper, that, in such cases, the verdict of a jury should not be disturbed unless for good cause, otherwise litigants may be invited to participate in a lottery in which the drawn numbers are, sometimes, all blanks.

The first case in which a new trial is reported to have been granted, in England, upon erroneous verdicts, is Wood vs. Gunston, in 1665 ; (Styles’s Rep. 462,) and this was for excessive damages for speaking slanderous words. The counsel for the plaintiff opposed it as a thing without precedent and of dangerous consequence : But the Court said, that “ When the jury by indirect dealings, might not be indifferent between the parties,” they would, in the exercise of a judicial discretion, grant a new trial.

In Huckle vs. Money, (2 Wils. 206,) Lord Camden declares, “ that it is very dangerous for the Judges to intermeddle in damages for torts. It must be a glaring case, indeed, of outrageous damages, and which all mankind at first blush must think so.” The character of the case prompted to the use of stronger language than his Lordship used on other occasions. It was for false imprisonment of the defendant on a general warrant of the Secretary of State, on suspicion of having printed the North Briton No. 45. Lord Mansfield, in one case, justified this exercise of judicial power on the ground, that passion, partiality or prejudice had influenced the jury. (Gilbert vs. Burtenshaw, 1 Cowp. 231.) Chambers vs. Robinson, (1 Str. 691,) is the first case where a new trial was granted merely for the excessiveness of the damages only; and the reason on which it was placed is, “ to give the defendant the chance of another jury,” which, in the language of Lord Camden, would be a reason for a third.”

This Court will never exercise an arbitrary discretion. “ Where a jury, by indirect dealings, might not be indifferent between the parties,” or it shall appear that the damages assessed are “ flagrantly extravagant,” a new trial should be granted to promote the ends of justice.

It is not perceived that the defendant’s case is within the operation of this rule, and the motion is, therefore, dismissed.

O’Neall, Wardlaw, Frost, Withers and Whitner, JJ.„ concurred.

Motion dismissed.  