
    Josiah M. Atkinson vs. James Hartley.
    
      fit an action of slander, where t|ie witnesses were doubtful whether the words spoken were, “you are a damned mulatto son of a bitch,” or « you are a damned mulatto looking son of a bitch,’’ and the words laid were, “you are a damned mulatto son of a bitch,”, the court Held, that the words proved did not support the plaintiff’s declaration ; although at the time of uttering the words, the defendant, after the witnesses were called upon by the plaintiff to take notice of what he said, repeated, “I never eat my words; if you are. not a mulatto, your looks belie you.”
    Sumter, March Term, 1821. ■
    This was an action of slander. The declaration contained twp counts. The words charged in the first were, “ you are a damned mulatto son of a bitch.” Those in. the second were, “ you are a mulatto son of a bitch.”
    Two witnesses, examined by commission on the part of the plaintiff, stated, that in a quarrel between the parties, where both were much excited, and when, as it was supposed, the plaintiff had gone into the house to get a gun to fire on the defendant’s son, he said to him, bring out your gun and shoot, “ you damned'mulatto son of a bitch, or you damned mulatto looking son of a bitch;” but which of these expressions was used, the witnesses could not say. One of them stated further, that when the defendant used the expression, the plaintiff called to them to take notice that the defendant called him a mulatto ; to which defendant replied, “ I never eat my words, and you may digest them as you can. If you are not a mulatto, your looks belie you damnably.”
    The jury, contrary to the opinion of the court, found a verdict for the plaintiff for S 500 damages. .
    A motion was now made for a new trial, on the following grounds:
    1st. Because the words proved did not support the plaintiffs declaration.
    2d. Because they were spoken in the heat of passion.
    3d. Because the damages were excessive.
   Mr. Justice "Johnson

delivered the opinion of the court.

It has not been denied that the words laid in the declaration are actionable. This court has frequently so decided. (See Eden vs. Legare, 1 Bay, 171. Wood vs. King, 1 Nott M'Cord, 185.)

And it is not only incumbent on the plaintiff to set out a good case on his record, but he must prove it, at least substantially. (2 Selwyn N. P. 1168.)

In relation to the first ground in the brief, it is only necessary then to enquire, whether the words proved do support the declaration ? 1

To render words actionable, they must be spoken affirmatively, and import a direct charge. (2 Esp. Dig. 100. Starkie,72. Van Sansselaer vs. Dole, 1 Johnson's Cases, 279.) It follows, therefore, that those that are equivocal or spoken adjectively, are hot so. (6 Bacon, 237, 240. 2 Esp. Dig. 99.) Now the words proved in this case are, that the defendant said to the plaintiff, you are a mulatto, or you are a mulatto looking son of a bitch. Take the first, and they impute a direct legal charge; but take -the latter, and in a legal point of view they are inoffensive ; and which of these were used, the witnesses are unable to state. The plaintiff has not, therefore, proved his case; and the jury have founded their verdict on the conjecture that the first were used, without any evidence to authorize, it.

It has been contended, in opposition to tbs present mo,. cion, that the defendant's reply to the request of the plaintiff, that the witnesses should take notice that the defendant called him a mulatto, was an avowal of that charge, and resolves the doubt as to the words first spoken. I think, not. They are involved in the same doubt and uncertainty, and I am inclined to think would bear a different construction. “ I never eat my words, if you are not a mulatto, your looks belie, you.” The first member of this sentence would seem to be an avowal of the fact charged by the plaintiff, but the explanation given in the last, repels the idea. The plainest exposition which can be given to the whole, taken together, is, ‘s I said you looked like a mulatto, and I think so still.”

Miller, for the motion.

W. F. De Squssure Holmes, contra.

This view of the case supercedes the necessity of considering'the other grounds.' I will, however, remark as to the second, that actions for words spoken in heat, ought not to be encouraged ; although in a legal point of view passion is only a circumstance to repel the presumption of malice, which is the very basis of the action of slander. — - (2 Selwyn, N. P. 1156,) And where it appears to the satisfaction of a jury that they tyere unpremeditated, and spring involuntarily out of a burst of passion, they ought never to find damages.

The' motion is granted.

Justices Mott, .Colcock and Huger, concurred.

Justices Richardson and Gantt, dissented.  