
    
      Reuben Morgan vs. Daniel Livingston.
    
    In an action of slander, if the words be proved substantially as laid, or if the words are in themselves actionable, and some of them which . are actionable be proved precisely as laid, it will be sufficient.
    A verdict will aid the omission of that which was necessary to be proved at the trial, and without which the1 jury could not have found for the plaintiff! Where, therefore, in an action of slander, the declaration, without laying any time, alleged a trial before a justice of the peace, at which the plaintiff was sworn as a witness, and in reference to which words imputing perjury to the plaintiff were spoken, it was held, that the verdict aided the omission of proof that the person before whom the trial was had was a justice of the peace, and had jurisdiction of the case, although the proof shewed that the trial was had in October, 1841, after the office of justice of the peace had been abolished, and that of magistrate substituted.
    The words “ you swore a lie,” held, with proper averments and a colloquium which were sustained by the proof, to impute perjury, and therefore to he actionable.
    The words, u you get your living by sneaking about when other people are asleep.” “ What did you do with the sheep you killed ? Did you eat it f “ It was like the beef you got negroes to bring you at night.” “ Where did you get the little wild shoats you always have in your pen.” “ You are an infernal roguish rascalhelcTto be actionable, as containing a charge of larceny in more instances than one.
    It is not necessary that the words in terms should charge a crime. If, taking them altogether, in their popular meaning, such is the necessary inference, they are actionable.
    Where the meaning of the words is doubtful or ambiguous, the witnesses who heard them may be examined as to the sense in which they understood them.
    In order to shew actual malice, publications of the slander, made y more than six months before, and after the action was commenced, may be proved.
    Testimony tending to shew that the defendant was actuated by a mercenary and selfish purpose, as that he coveted the plaintiff’s land, and hoped by defaming him to compel him to remove, may be introduced to shew actual malice.
    Where one party gave in evidence the declarations of a free negro? 
      held, that the other party might give in evidence his declarations at another time, to discredit his testimony.
    Motion for new trial, on the ground of excessive damages, refused.
    
      Before 0’Neai.l, J. at Edgefield, Fall Term, 1845.
    The report of his Honor the presiding Judge, is as follows :
    “ This was an action of slander for words spoken, charging, as it was alleged, perjury and larceny.
    “ The words supposed to impute perjury were introduced by a colloquium, in which was set out a suit before Esq. Martin, a magistrate of Edgefield district, in which David Denny, as guardian of a free negro, was plaintiff, and Daniel Livingston the defendant, and in which the plaintiff was examined as a witness, and testified to material facts, and the defendant, speaking of his testimony so given, said to the plaintiff, ‘you swore alie.’ These words were in another count, laid in the third person. The words supposed to impute larceny, were as follows, viz : ‘You hired a negro to kill a beef and bring it to you— you are a sheep-killing son of a bitch — you make your living at night when honest people are abed. You get your living by sneaking about of nights — you stole a beef — you are a roguish rascal — you stole some hogs— you got some hogs dishonestly.’ The charge of larceny was also laid in another count, in the third person.
    “ To enable the court to decide on the motion for non-suit, it is necessary that I should state the evidence on the part of the plaintiff, as to the publication of the words. Lewis Sample proved that on Sunday the 12th Nov. 1848, at Bethany church, he and others had met for the purpose of holding a class meeting. The plaintiff, who is not a member, went with him to the meeting ; as he, the witness, passed by the defendant’s, he saw that his fence about his wheat was thrown down. After a little the defendant, who is a member of the church, came in company with Luke Smith, apparently much excited, and after some conversation about the fence being down, in which Morgan did not deny that he had thrown it down, (it seemed that Morgan, under a purchase from Martin, claimed the land, and that B. Perry also claimed it. Perry had rented it to Livingston. The fence was thrown down to bring about a suit to try the title — ) Livingston said to the plaintiff, ‘ you get your living by sneaking about when other people are asleep.’ He, Livingston, asked the plaintiff, ‘ what did you do with a sheep you killed 1 did you eat it.’ He said ‘ it was like the beef you got negroes to bring you at night.’ He asked the plaintiff ‘ where did you get the little wild shoats you always have in your pen.’ He said, ‘ you are an infernal roguish rascal.’ The witness then said the defendant accused the plaintiff of swearing a lie. He said, ‘you swore a lie.’ ‘He,’ the defendant,had ‘left money at Esq.' Giles Martin’s to pay you for it, you can get it, if you have not.’ This witness was asked what he understood by the defendant's previous charges about the sheep, beef and hogs, and words used in that connection ; he replied that he understood the defendant to charge the plaintiff with stealing.
    “ Col.'David Denny proved, that as the guardian of a free negro, named Wade Dennis, he sued the defendant before Esq. Giles Martin, for some wheat sold to him, the defendant, by the free negro. The plaintiff, Morgan, was the witness to prove the quantity. He swore there were 14 1-2 bushels, but half a bushel was deducted on account of the wheat not being well cleaned. The defendant, in October, 1841, speaking of that case, and the evidence given by Morgan, said, ' he swore to a lie, and he knew it — he swore to a bushel of wheat more than he got.’ By Dennis’s directions, he only claimed from the defendánt before he sued him $5. Eight had been previously paid.
    “ These two witnesses are all who proved a publication of the words before action brought, who were examined before the plaintiff closed, and it is in reference to their testimony the motion for non-suit is to be decided. The defendant moved for a non-suit on two grounds ; 1st. that the words were not proved as laid, and 2nd; that the words proved were not actionable. I overruled the motion on both grounds. The defence assumed a wide range; 1st. in contradicting the publication proved by Sample, and next, as to the probability of the truth of the charges, and the character of the plaintiff. Luke Smith proved he was with the defendant, and nearer to him than Sample. He said, the defendant’s words were ‘ you hired a negro to kill a beef and bring it to you — you are a sheep-killing son of a bitch. You make your living at night, when honest people are abed. You swore a lie.’ The circumstance giving rise to the charge about the beef, arose in this way. The defendant, many years ago, overseed for Col. Brooks. One of his beef cattle was killed by some one, near the church, (Bethany,) and near to Morgan’s residence. Morgan’s dog was found next day at the place where the beef was killed. A great stir was made about it, and in some way attention was directed to Morgan. An examination of Col. Brooks’ negroes was concluded on, on the evening of the day after the night the beef was killed. Ben Perry, •Lance Nichols and Mark Riley, went by Morgan’s to get him to attend the examination. Perry said, when he rode up Morgan was walking in the yard, and when he spoke to him, he said ‘ something had happened he did not like.’ This last statement of Esq. Perry’s was partially contradicted by James Perry, who said his brother said the plaintiff said nothing about it until the negroes began to confess. Nichols said he did not heal' what passed .between Esq. Perry and the plaintiff. Mark Riley said Morgan said nothing on the way to Brooks’ quarter or at his own house, that he heard, about the beef, until the negroes were taken up. After the party got to Brooks’, B. Perry, Esq., who was the most active as well as the most intelligent of the party, proved that they first examined a slave named Mott, who denied all knowledge of the affair, but referred them to Willis. He (Willis,) said he carried some •of the beef to Esq. Martin’s, where he had a wife, and some to Col. Brooks’ residence. He then paused ; the plaintiff, who was present said, ‘ I expect, gentlemen, a part of that beef came to my house. I was from home, and in Newberry. My wife, on my return, told me that in the night a negro hailed after she had' gone to bed, and asked if she did not wish to buy some beef. She refused, and told him to be off, that Morgan was not at home. The sext morning, she said, she found some beef had been left at the door, in a basket, and fearing that something wrong was intended, she made her little boy take it and throw it away.’ He said he could shew the bones, and did the next day or very soon after shew them. There was some contrariety of opinion whether the bones exhibited the appearance of bones stripped by dogs, hogs and birds — or of ■being boiled and the meat thus taken off, though none of ■the witnesses particularly examined them. I think the ■beef was killed Sunday or Sunday night. On Tuesday, Livingston, Morgan and Lance Nichols came to Esq. Martin’s. They stated to him that part of the beef had been carried to Morgan’s, (as has been already detailed.) Martin advised Morgan to fly the country. This he refused to do. Said his wife had received the beef, and that he was in Newberry. On Wednesday, he came back with his brother-in-law; abused him, Esq. Martin; told him his wife got the beef; he had nothing to do with it. William ■Summers proved, that in the September preceding, Morgan crossed Saluda river at night, in a very suspicious way ; that he mentioned it to Coleman Nichols the same night. Coleman Nichols denied this, and said no such thing occurred. Summers’ character was that of a young man addicted to gambling. Two witnesses said they would not believe him — three that they would. The next thing was about the charge of killing a sheep. Luke Smith said he asked the plaintiff what was meant about the ■sheep. He said while Wade Dennis lived with him, Mark Riley’s sheep plagued him. He said he sent Dennis to drive them out of the field. He killed one. Brought it to the house, cleaned it, and he, the plaintiff, sent half to Mark Riley. This was denied by Riley. It was alleged further in the case, that the plaintiff had killed a sheep belonging to Yarborough. The proof fully explained that in this way the sheep was without a known owner. It had got fat on Morgan’s wheat. He was advised by Perry to kill it, and when he could find who was the owner, pay for it. He did so — and finding it was Mr. Yarborough’s, he paid his son for it.
    
      11 Sheppard Davis proved, that passing through an old field near Morgan’s, his puppies attracted his attention to a briar patch, and he found buried in it the entrails of some animal. He directed the defendant’s attention to it. They went together to Perry’s, and Livingston rehearsing it, Perry exclaimed £ boys, Reuben won’t do.’ Perry said this exclamation was drawn from him by Livingston’s artful statement. In a drunken fight at Perry’s, on Sunday, between Perry and Morgan, a young man named Albane Martin, said that Perry called Morgan ‘ a beef stealing son of a bitch.’ William Dozier was present at the fight, and said no sueh observation was made. Col. Denny proved, that last summer, Albane Martin, rehearsing the same matter, said that Perry said, ‘you sheep-stealing son of a bitch.’ There was an insinuation, in the course of the defence, that Ben Perry had given rise to a charge that Morgan had stolen a bed quilt. But this was fully explained, and the plain tiff’s innocence abundantly shewn. Robert Gentry proved that he met Morgan out at night on the road, near Lorick’s, (now Huiett’s) ferry, with a negro fellow of bad character behind him. He told Gentry he was out for a spree. Crawford Perry proved, that the next day after the beef was killed, (Monday,) the circumstance was twice, and at two different places, mentioned in the plaintiff’s hearing. He said nothing about any part of it going to his house.
    “The matter about the perjury was thus undertaken to be excused. Morgan proved that the wheat for which the defendant was liable to pay, was 14 bushels, at $1 per bushel, making $14. Eight dollars had been paid, leaving a balance of $6. Judgment was given for this sum. Esq. Martin, examined for the defendant, proved that Dennis, the free negro, for whom the recovery was had, told him the judgment was for too much, and left with him $1, to be refunded to the defendant. The suspicion of falsehood in Morgan’s oath, thus created by Dennis’s statement, was allowed to be explained by his statement of his reasons to Esq. Perry, why he did not demand more than $5 from the defendant. Perry proved, that Dennis told him that in truth the defendant did owe him $6, but that the defendant disputed a dollar of it. That he, the negro, was in a difficulty, (being charged with some crime,) and he would give it up.
    “ The plaintiff alleged that the defendant was actuated not only by legal malice, but by malice in fact. Esq. Martin proved, that when he offered to the defendant the $1 left with him by the free negro, the defendant told him to give half of it to Morgan for swearing the lie, and the other half to Col. Denny for getting him to swear it.
    “Last August, the defendant, in a conversation with Esq. Perry, said that ‘ Morgan had sued himthat ‘ what he had said was true, and he would make it appear he had sworn a lie in Denny’s case, and used beef that did not belong to him.’ This witness proved that soon after Morgan moved from Newberry into Edgefield, and before there, was any thing about the beef, Livingston was dissatisfied about Morgan buying the land on which he settled, which Livingston wished to buy himself. He said he never heard him speak well of Morgan afterwards. Heard him say he was a dishonest man — he did not get his living honestly. When the beef was killed, Livingston said, if the neighbors would stick .together they could move him, meaning, as witness understood, the plaintiff.
    
      “ The plaintiff’s character while he lived in Newberry, where he was raised, was unexceptionable. After he went to Edgefield, Col. Brooks, Luke Smith, Mark Riley, James Perry, Crawford Perry, Isaac Riley, Jr., Wm. Riley, Giles Martin, Esq., Albane Martin, Sheppard Davis, James Oatan and Robert Gentry, gave him a bad character. Three of these witnesses, however, Luke Smith, Mark Riley and James Perry, were relatives of the defendant, and another of them, Esq. Martin, had signed a written certificate of his good character. On the other hand, Ben. Perry, Esq., Maj. George Huiett, Col. David Denny, Peterson Borom, A. R. Able, Esq., Mat Walton, John Perry, Wm. Dozier, A. L. Nicholson, Lewis Sample and John Coleman, concurred in giving him a good character. They said, generally, that he had lived down all the suspicions which had been created against him.
    
      “ The case was fully and most carefully explained to the jury. They found for the plaintiff $1050, and although, considering the circumstances of the defendant, who is in comfortable circumstances but not a rich man, I think the verdict high, and more than I would have found, yet I cannot say that the damages were excessive.’*
    The defendant appealed, and now moved this court for a non-suit.
    1. Because the words were not proved on the trial as laid in the declaration.
    2. Because the words proved are not actionable.
    And failing in that motion, then for a new trial:
    1. Because his Honor admitted proof of slanderous words, uttered more than two years before the commencement of this suit.
    2. Because proof that the defendant, some seven or eight years previous to the commencement of. this suit, expressed dissatisfaction at plaintiff’s purchasing land in defendant’s neighborhood, was allowed to go to the jury as proof of malice, although his Honor was requested to charge the jury that the testimony was incompetent.
    3. Because, whether the words proved impute the charge of larceny, should have been decided by the court; and his Honor erred in permitting the witness to give his understanding of the words as competent testimony for the jury.
    4. Because his Honor admitted, on the part of the plaintiff, proof of the declarations of a free person of color, to explain the circumstances under which the defendant had made the charge of false swearing.
    5. Because the damages, upon the proof of the plaintiff’s character, are excessive and unreasonable.
    
      Griffin & Bonham, for the motion.
    
      Pope &f Bauskett, contra.
   Curia, per O'Neall, J.

The first ground of appeal is, that the words were not proved on the trial as laid in the declaration. The rule is now well settled, that if the words be proved substantially as laid, it will be sufficient; Hogg ads. Wilson, 1 N. & McC. 216. So too, where the words are, in themselves, actionable, it is sufficient to prove some of them which are actionable, provided they be proved precisely as laid Stark, on Slander, ch. 25, m. p. 350. Comparing the words proved with those laid in the declaration, it is plain that both these rules have been complied with. The words laid in the first and second counts — “you swore a lie,” “he swore a lie,” were proved precisely as laid. Most of the words laid in the third and fourth counts were proved substantially.

The counsel for the defendant do not deny this; but they contend that Giles Martin, Esq., before whom the false oath was taken, who is described in the declaration as a justice of the peace, was not, in fact, a justice of the peace, but a magistrate; inasmuch as, by the Act of 1839, the office of justice of the peace was abolished after the 1st March, 1841, and that of magistrate substituted. It is a sufficient answer, to say that no such ground was taken on the trial; nor is any such ground indicated in the notice of appeal. The trial, it seems, took place in October, 1841 ; there is, however, no time laid in the declaration, and the proof certainly corresponded with the allegation in the declaration; viz: that Giles Martin was a justice of the peace, at the time of the trial of the case in which the plaintiff was sworn. The declaration alleges that he had jurisdiction of the case. After a verdict, the legal implication is, that all these matters were proved as laid, and therefore, no advantage can be taken of them. In 1 Tidd Pr. 451, it is said, “ a verdict will aid the omission of that which was necessary to be proved at the trial ; and without which, the jury could not have found for the plaintiff.” In this case, unless the oath of the plaintiff had teen taken before one clothed with legal authority to administer the oath and try the case in which he was examined, the jury could not have found the verdict which they did. Such a verdict being found, we are bound to conclude, either that the proof was exactly according to the averment in the declaration, or, if that was defective, that the proof made out the case, and supplied the defect.

The second ground is, that the words are not actionable. There can be no doubt, that with the averment and colloquium in the first and second counts, the words laid in them impute perjury. They have been proved as laid ; all the averments have been sustained by the proof. The materiality of the oath is shewn by adverting to the fact, that the issue before the magistrate was, how much wheat was sold and delivered by Dennis ? The plaintiff proved, as defendant alleged, one bushel too much — and for that, judgment was given. Hence, the swearing, (if false) was on the very point in issue. The words in the third and fourth counts, and those proved under them, are, I think, clearly actionable. Take the words proved by Sample : “ you get your living by sneaking about, when other people are asleep“ what did you do with a sheep you killed ?” “ did you eat it ?” “ it was like the beef you got negroes to bring you at night ?” “ where did you get the little wild shoats, you always have in your pen ?” “ you are an infernal roguish rascaland there cannot be any doubt about the intention of the defendant to charge larceny in more instances than one. In Davis vs. Davis, 1 N. & McC. 290, the words were spoken of a merchant; they were, you have got my money upon your shelves; you are a damned rogue.” These words, without any preparatory averment or colloquium about the plaintiff’s trade or business, were held, of themselves, to point to the plaintiff’s business ; and, in themselves, to make an actionable imputation. The case before us, unquestionably, is much stronger.

It is not necessary that . the words, in terms, should charge a larceny. If, taking them all together, in their popular meaning, such is the necessary inference, then there is no doubt that they are actionable. In Davis vs. Johnston, 2 Bail. 579, the words were, “ tell him he is riding a stolen horse, and has a stolen watch in his pocket they were held to be a plain charge- of horse stealing and larceny. .The words here, beyond all doubt, as plainly point to sheep stealing, and stealing beef. But if the words were doubtful and ambiguous, the plaintiff had the right to inquire of the by-standers, how did you understand the words ? and if they said they understood them as charging larceny, and such an understanding might fairly have been received from the words — it would prevent a pou-suit, and make it necessary for the jury to inquire, did the defendant use the words in the offensive sense in which the hearers understood them 1 This legal position is, however, denied by the defendant’s third ground for a new trial ; it is, hence, necessary to shew that it is fully sustained. In 2 Stark, on Slander, (m. p. 52,) it is laid down as law, that “ where the words are spoken in a foreign language, or where the terms are ambiguous, and it is doubtful in what sense the speaker intended them, the question is, in what sense the hearers understood them ; and if, where words may have two meanings, the hearers understood them in an actionable sense, the action is maintainable ; for the slander and damages consist in the apprehension of the hearers.” Mr. Starkie cites, for this position, Fleetwood vs. Curley, Hob. 267; and on turning to this venerable and accurate Judge and Reporter, the case iully sustains it. Our cases maintain the same doctrine. In Fisher ads. Rotereau and wife, 2 McC. 189, the words were, “ a thief,” “ a bloody thief.” In that case, the witness proving the publication was asked in what sense she understood the words. Judge RichardsoN, who delivered the opinion, says, “ but they (the words) do ex vi termini import felony, and are slanderous. And whether spoken in another sense or in mere passion, depending upon intention, was the subject of evidence, and was fairly submitted to the jury.” In Davis vs. Johnston, 2 Bail. 579, the rule is stated as follows: if words are susceptible of two meanings, one imputing a crime, and the other innocent, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense the defendant used them. Their conclusion must be formed from the whole of the circumstances attending the publication, including the sense in which the witnesses understood the words.” The case of Hugley vs. Hugley, (Hughey vs. Hughey, is the true name of the case,) 2 Bail. 592, in no way conflicts with Davis vs. Johnston ; its rule, that words are to be construed in the popular sense in which the rest of the world naturally understand them,” is the rule also laid down in Davis vs. Johnston ; and a resort to the witnesses, for their understanding of the charge, is one means of ascertaining how “ the rest of the world understand them.''1 The case of Olmstead vs. Miller, 1 Wend. 506, when rightly understood, does not conflict with our cases.

The witness proving the publication, said he could not give the precise xvords, but that he understood the defendant — and any person hearing him, would have understood him — as charging the defendant with prostitution, <fec. It is in reference to this, that Savage, C. J. says, it is important that the rule, that the plaintiff should prove so much of the words laid as will sustain his cause of action, should be adhered to, “ that the defendant may know what he is to meet; and that he may not be held accountable for the misunderstanding of witnesses, as he might be, if they were permitted to testify to the import of his words. The court and jury are to construe his words, and not the witnesses.” There is no doubt that the dictum of C. J. Savage is good law. It requires that the words used by the defendant should be proved ; but it by no means excludes the position, that after the words are proved, if they be ambiguous or uncertain in their meaning, the witness may be asked, how he understood the words thus proved. Nor does the case of Gibson vs. Williams, 4 Wend. 320, interpose any obstacle. That case merely afflrms that the opinions of witnesses, that the plaintiff was meant and intended by the words, are not competent evidence. That may be law, and still it does not affect this case' — for it does not rule, that when the words are capable of two meanings, one charging the plaintiff, and the other not, the witness may not say how he understood them. After a full review of the cases, I am satisfied that the witness was allowed, very properly, to say in what sense he understood the defendant to use the words; and having answered, that he understood him, by the words he used, to make a charge of larceny, there can be no reason why we, after a jury have concurred with the witness, should ■ say the words were used in some innocent sense, and are, therefore, not actionable.

The first and second grounds of the defendant’s motion for a new trial, are certainly misconceived. .-The action of slander is intended not only to recompense a plaintiff for an injury done to his character, but also to punish the • defendant for his malice. Any evidence which shews that the slander has been again and again repeated, is competent to prove malice. The greater length of time in which the defendant has repeated his publications, evidences that his words have not been the result of passion* and shews a deliberate purpose to injure the plaintiff. It is true, if the plaintiff had not proved a publication within six months before action brought, he could not have given anterior publications in evidence ; for the statute might have cut them off. But having made a case, to which the statute did not and could not apply, the plaintiff, to aggravate the damages, might prove the anterior publications, as well as publications after suit brought, and thus shew previous, subsisting, and continuing malice» So too, proof shewing that the defendant was actuated by a purpose purely selfish and mercenary, in uttering 'the slander, was further evidence of the defendant’s evil purpose. The testimony, that when the plaintiff bought his settlement near the defendant, he was dissatisfied with him, and from that time, never spoke well of him, and that he wished to compel him to remove, were certainly facts proper to go to the jury, to enable them to say how far the mean and mercenary motive of coveting the plaintiff’s land, prompted the defendant to utter the slander. And if they found-it to be the beginning of his malice towards the plaintiff* it would very properly make him a fitter subject for vindictive damages.

There is nothin in the fourth ground, when it is understood, It may be, that the defendant’s question to Col. Denny, how much did Wade Dennis direct you to claim from the defendant ? was waived. But in fact, the same thing was asked in the question, how much did you claim before suit brought1? For Denny was the guardian of the negro, and said, of his own knowledge, he knew nothing of the claim. But the testimony objected to in the fourth ground, did not come out until after Giles Martin was examined, and was in reply to it. Martin proved for the de fendant, that Dennis, the free negro for whom the recovery was had by Denny, on Morgan’s oath before him, told him the judgment was for too much, and left with him one dollar to be refunded to the defendant. As this declaration of Dennis tended to shew that Morgan had sworn falsely, it was surely competent to destroy it, by shewing that he had made other statements. So far as the declaration was to be regarded, it stood upon the same footing as if Dennis had, himself, on the stand, made the statement. If it had been possible for him to be examined, and he had made such a statement, his declarations made at other times and to a different purpose, would have been perfectly competent to shew how far his statements should be credited, or discredited. The same rule holds, as to his declarations.

The fifth ground, which complains that the damages found are excessive, cannot help the defendant. Having known both parties before they left Newberry, I was, perhaps, more than ordinarily anxious that exact justice should be done; and in that spirit I presented every consideration to the jury, to induce them to find a.much smaller verdict than they did find for the plaintiff. But it was all in vain — for the malice of the defendant was apparent; it was, too,, probable, that his desire to possess Morgan’s land, had led him to publish many of the slanders which he did, during a course of several years. Even after the suit, he had avowed the truth of his words, and his intention to prove them. On the trial, although he did not justify, he approached it as near as he could, and seemed to say, although the plaintiff may not be legally guilty, yet, I then had, and still have, good grounds to believe him to be guilty. So, too, the fearful onslaught made on the plaintiff’s character, if the jury believed, as they probably'did, that the defendant’s own slander was the principal cause of the reproach cast upon the plaintiff, was a very aggravating circumstance, especially when it was shewn by many witnesses oi character and intelligence in the neighborhood, that the plaintiff had so lived, after the beginning of the reports against him, as to shew that they had no just foundation. Under all these circumstances, we cannot say that too great a sum has been found against the defendant; it may teach him to bridle his tongue for the future.

The motions for non-suit and new trial, are dismissed.

Richardson, Evans and Wardlaw, JJ. concurred.  