#### Philip Brittain *v.*James Allen.

Words which in themselves do not import a slanderous meaning, must in declaring on them as slanderous, be rendered so by an *innuendo,*connected with an averment that they were spoken of the plaintiff.

But if tire words are in themselves slanderous, it is only necessary to liver, that they were spoken of the plaintiff.

After the new trial granted in this case, *(ante Sdvol,*120) it was tried again at Buncombe, ontíic fall circuit of 1830, *168before his Honor Judge Mangum. The declaration was as follows : *Philip Brittain*complains of *James Mien*in custody &c. For that whereas the said *Philip*now is a just &c. and whereas the said *Philip*hath not been guilty, nor until the committing of the several grievances by the said *James*&e. suspected to have been guilty of the infamous crime of feloniously passing counterfeit money &c. by means of which said premises the said *Philip*before &c. had deservedly obtained &c, yet the said defendant well knowing &c. and contriving and wickedly and maliciously intending to injure the said *Philip*in his good name &c. and also to cause him to be suspected &c. to be guilty of the felonious offence of passing counterfeit money, and that he had subjected himself &c. heretofore, to wit, &c. in the presence &c. falsely and maliciously spoke of and concerning the said *Philip*these false, scandalous, malicious and defamatory words, that is to say: *“*Our former senator” (meaning thereby the said Philip, he the said *Philip*having been a senator in the legislature of this state) “ used vigilance and diligence in prosecuting *Welch*for passing counterfeit money,” (meaning thereby one *WiÜiaui Welch*who was guilty of the crime ' of passing counterfeit money,) “ in order to prevent suspicion from falling upon himself,” (meaning thereby the •the said Philip.) ‘ ‘ He” (meaning the said *Philip) “ procured Roadman”*(meaning one *William C. Roadman,*who prosecuted the aforesaid *William Welch*for passing counterfeit money ) “ to prosecute him” ( meaning the aforesaid *William Welch) “to extricate*himself,” (meaning the said Philip)j and that *“*he” (meaning the said *Philip) “*was as deep in the mud, as Welch” ( meaning the aforesaid *William Welch)*‘‘was in the mire” *;*meaning and intending thereby, that the said *William Welch*was guilty of the scandalous and felonious crime of passing counterfeit money, and that the said *Philip*was also guilty of the said scandalons and felonious offence of pas- • sing counterfeit money ; by means of the committing of which said several grievances by the said *James 8pc.*

Plea — not *guilty.*

After proof by the plaintiff of the defendant’s speaking-tile words laid in the declaration, he offered proof of Ms *169speaking other words of the same kind, both before and after the commencement of the action. The defendant objected to this testimony, but the objection was overruled by the judge.

A verdict was-returned for the plaintiff, and the defendant appealed.

*Gaston*& *Badgeu*

for the defendant, upon the motion for a new tidal objected, that words not declared on were admissible only to show, that those declared on were spoken with a malicious intent ; and of course, that it was erroneous to receive them when it was not incumbent on the plaintiff to prove malice in the defendant; and they cited *Starkie on Slander*397, 398. *Starkie on Evidence 4thpart, page*870. *Stuart*v. *Lovell*(3 *Eng.*C. *L.*S6l).

They also moved in arrest of judgment, because the slanderous meaning of the words did not sufficiently appear, and because there was not a distinct averment that they were spoken of and concerning the plaintiff.

*Iredell, contra.*

HeNDEusoN, Chief-Justice.

We can scarcely conceive a case, which does not require some introductory matter, if for no other purpose than to show that the plaintiff is the person meant. As if the words are “you are a thief;” it must be stated, that the words were addressed to the plaintiff, to make an application of the word *you.*So if they be, “he is a thief;” that the plaintiff was the subject of the conversation ; or “ «2. *B.*is a thief,” that the plaintiff is the *Ji. B.*meant. Some words require more introductory matter than others. Where the words are perfectly harmless, as if in this case, the only words had been, “ our former senator is as deep in the mud as *Welch*is in the mire,” it must be stated, that tiie defendant imputed to *Welch*the crime of knowingly passing counterfeit money; also that the plaintiff had been a senator, with an averment,, that he was the person meant, and an *innuendo,*that he meant to impute to the plaintiff the same crime; But the office of this introductory matter is only to fill up and supply what the words themselves *want*of being a *170slanderous charge on the plaintiff. In the present case, the words are, *“*our former senator used vigilance- and diligence in prosecuting *Welch*for *passing*counterfeit money, in order to prevent suspicion from falling upon *himself;*he procured *Bondman*to prosecute him, to extricate himselfand that he was “ as deep in the mudas *Welch*was in the mirewith an averment, that the plaintiff had been a senator, and was the person described and intended by that *appellation;*and that the defendant intended to impute to the plaintiff the crime of passing counterfeit money. The jury have affirmed all these averments to be truc; and it is the province of the court to see, whether the jury have *drawn*a probable and rational conclusion. For the introductory matter and the *colloquium*are put upon the record for that purpose only, that the jury should not put an arbitrary and capricious construction on the words. And this introductory matter supplies, as was said before, what the words themselves want of imputing a slanderous meaning, with an innuendo, that they did mean a slanderous charge, stating it. If the case is tested by these rules, which are founded both in law and common sense, we think, that with the averment before mentioned, the jury were well warranted from the words themselves, in concurring with the plaintiff, that the defendant intended to impute to him the crime of passing counterfeit money. In fact, there needed no introductory matter hut to show, that the plaintiff was meant by the description *“*our former senatoc,” with an averment that he was the person meant. All the words taken together well warranted the *innuendo.*Candor requires us to say, that the declaration, when it was before us heretofore, was not supported on these grounds, but on other and perhaps mistaken ones. We are therefore of opinion, that the judgment should not be arrested.

In actions of slander, the *quantum*of malice is material in estimating the damages; and to establish that, e*171vidence is admissible of words spoken by the defendant, not declared on; but the jury should be instructed as to the purpose for which the evidence is introduced.

*170As to the motion for a new trial, we see no grounds to grant one. The defendant’s argument, that the speaking of other malicious words is admissible only in cases, where the fact of malice is doubtful, and should not be admitted where the words themselves import malice, *171or where malice is admitted, is predicated on the supposition that there are no degrees of malice; or if there are, that its quantum is immaterial; that in this action any malice, the least, fills the measure. We think the argument unsound, and that there are degrees of malice, and that in all vindictive actions, the degree of criminality of the defendant, as well as the injury sustained by the plaintiff, enter into and form a part of the damages. Our nature and feelings require it j and it will be the rule with jurors, oven if in theory the law forbids it. But we do not believe it does. As to the court below informing the jury, for what purpose such evidence is given, and that the damages should be given only for the words sued for, aggravated to be sure by such other evidence of malignity as is before spoken of, wo presume that the court did its duty ; as upon the record it does not appear, that it did not.

Per Curiam. — Judgment affirmed.