#### ROSANNAH BRIGGS *vs.*CHARLES BYRD.

A person is not answerable, in an action of slander, for any tiling he says i& honestly preferring, before a judicial officer, complaints against an individual for offences alleged to have been committed by him; and *prima facie*every application is to be deemed honest and to have been made upon good motives, until the contrary be shown.

In such cases, whether the party complaining acted *bom fide*or from a wick-, ed and malicious mind is always an open question. The opposite party» therefore, is at liberty to prove malice, qither by express evidence, or by attending or collateral circumstances.

In an action of slander, evidence of the sense, in which the words were understood by the hearers, must be of the sense in which they were understood ^ *at the time they were uttered.*

Although a juror may sit on the trial, against whom there was good cause of challenge, yet the party, by not having made the objection in time, waived it.

Appeal from the Superior Court of Law of Yancy county, Spring Term, 1851, his Honor Judge Settle presiding.

*378This is an action for words spoken, with the intent to charge the plaintiff with having stolen biscuits. Plea not guilty. The declaration stated, that a report had been in circulation, that the plaintiff had stolen some biscuit belonging to one Elisha Iiunicutt, and *that the*defendant, speak-jng of the plaintiff, and of the said report, said-, in the heari ing of diVeis persons, of and concerning the plaintiff: “ I will make the biscuits roar under the cloak before Saturday pight,” with inuendoes and averments, applying the words to the plaintiff, and that the defendant meant thereby, and ■ was understood by the hearers, to charge her with feloni-ously stealing the biscuits.

On the trial; two witnesses deposed, that on a certain day fhe defendant and the plaintiff’s father had a dispute about a line and -fence between them, and the plaintiff passed by fhe defendant and the witnesses, and the defendant said, if they do not mind, I will make the buiscuits roar under the cloak before Saturday night.” But each of the witnesses said, he did not understand what the defendant meant. Another witness, L. Phillips, deposed, that he was a justice of the peac'é, and that on the day spoken of by the other witnesses, the defendant asked him, what he would think, if he were to see a woman take á parcel of biscuits, and slip them under her cloak; and he answered, that he would think it was stealing; and thereupon the defendant told him he wanted a State’s warrant, and said that on that day -he was talking with the other two witnesses, “ as a certain woman passed by, and he said that he Would make the bis. ©uit roar before Saturday night, and she looked worse than any one he had over seen.” The witness further deposed, that he had previously heard of a report, that the plaintiff ■had stolen biscuits at Hunicutt’s, and he understood the defendant as alluding to the plaintiff, and. that he intended ito charge her with stealing those biscuits; that he. the wit. ■ness, declined issuing the warrant at that time-, and promised *379to attend to it at some other time, but the defendant made no further application-

The counsel for the defendant insisted, that the action would not lie, because the words were not understood by the two first witnesses in the sense imputed to them in the declaration; and because ihe communication to Phillips wes for the purpose of obtaining a warrant for the felony, and was, therefore, privileged. The counsel for the plaintiff insisted, on the other hand, that the communication to the magistrate was not privileged; and further, that, although the two first witnesses did not at the time understand the defendant's allusion, the action will lay, if they af-lerwards heard the repot t, and then understood the defendant’s allusion, or if they believed the defendant really meant to charge the plaintiff with larceny; and other persons, besides those two witnesses, were present, who might, or might not have understood the allusion.

The Court instructed the jury, if they believed the ap=-plication to the magistrate Was *bona fide*for the purpose of obtaining a State’s warrant, and tor no other purpose, the defendant wa's not answerable for the words then spoken; but that, if he had any other purpose, then the defendant was answerable in this action '; and that, for the purpose of arriving at the defendant’s intention, the jury should consider all 'the circumstances, including the facts, if the jury believed the witness, that the defendant did not at the time insist on then having a warrant, nor apply fof one after-wards. The presiding Judge did not express any opinion on the other points insisted on, in the argument of the plaintiffs counsel to ihe jury, and was not requested to give ■any instructions on them. The jury found for the defendant, and the counsel for the plaintiff moved for a *venire de novo,*upon the ground of error in the instructions as to the words spoken to the witness Phillips, and in his Honor’s not giving any instruction on the other two questions made in the. argument; and also, because one of the jurors on *380this trial had been on a jury on a former trial of this case, and then concurred in a verdict for the defendant. The motion was refused, and judgment rendered for the defendant ; and the plaintiff’ appealed.

*N. W. Woodjin*for the plaintiff.

*Gaither*for the defendant.

Ruffin, C. J.

The privilege of charging persons with offences in a judicial proceeding, or with a view to one, is given by the'law, because the public interests require complaints to be made against offenders, or those really suspected of being such, and the complaints cannot be made without the use of such words, as would, if spoken on a different occasion, be slanderous. Hence, a person is not answerable for anything he says, in honestly preferring a complaint before a justice of the peace; *and, prima facie, eve*ry application is to be deemed honest, and to have been preferred upon good motives, until the contrary be shown, because it is a_ duty to bring offenders to justice. That, we believe, is all that is meant by the phrase, “ privileged communication;'’' nameíy, that the words are uttered in a legal proceeding, or on some other occasion of apparent duty, which *prima facie*imports that the party was actuated by a sense of duty, and not by the malice, which is generally to be implied from speaking words imputing a .crime to another. *Cackyane*v *Hodgkison,*6 Car. & P. 543. *Johnson*v *Evans,*3 Esp. 32. It is always open, however, to,the opposite side to prove malice, either by express evidence, or by circumstances attending the accusation, or by others that are collateral; as, for example, that the accuser had a particular grudge against the accused, and knew the accusation to be unfounded. It is, therefore, the question in all such cases, whether the party acted *ixona fide*in making the complaint, or from a wicked and malicious mind. It follows, that the instructions to the jury were as strong *381as they could possibly be, with any regard to the rights, of the defendant — being, that if he had any other purpose beside that of *bona fide,*in instituting a prosecution against the plaintiff, she would be entitled to recover; and allowing the plaintiff the benefit of the intrinsic, as well-as all other, evidence of some malicious purpose. It is apparent, therefore, that the plaintiff has no ground to complain of the instruction.

There are several answers to the other exception. The silence of the Judge is not error, unless he be moved for a proper instruction. Here the party chose to take the chances before the jury, without the help of the Court on either of the two points. But, if instructions had been asked, they ought to have been refused. The declaration is, that the words — not importing, *per se,*a charge of larceny by the plaintiff — were meant by the defendant to be so understood by those to whom they were spoken, and were then so understood by them. Hence, the Court held, in this case, on a former occasion, that, the plaintiii might giye evidence as to the sense in which the hearers understood them. But that must, of necessity, be referred to the time of speaking the words ; else, it might happen, that the words would be understood' differently, at different times,- and be actionable or not, as the witnesses might apprehend their sense, more ov less correctly from time to time. Besides, there was no evidence, that the.report subsequently reached the two witnesses, or that it imparted to them a better understanding of the' defendant’s meaning • and the Court ought not to submit a point to the jury, on which there is no evidence. This observation is equally applicable to the other point, as it did not appear that any other person was present when the defendant spoke the words proved by the two witnesses, or that such person, if present, understood the allusion to be to the plaintiff.

There was good cause of challenge to' the juror. But that does not vitiate the trial; for the juror might have *382conceived, that he was bound to serve, and by not making-the objection, the party waved it.

Per Curiam, Judgment affirmed,'