#### SAMUEL P. JOHNSTON *vs.*JOSEPH LANCE.

If the truth of the charges made in a libel, when the libeller has been prosecuted for it, will justify him in bringing an action for malicious prosecution, the charges ought to be proved to be strictly true by plain and full evidence.

Where one repeats an oral slander and gives the name of his informant, he is justified or not, according to the *quo animo*the charge is repeated and propagated.

In the case of a written libel, the mention of the name of the author, or the general rumor, of the libellous matter, will not excuse or justify the publication of such, even if the author or the rumor be distinctly proved.

The cases of *Hampton*v. *Wilson,*4 Dev. 468, *McBrayer*v. *Hill,*4 Ired. 146, and *State*v. *While, 7*Ired. *180,*cited and approved.

Appeal from tbe Superior Court of Law of Buncombe County, at the Special Term in June 1846, his Honor Judge Battle presiding.

This was an action on the case for a malicious prosecution. Pleas, general issue and justification. The plaintiff, in support of his action, introduced a State’s Warrant, taken out against him by the defendant, and charging him with publishing a libel against the defendant, under which he was arrested and detained in “custody about thirty-five hours, when he was taken before a magistrate, and, upon examination, was discharged. The defendant *then*in his defence proved, that the plaintiff published the paper writing, of which the following is a copy, “notice. To all not only the people fif this State and County but to the whole Union if there is any yet in the dark, though I dont even think that there is any in these regions but nows as much about the gentleman as I do but for the benefit of others I hereby certify that one Jo Lance one of the beings of that State and County is a Iyer and if the boy wants it I can do as I have done before I can prove it I dont apprehend that this will hurt *451the gentleman’s feelings for I heard Mr. W. H. F. tell him to his face that he had swore a lye and stole a hog and he could prove it from which the said Lance had like to rode Ball to death for a writ which he obtained and Mr. W. H. F. was bound to cort and I am told since that one glass of apple jack cured the wound and I recon that it is true for I saw the gentlemen drink friends soil'this should tech the feelings and the gentlemen and he wants to reach me he can ride ball again and look below and find my name S. P. Johnston Look for a shoat from Bets at a broken leg but dont forget |o mind seling milk and watter to J. R. S. at ten cents per lb.”

The plaintiff then undertook *to*prove that the charges-eontained in the alleged libel were true ; and for this-purpose he called upon several witnesses, who testified that the defendant had the character of being a common liar. He then called .William H. Fu-lton (the person, whom he alleged to be alluded to in the paper writing under the initials W. H. F.) who testified that he had, sometime before the publication of the paper, charged the defendant to his face with having sworn to a lie and stolen a hog, that the defendant had sued him therefor, and that, while the suit was pending, he and the defendant had agreed to settle the matter and be friends, and that they, at the instance of a mutual friend, took a drink together and parted, as he supposed, friendly ; but the defendant afterwards refused to stand to the agreement ;• but how their suit was ultimately disposed of was not shewn. The plaintiff then called upon Mr. Shuford (whom he alleged was alluded to also in the publication by tbe initials- of bis name,) who testified* that the defendant brought some butter to his Store for sale, that he-proposed to buy it, and, in looking at it with that view, found that it had a large quantity of milk and water in it. He however told the defendant he would take it, after he could have the milk and water separated from-the butter, to which the defendant assented, and he then *452bought upon those terms. The plaintiff insisted, that he had proved the truth of all the charges contained in the alleged libel; that the defendant, therefore, had no probable cause for the prosecution^ that it was malicious, and he had a right of action against him.

The defendant contended, that the plaintiff was bound to prove, not only that he, the defendant,.had been charged. with swearing to a lie and with stealing, a hog, but that he was actually guilty of those offences. He contended further, that the evidence introduced, if believed^did not establish the charges of his having compromised his suit with Fulton aver a drink of liquor, and of having sold milk and water for butter.

The Court instructed the jury, that it was not necessary for the plaintiff to prove the truth of the charges, that the defendant had sworn to a lie and stolen a hog, but only that, he had been charged, to. his face with those offences by W. H. F. and that, if the plaintiff’s testimony were believed, he had proved substantially all the allegations contained in his publication. The jury returned a verdict for the plaintiff', upon which he had a judgment,, and the defendant appealed..

*j&dney,*for the plaintiff..

*N. W. Woodjin,*for the defendant..

Ruffin, C. J..

The publication, made by the plaintiff concerning the defendant, is so obviously and grossly defamatory, that it must be taken upon its face to have been made with the intent to injure the character of the defendant, and, therefore, that it was, in. a legal sense, malicious and libellous. The defendant had unquestionably,.then, probable cause for instituting, a prosecution for, the libel — at least, *'prima facie.*We are not prepared to say at present, that even proof in this action of the defendant’s guilt of the matters, charged on him. in the libel, would deprive him of the bar to the action arising *453out of the probable cause the defendant had for supposing the plaintiff liable to indictment for that malicious publication. For, although when indicted, the plaintiff could have given the truth of his charges in evidence, and. thereupon would have been entitled to an acquittal, yet he was *prima facie*guilty of libelling a citizen, and therefore might justly, perhaps, be called on for his proof, and ought not to have his action against one for so doing. "We entertain serious doubts, whether the statute, which allows the truth to be given in evidence upon an indictment for a libel, can be carried further and to the extent of giving to the defendant in the indictment an action against the prosecutor for malicious prosecution, because the libel was true: for his acquittal arises upon evidence, which he is compelled to give on his part, in order to extricate himself from a state of probable and apparent guilt. And it would seem to be almost impossible to persuade a jury, that a person, libelled as this defendant was, preferred a prosecution against his defamer' from motives of malice merely, instead of a desire that the person should be punished for the malicious publication complained of by him: and, without such malice by the prosecutor, this action ought not to have been sustained, even though there had not been probable cause. But the point was not made in this case, nor argued before us, nor, indeed, has it been much considered by us ; and, as we think it deserves to be well discussed and considered before a decision of it either way, we do not think proper now to lay down any rule in respect tcTrt, since, in our opinion, this case may be determined and a *venire de novo*must be awarded upon other points, on which there is no doubt.

If the truth of the charges made in a libel will not only justify the publication, when the author is tried for it, but also will give him an action for malicious prosecution, it is plain, that, to have this last effect, the charges ought to be proved to be strictly'true, by plain and *454full evidence. This plaintiff avowed in this publication itself the purpose of provoking the defendant to sue or prosecute him for it. He expressly invited the very proceeding of which he now complains, as, indeed, every libeller impliedly does. Then, he ought to be prepared to make good every word he thus utters to gratify his malevolence, and is entitled to no charitable construction of his language, nor liberal extension of his evidence beyond its necessary import. For a libeller is not a public benefactor, but is among the *most*licentious, malignant and mischievous of our race, and therefore can ask no indulgence, to which he is not entitled *stricti juris.*

The plaintiff’s proof in this case not only did not sustain his charges strictly, nor even substantially, but, in the opinion of the Court, signally failed in respect to each and every one of them.

The first is: “I hereby certify that Jo: Lance is a liar. And if the boy wants it, I can do as I have done before — I can prove it-” This is a direct and positive averment that Lance *is*a liar; and it is perfectly plain, that its truth is not sustained by evidence, that he had the general character of being a liar. If Lance had brought an action for the libel, a plea of such a general reputation would not justify the charge, though the fact might mitigate the damages : for the charge affirms as a positive fact, that he was guilty of the despicable vice of lying, while the proof is, *not*of *the fact,*but that people suppose him to be thus guilty. If one accuse another of stealing a horse, the plea of a common rumour, that the person is a horse-thief, will not amount to a justification in an action for the libel, more than evidence of such a rumour would establish the party’s guilt upon an indictment for the theft. Reputation is in no case evidence that one is guilty of a specific offence; and that is the charge here.

The next imputation on the defendant is : “I heard Mr. W. H. F. toll him to his face, that he had sworn a *455lie, and stole a hog, and he could prove it: for which the said Lance had like to have rode Ball to death for a writ, which he obtained, and Mr. W. H. F. was bound to Cort; and I was told since, that one, glass of apple-jack cured the wound, and I reckon it was true, for I saw the gentlemen drink friends.” Here are two libellous imputations against the defendant. The one, that the plaintiff had heard some person not named, .but designated only by the initials, “ W. H. F.” accuse the defendant to his face of the crimes of perjury and the other that the defendant either sued or prosecuted “ W. II. F.” therefor, and then, as the plaintiff had heard from some one not named, the defendant had compounded the case over a glass of liquor without the accusation being retracted or compensated in any other way. Neither of those charges is sustained by the .evidence, as we apprehend. The latter, plainly, was not. According to the libel, a glass of apple-jack cured the wound, so that the defendant was pacified by a drink. But Fulton’s testimony did not prove any such thing. He says, that he and the defendant “agreed to settle the matter and be friends, and that, at the instance of mutual friends, they took a drink together and parted friendly, but that afterwards the defendant refused to stand to the agreement ” Now, it is plain that, according to this testimony, the liquor did not cure the wound, and induce the defendant to dismiss his suit against Fulton. In fact it was not compounded at all, and, as far as appears, is now pending. Fulton says, “ they agreed to settle the matterbut upon what terms was not specified, or, at least, he mentions none. The natural inference is, that as the parties were to be “ friends,” the settlement was expected by the defendant to be made on such terms as became that relation — which, certainly, could not be, that he should dismiss his suit and pay the costs, and lie quietly down under the unretracted charge by his “ friend” of perjux’y and theft. That could *456be no “ settlement” of the matter,” but only a downright abandonment of all right to redress. That was not what Lance intended, and hence he did not and would not “ settle” the suit, because, when the parties came to talk about the terms, they could not agree. The drink of spirits was therefore not the price of the slander upon him, and of his suit; but it turned out, that while the parties were in treaty for a compromise (which was never closed) they drank together, at the instance of friends who wished to promote peace between them. That transaction was, therefore, grossly perverted in the plaintiff’s publication, according to his own evidence in support of it.

The other and more serious branch of the charge under consideration was equally destitute of support in the evidence. That consisted of the testimony of William H. Fulton, that, before the publication, he had charged the defendant to his face with having sworn to a lie and stolen a hog ; and that the defendant sued him for it, and that thereafter the transactions with a view to a compromise occurred, which have been already stated. The deficiency in the proof is, that there is none whatever to the truth of the charges thus made by *Faltón on*Lance, that is to say, that, in fact, the latter did swear to a lie and did steal a hog, as we unanimously hold, there ought to have been. It has long been settled, that, even in cases of oral charges, the repeater, who does not at the same time name his author, takes the assertion upon himself and can only justify by proving the truth of the accusation. *Earl of Northampton’s case,*12 Rep. 132. Within that rule the plaintiff was bound to give evidence of the guilt of the defendant; for he does not mention the name of the person from whom he heard the charge, but designates him by initial letters only as “Mr. W. II. F.” That did not give the defendant a certain cause of action against any other person in particular, and therefore, according to the case cited, an action would lie against the repeater

*457himself, unless he established the truth of the charge-. But, if it were admitted, that “ W. H. F.” might, under the circumstances, be understood to be *“*William H. Fulton,” yet the plaintiff would not be exonerated from the burden of proving the charge to-be true. Where the slander is oral, and the repeater gives -the name of the person from whom he heard it, the Court strongly intimated^ the opinion in *Hampton*v. *Wilson,*4 Dev. 468, and *McBryer*v. *Hill,*4 Ire. 136, that the justification depended upon the *quo animo*the charge is repeated andpropagated; and with"that we are upon longer reflection entirely satisfied. For, if one circulates a slander ’with the design to cause it *to be believed*either upon his own credit and character or those of his author, that the person implicated is guilty of the fast charged, he really and truly, though covertly, endorses the charge and should bear the-burden of having affirmed its truth. He meant, when he repeated the slander, that *thereby*the party’s character should be injured. How? By,inducing the world to think, that as such a man made the charge,, and he, the repeater, gives it currency, it is true. That is the substance of what one intends ánd do'es, who propagates a slander *malo animo;*that is, with the purpose of detracting from his-neighbor’s character and standing in society;- and therefore he ought to be held bound to prove the charge as he- meant it should be understood. If that be so where the slander is oral, much more -is it true, when it is printed or written ; because the ill feeling and evil purpose of the propagator are more distinctly exhibited,, and the injury done to the other party is more extensive and durable. The cases of *Lewis*v. *Walton,*and *Dale*v. *Lyon,*which were cited in *Hampton*v. *Wilson,*hold clearly, that a justification by giving the author is inadmissible altogether in actions for' libels; and the familiar case of the liability of the printer of a newspaper for a publication therein of another person, under the author’s name, is conclusive upon the point. There have also *458been several cases since, both in England and this country, to the same effect. The present is the first case in this State, in which the point has arisen directly. But the conclusion necessarily follows from what has been held and said in the other cases before mentioned, and, particularly, that of *State*v. *White,*at the recent June Term of the Court at Raleigh, and not yet reported. In that case we held, that upon air indictment for a libel, the publication of a charge as a rumor was not justified by proof of the rumor, but required proof of the charge itself; and it was distinctly stated by my brother Nash, that, even if the author had been given, it would have made no difference, unless the defendant had shewn that he made the publication for a *good end*and without the evil one of defaming the prosecutor. Now, this plaintiff did not ask to be excused upon a good motive, that actuated him, but insisted onty, that upon strict law he was justified by the truth. The truth of what, is it to be understood *1*.He says, it is-, that Fulton told Lance, he was forsworn and a thief. But was that all he meant, the readers of his piece to believe from it *1*Certainly not. Courts must read like the world does, and understand charges in the same sense in which other men do. No person can read this piece without seeing, that the plaintiff intended to injure the defendant’s character as far as he could, and to have it belie'ved, that he was guilty. It is to that end, that he says he heard the defendant charged with those crimes to his face, and that, after suing for the scandal, the defendant gave up the suit for the pitiful pretence of a drink of friendship, without any reparation by damages or acknowledgment of injury and pardon asked. Is it not clear, the plaintiff supposed and intended that the world would infer from such conduct of the defendant, that he had no character to vindicate and was afraid to bring his suit to trial from a consciousness of guilt; in fine, that the public would infer that the defendant was really guilty ? He ought therefore to make good the *459charge in tbe sense in which he intended to make it which is, by proving the acts charged on the defendant.

The last charge is the direct one ó'f “ selling milk and water at 10 cents per poundand the evidence was an offer to sell butter, from which the milk and water had not been perfectly separated. Upon the most favorable presumptions for libellers — to which, indeed, they are not entitled — evidence of an intention to do an act does not prove a charge of the act done. Besides a man may innocently take a parcel of butter to market, which may not have been properly beaten up by thé dairy woman, while few would suppose, that he could fairly sell milk and water at the price stated. Things are not to be taken in their worst sense against a person accused, but his innocence rather is to be assumed until the contrary be shewn ; and libellers ought not to be encouraged to misconstrue and misrepresent the conduct of others by allowing them boldly to make specific'charges, and then support them by loose evidence of something that was not entirely creditable to the other party. They ought to confine themselves in the gratification of their bad passions, to making such charges only, as they can fully and strictly prove.

Upon the whole, it appears from its contents, that this was a publication of as pure spite, as one almost ever sees; and, as we think, it was not supported by proof in any part of its substance ; and, consequently, this action was groundless.

Per Curiam. Judgment reversed and *venire de*novo,