#### Ephraim Smith vs. William Youmans, Sen.

Tried before his Honor Judge Richardson, Coosawhatchie, Fall Term, 1835.

This was an action of slander, for words charging the plaintiff with perjury. The declaration contained several counts, in all of which, the words charged were laid to have been spoken in reference to the testimony given by plaintiff, in an action between George Goettie and the present defendant, whioh was tided at Coosawhatchie, at spring term, 1834. This action was commenced in January, 1835. Plea, general issue. An action for a similar slander was pending between the same plaintiff and Levi Youmans; and by consent of counsel, both actions were committed to the same jury, and tried together.

The evidence was as follows:—

Record of the action between George Goettie and William You. mans, tried at Coosawhatchie, spring term, 1834.

*Jacob*Bowers. Heard of the suit between Goettie and Youmans,-Ephraim Smith was a witness in that action. Smith and Youmans were brethren of the same church. There was- a difference between them. After the decision in favor of Goettie, the church concluded it was a matter worthy of their consideration, with a view to the excommunication of defendant. Defendant, who was a, deacon, resigned his office. At a church meeting called upon, the subject, witness asked defendant, William Youmans, if he could be in full fellowship with the brethren. He paused, and then said he could not. Witness asked liis reason. He answered, he could not hold full fellowship with Ephraim Smith; because he had just reason to believe that Smith bad perjured, or forsworn, himself, to his injury. Witness asked, when? Defendant replied, in the case between himself and Georg® Goettie. At anote meeting of the church, tte Wife» Xouwans *89bad been excommunicated, Levi Youmans asked the church, as matter of advice, if they thought it right to hold a man in fellowship; whom they thought had perjured himself to his certain knowledge; - Witness asked him who it was? He answered Ephraim Smith. Witness asked, when? and he stated twice he had done it in this court. Once between Howell and Goettie; He specified, that Smith said he' had got up and ran. This was the perjury. Does not recollect the particulars. This was said in the spring of 1834. There had been a difficulty between Youmans and Smith, before the trial of Goettie and Youmans. William ’'umans told witness, Smith had volunteered to become a Witness for Goettie; and said he believed Goettie had given him a very fine cloak, as a bribe. At the investigation, de-' fendant impeached some one, and Smith took it up. After William Youmans had been turned out, as deacon; a month after, at defendant’s, William Youmans’ house, witness asked hita hdw his feelings were towards Smith. He said they were the same; and all the courts and juries could not make him think otherwise. August, 1834.

Cross-examined. — These investigations took place in public, and the charges were in the course of regular examinations in church. As to the Charge about the cloak, witness sought the conversation, as pastor of the church, and a friend of both parties, with a view to heal the difference, or if there was any thing wrong, to have it set right; as to the church. The conversation was private and confidential. The other conversation after the trial, in defendant’s ho'use, was of the same character, private and confidential, and sought for by witness. Witness is pastor of the church, of which the plaintiff and defendants were all members. It is a Baptist church.

As regards Levi Youmans, he asked the advice of the church, and spoke, as above related, of the plaintiff. According to the weight of the matter, an adherent of the church ought to state his objections to the members. Witness did not think these objections ought to have been stated, but believes it was done through ignorance, by Levi You-mans. It was after William Youmans had been excommunicated; Levi Youmans spoke as related, and it was at the meeting of the church.

Witness spoke with William Youmans, upon hearing that he had made such a report, and he stated accordingly, about the cloak. William Youmans did not urge, that he should be brought before the church. Supposes it was two months after the trial, &c.

Henry Hall. Heard William Youmans say that Ephraim Smith had sworn false against him. It was some time after the trial between Goettie and Youmans — At church — Same time spoken of by Bowers. Levi Youmans asked of the church, if it was right to hold fellowship with a man who had sworn false, as he said Smith had done once or twice, in the case of Goettie *ads.*the State, &c; Many persons were present.

Cross-examined. — Concurs with Bowers, ás to the church meeting.

Royal Roberts. Was present at the church meeting, and confirms Bowers’ statements.

Abraham Ruth. Heard William Youmans say, that Smith could not be an honest man; for he was a perjured man, and a perjured mar* *90could not be an honest man. Witness was asking for recruits, an<f he wished for every honest man, when William Youmans said this to him. It was in the beginning of 1833, and he was getting up volunteers under the act of the Legislature. Witness stopped defendant at once, and said he did not believe it. This was before the trial between Goettie and Youmans, Plaintiff is an honest man. William You,' mans is morose.

George Goettie. Was the plaintiff in the suit against Youmans, He summoned Smith, who was-not a volunteer witness. Witness was in church when William Youmans spoke. Witness never gave Smith a bribe. He is a good man.

The plaintiff gave in evidence, an affidavit made by William You-mans, charging Smith with perjury, and sworn to in February, 1835. Also, the record of an indictment founded on that affidavit, upon which, both William and Levi Youmans were examined as witnesses before the grand jury, and which was returned *“*true bill.”

Here the plaintiff closed; and the defendants called no witnesses.

I charged the jury, that to entitle the plaintiff to recover — the slander must be malicious; and that it was not so, if spoken in confidence. Nor would the action lie, if the words were spoken in the performance of a duty, unless they were malicious. As to the affidavit to indict, it would not, of itself, sustain an action for slander.

The jury found for the plaintiff in both cases; in the action against William Youmans, $500; and in that against Levi Youmans, $5.

J. S. RICHARDSON,, *Presiding Judge.*

*Grounds of Appeal.*

1. That the words charged, were proved to have been spoken under the following circumstances, *only, to*wit: In one instance, at a church meeting, of a church, of which the plaintiff and defendant were, both of them, members, at which the plaintiff was present, and upon an investigation made by the church, which was neither instigated, nor sought for by the defendant, but was instituted by the pastor and officers, for the purposes of church discipline, and were not spoken by the defendant, until called upon, as a member, by the. church: and in another instance, or instances, confidentially, and privately, to the pastor of the church, when the defendant was called upon by him, as pastor, and requested to converse on the subject. And it is submitted, that no action will lie for words spoken under such circumstances.

2. That there was not a tittle of evidence, that these words, or any of them, were spoken by the defendant, at any other time, or under any other circumstances, than those stated in the preceding ground,- and that the jury have no authority, in law, upon the mere suggestion of counsel, and without evidence, to render a verdict founded upon the surmise, that the words were spoken at other times, or under other circumstances.

3. That the verdict is, in every respect, without evidence, against evidence, and contrary to law.

COLCOCK. and BAILEY, *Defendants Attorneys.*

*91Mr. Justice Eaele

delivered the opinion of the Court.

From the speaking of slanderous words, that are actionable in themselves, the law implies that they are false, and that they are malicious. It is for the defendant to prove them true; or to rebut the presumption of malice, by shewing that they were spoken on such an occasion, or under such circumstances, as to excuse the speaking, and render them innocent; as that they were spoken in the regular course of a judicial proceeding, by a party, a witness, or counsel; or in the regular course of religious discipline with the plaintiff, being of the same church; or in confidence to a person interested, as to the character of a servant, or of a person in trade; and so of other instances that might be put. There may indeed be cases, where the speaking occurs in the performance of a legal duty, which the defendant is bound to perform, as where he is called on, as a witness, to testify in a court justice, or where he is acting as judge, or party, in which the occasion not only rebuts the presumption of malice, but furnishes a bar to the action. In general, however, where it appears on the plaintiff’s shewing, or on evidence produced by the defendant, that the publication was made, on such an occasion, or under such circumstances, as have been specified, and that the words were spoken, *bona fide,*in the discharge of some legal or moral duty, rendered necessary by the exigencies of society, the occasion affords *aprima fa-cie*presumption, to rebut the inference of malice, and the plaintiff would fail without further proof. See Stark. Evid. 4, p. -863, and the cases there cited. Malice is, however, the essential ingredient which entitles the plaintiff to recover; and whatever may be the occasion of the speaking, except, perhaps, that of being in the course of a trial in a court of justice, by a judge or witness, it is competent for the plaintiff to reply in evidence, and to shew express malice; to prove that the words were not spoken, *bona fide,*but that the occasion was used, only as a pretext for venting the defendant’s malice. The cir*cumstances*themselves, the manner of speaking, the temper manifested, without extrinsic evidence, may be enough to indicate malice, and to deprive the defendant of the benefit he might have derived from the occasion of the speaking. But this is always a question for the jury, whether the words spoken, if actionable in themselves, were spoken maliciously, and with a defamatory intention. It seems to this court, that the case before us, was submitted to the jury in conformity with these principles, which we have supposed to be as well settled, as those of any department of the law. It may well be doubted, on the report of the judge, whether the case of the defendant comes within *92any of the occasions, which are held to rebut the presumption of malice, even *prima facie.*There was no proceeding before the church in the nature of religious discipline, except once, when the charge was made. At another time, the witness, Bowers, who was the pastor, says he spoke with Youmans “ *upon hearing he had made such a report,”*when he said he believed “ Goettie had given the plaintiff a very fine cloak as a bribe.” If the verdict of the jury needed other support, it might be found in the evidence of Abram Ruth, who proved the speaking of similar words on another occasion, than that before the church; and in the affidavit to commence a prosecution for perjury, which was any thing but a confidential communication, or one made in the discharge of his duty, as a member of the church. A,nd although this last would not of itself sustain the ‘action, without proof of other words, it was competent, and we think sufficient evidence of the malice, which prompted the speaking of these words.

De Treville and Cole, *Plaintiff’s Attorneys.*

Cglcock and Baxley, *Defendant’s Attorneys.*

The motion is refused.

B. J. EARLE.

*Note.*— The cases on this subject are collected, and well arranged in a note to Fowler and Wife vs. Homer, 3 Camp. Rep. 294.

We concur,

A. P. BUTLER,

JNO. B. O’NEALL,

WM, HARPER,

JOSIAH J. EVANS,

HENRY W. DESAUS SURE,

J. JOHNSTON,

Gaktt, J. absent.