June, 1829.

#### Philip Brittain v. James Allen.

From Buncombe.

In a declaration for slander, the innuendo must contain a rational inference from the colloquium, or other introductory matter.

The colloquium and introductory matter are put on the record, that the Court may see if the Jury have made a reasonable construction of the words.

The usual and formal mode of pleading is, first to set forth the colloquium — then the words, drawing a slanderous meaning from them by a proper innuendo.

But a declaration, in which the words spoken and the innuendo were first set forth — and then a fact necessary to warrant the innuendo, was held sufficient.

Other words besides those charged as slanderous, may be proved on the trial, as evidence of the malicious intent of the Defendant, and this, as well where they are actionable, as where they are not,

general hostility between a Juror and a party, without any connexion with the action to be tried, is good cause of challenge.

But the fact that a Juror and one of the parties are Stockholders in an incorporated Company, as a Turnpike Company', is not good cause of challenge.

The Plaintiff declared against the Defendant in case for slander, as follows :

“Philip Brittain complains of James Allen, in custody', &c. of a plea of trespass on the case, Etc. Tor that whereas the said Philip now is a just, honest and correct man and citizen of this State, and as such hath always, &c. and until the committing of the several grievances by the said Jumes, as hereinafter mentioned, was always reputed, &c. by all his neighbors, &c. to whom he was in any wise known, to be, &c. And whereas, also, the said Philip hath never been guilty, nor until the committing of the several grievances by the said James, &c. ever been suspected to have been guilty of the infamous crime of passing counterfeit money, hereinafter mentioned to have been charged upon, and imputed to the said Philip, by means of which, he. he the said Philip, before the committing of the said grievances by the said Defendant, had deservedly obtained, &c. Yet the said Defendant, well knowing, &c. and greatly envying, &c. and contriving, &c. to injure the said Philip in his good name, he. and to bring him into public scandal, &c. and also cause him to be suspected by, ike, to be guilty of passing counterfeit money, and that he had subjected himself to the psfms, &c. and to harass and ruin the said, Philip, hereto; *121tore, to wit, on, &c. at, &.c. then and there in the presence, &c. falsely and maliciously spoke and published of, and concerning the said Philip, these false, scandalous, malicious and defamatory words, to wit: “ Our former Senator” (meaning thereby the said Philip, he the said Philip having been before that time a Senator in the Legis. ¡ature of this State,) “ used vigilance and diligence in prosecuting Welsh for passing counterfeit monej',” (meaning thereby one William Welsh, who was guilty of passing counterfeit money ) “ in order to prevent suspicion from failing upon himself(meaning thereby the said Philip;) "he (meaning the said Philip) procured Roadman,” (meaning one William 0. Roadman, who prosecuted the aforesaid William Welsh for passing counterfeit money,) “ to prosecute him,” (meaning the aforesaid William Welsh,) “ to extricate himself;” (meaning the said Philip,) and that "he”(meaning the said Philip,) “ was as deep in the mud, as Welsh” (meaning the aforesaid William Welsh) “ was in the mire,” meaning and intending thereby, tliat the said William Welsh was guilty of (he scandalous and felonious crime of passing counterfeit money, and that he the said Philip was also guilty of the scandalous and felonious offence of passing counterfeit money. By means of the committing of which said several grievances by the said James as aforesaid, he the said Philip hath been and is greatly injured in his said good name, 8cc. and brought into public scandal, &c. with and among his neighbors, to whom the falsity of the said charge was unknown, and who thence have believed him to be guilty of the infamous and felonious offence of passing counterfeit money. Wherefore the said Philip saith, &c.”

The issue was on the plea of not guilty, and was tried before his honor Judge Mangum, on the last circuit.

In making up the Jury, the Defendant having exhausted his peremptory challenges, challenged a Juror for cause, assigning for cause, 1st. That the Juror and the Plaintiff were Stockholders in the Buncombe Turnpike Company. 2d, That there had been hostility between the Juror and the Defendant.

The last assignment was general, without reference to any opinion formed or expressed by the Juror, touching this suit. The challenge was overruled by the Judge, and the Juror was sworn.

After proving the speaking of the words charged in the declaration, the Plaintiff offered evidence of oilier words spoken by the Defendant, both before and after the commencement of the action. This testimony was *122objected to by the Defendant, but was admitted by the J edge.

jjjs Honor left it to the jury to say whether the Defendant, by the words set forth in the declaration, falsely and maliciously intended to charge the Plaintiff with passing counterfeit money, and told them if they should find that he did, they ought to return a verdict for the Plaintiff.

A verdict being returned accordingly, the Defendant appealed.

Gaston & Badger, for the Defendant,

moved in arrest of judgment, becau.se the words set forth in the declaration, did not of themselves import any defamatory charge upon the Plaintiff, and there was no allegation, averment, colloquium, or any other explanatory matter in the declaration, to which the words, or the innuendoes refer, to give them any actionable quality, or to point them to the Plaintiff.

If they should fail in this motion, they then moved for a new trial:—

1st. Because tiie Judge had erred in overruling the. challenge toa Juror, made by the Defendant on the ground of personal hostility.

3d. In receiving evidence of words spoken by the Defendant, before and after suit brought; such evidence if admissible at all, being only so to shew the quo animo, and not as a foundation for damages in themselves, which should have been distinctly explained by the Judge.

JDevereux, on the other side contended,

that the declaration was good, and cited Starkie on Slander 53 to 55, 380 to 383, 386 to 389, 295, 298 — Lindsey v. Smith, (7 John. Eep. 860) and Roberts v. Campdan, (9 East- 93.)

On the first ground for a new trial, he cited 3 BUt. Com. 363 — Rev. ch. 452, 3©2, 833.

On the second, Rcistell v. Mc({uister, (1 Camp. 49) and .Finnerhj v. Tipper, (2 Bo. 72) and protested against *123."rantin'* new trials for apparen t»f a J.i*-., oo a point which mi.y ' 'uaissic:- bj the charge list hr been deemed important in the Court below, and which may have been designedly left out of the case, because not excepted to.

Henderson, Chief Justice.

— The words charged to have been spoken, are not actionable of themselves, but may be made so by a colloquium, or by introductory matter, with an innuendo. The colloquium is the subject matter, in reference to w hich the words were spoken. What is commonly called the introduction, contains foreign or extrinsic facts, known to t’us boaters, and alluded to by the speaker, by which a slanderous character may be given to words ambiguous in themselves, or apparently harmless. The innuendo avers the meaning of the words as intended by the speaker, and as understood by the hearers. It must be warranted by the colloquium, or by' the introductory mailer; that is, it must be a rational inference, that they were so mount, and so understood. The colloquium and introductory m-Utee musi.be put upon the record ,• otherwise juries would be left at large to construe the Words as they pleased. They are required í.o be placed upon the record, that tlie jury may be kepi within the bounds of reason and common sense. For although they are triers of the facts, it is the, duty ami y oCnce of the Court to see, that their inter,mees are such is are reasonable and probable. Hence irrelevant «■ .¡¡¿neo iy withheld from them. Hence also in mutTr, tie wound, which the jury aflirm to be the cause of death, should be described by its breadth and depth, that the Court may see, not that it did occasion the death, for that, is the province of the jury to decide, but that it is probable that it did, which is the province of the Court. The words are, " our former Senator used vigilance and diligence in prosecuting Welsh for passing counterfeit money, in order to prevent suspicion from falling upon himself. He procured Road- *124 man to prosecute him, to extricate himself, and he was as deep in the mud as Welsh was in tiie mire,” with an innuendo, that the Defendant intended to impute, and did impute to him the crime of passing counterfeit money; and to support this innuendo, or to render it probable, there is an averment that the Plaintiff had been a Senator from the county : and another that Welsh had been guilty of passing counterfeit money, which supports the innuendo, that by saying, that the Plaintiff was as deep in the mud as Welsh was in the mire, he meant to impute to him the crime of passing counterfeit money. The jury by their verdict, have affirmed both the averments and innuendoes. It is therefore the same thing as if the Defendant had said in so many words, that the Plaintiff ivas guilty of passing counterfeit money. It is true, these averments are not found where, according to approved forms, they should be, that is, preceding the words alleged to have been spoken, but it is sufficient if they are found any where. I therefore think that the declaration is substantially good, and that the judgment should not be arrested. But there is a motion for a new trial for improperly overruling a challenge to a juror. And if the challenge was impro-peidy overruled, it is good cause for a new trial.

I do not think that there is any thing in the cause first assigned, viewing it either as a cause for a principal challenge, or one for favor. For from that alone, I do not think it is inferable, that the juror is not indifferent. I mean, that the Plaintiff and juror were both stockholders in a turnpike company. For those companies or associations spoken of in the books, which disqualify the members from serving as jurors, where another momber is a party, mean such associations as unite men much more intimately, than being stockholders in the same incorporated company. They are such associations as impose personal obligations on the members —obligation* *125arising from benevolence and g-od-wiil 'owards each other, not a mere partial union of funds for profit. The funds are united, but the individuals are entirely distinct. But it appears to me, that there is something in the second cause, to-wif, that there was hostility between the juror and the Defendant. For although the word had implies that the hostility had passed away, yet from the reasons assigned for overruling it, it is plain that it was considered that it still existed, and that the word had was used by mistake. It seems that the Judge disregarded all kinds of hostility but that which related to the particular suit then to be tried. I think that the law is otherwise. The juror should be perfectly impartial, and indifferent causes apparently very slight, are good causes of challenge, and that which is good cause for quashing the array, is good cause of challenge to the polls. I mention this, as most, at least many of the cases, are challenges to the array. If the Sheriff be liable to the distress of either party, or if he be his servant or counsellor, or if he has been god-father to a child of either of the parties, or either of them to his, or if an action which implies malice, as assault and battery, slander or the like, is depending between them, these all are causes of principal challenge. (Sac. ab. Jurors, F. 1.) From these cases, particularly the one which states a suit pending, which implies malice, it appears that general hostility, by which I mean, that which is not confined to the particular suit, is cause of challenge. From these causes, the law of itself implies a want of indifference, which the Defendant offered to show. I think he ought to to have been permitted to do so, and if he succeeded, that the juror should not have been sworn. For this cause, and for this cause only, there should be a new trial.

As to the other words which were given in evidence, I think it is proper to show the degree of malice by any words or acts of the Defendant, whether spoken or done before or after the action brought. We will presume, *126|¡iat they, under the charge of the Court, had that effect, and that effect only. No regard ought to be paid to the ,, . J , , , old rule, that these words mus.t »e such as were not actionable, that rule having yielded to common sense. For damages are not given for these words, but fertile words charged. They only tend to siiow the degree of malice entertained by the Defendant against the Flainiiff.

Per Curiam. — Let the judgment below be reversed, and a new trial granted.