#### PENEL GILREATH vs. JOEL R. ALLEN.

In an action of slander, the jury may, if they please, give exemplary dam®. ages.

The case of Duncan v. Stallcup} 1 Dev» Bat. 440, cited and approved.

Appeal from the Superior Court of Law of Henderson* County, at the Spring Term 1849, his Honor Judge Bailey presiding.

This was an action of slander. It was in proof, that there was an action of ejectment, pending in the Superior Court of Henderson County/between the present plaintiff, Gilreath, and one George 'Allen, the father of the present defendant: that Gilreath, in support of his title in that suit, relied upon a grant from the State of North Carolina for the land in controversy, appended to which grant was a certificated of survey, signed by Thomas D. Clayton, the County surveyor; that the defendant, shortly before the trial of the said suit, to-wit, in March 1847, said of the plaintiff that he had better make up the suit with hia father, before Court, for; that the plaintiff had forged the name of the County surveyor, Thomas D. Clayton, to his title. The defendant offered evidence for the purpose of shewing, that, at the time of publishing the words, he was the friend of the plaintiff; that the witness, to whom he spoke the words, was also the intimate friend of the plaintiff; that the communication was confidential, made in good faith, and for the sole purpose, that it should be communicated to the plaintiff, so that the controversy between them might be compromised and friendship rastored.

*68The Court charged the jury, that, if they were satisfied that the words had been spoken by the defendant, and that he meant to convey the idea, that the plaintiff had forged the name of Thomas D. Clayton, the County surveyor, to a certificate of survey, which certificate was appended to the grant for the tract of land in controversy, then the plaintiff would be entitled to recover, unless they were satisfied, that the inference of malice was repelled by the confidential communication relied upon by the defendant; that if the communication, made by the defendant to the witness, was not confidential and in good faith, and for the purpose alleged by him, the plaintiff would be entitled to recover, and the measure of damages was solely for them to determine; that, in making up their estimate, it was proper for them to take into consideration the nature of the offence, charged upon the plaintiff, to-wit, the offence of forgery, and the mental suffering, arising from such a charge ; that if the suffering was great, they were to give him damages by way of compensation ; that, in cases of this kind, the question was, how much the plaintiff was entitled to receive, and not how much the defendant could pay ; that the damages should always be commensurate with the injury; but that, beyond this, they had no right to add any amount to the damages, which the plaintiff was entitled to receive, for the purpose of punishing the defendant. The jury found a verdict for the plaintiff and assessed his damages to five dollars. The plaintiff obtained a rule for a new trial, upon the ground of misdirection, in directing the jury, that they had no right, over and above the damages, to which the plaintiff was entitled, to add thereto any amount for punishing the defendant. The rule was discharged, and the plaintiff appealed from the judgment of the Court-

Gaither N. W. Wooclfm and Eclney, for the plaintiff.

Baxter, for the defendant.

*69Pearson, J.

The plaintiff excepts to the charge of the judge, upon the question of damages. We think he is entitled to anew trial.

It is settled in this State, that, in actions of tort, when there are circumstances of aggravation, juries are not restricted, in the measure of damages, to a mere compensation for the injury, actually sustained, but may, in their discretion, increase the amount, according to the degree of malice, by which the evidence shews the defendant was actuated, the extent of the injury intended, and not that, which was really inflicted. Accordingly juries are told, in many cases, they may gi ve exemplary damages, that is, such as will make an example of the defendant, or vindictive damages, or smart money, terms which explain themselves. Duncan v. Stallcup, 1 Dev. & Bat, 440, and the series of cases referred to in Iredell’s Digest. There is, in English Reports and those of our sister States, an uniform current of decision, which does not leave the question open.

Qur attention was called, in the argument, to the remark of Greenleaf in his treatise on evidence, 2 vol. 213, note 2, sec. 253. The author brings himself to the conclusion, that the doctrine of exemplary or vindictive damages is not sustained, either by authority or principle. His argument is inconclusive in both particulars. It is certainly so, as to the authorities; and, we think, equally so as to the principle. Injuries, sustained by a personal insult, or an attempt to destroy character, are matters, which cannot be regulated by dollars and cents. It is fortunate, that, while juries endeavor to give ample compensation for the injury actually sustained, they are allowed such full .discretion as to make verdicts to deter others from flagrant violations of social dut}'. Otherwise there would be many injuries without adequate remedy.

If juries are to be restrained, in actions of slander, to damages actually sustained, there can be no reason, why *70malice, on the part of the defendant,'should constitute the gist of the action. As malice must be proved, it is right that the damages should be in proportion to the degree of malice, and should not be restricted to a mere compensation for the injury actually done, however short it may be of the injury intended, and which would have been suffered, had not the plaintiff’s character been too high to be reached by the tongue of slander.

In this case, for instance, if the defendant, under the cloak of pretended friendship, attempted to deter the plaintiff from the prosecution of a just claim against his father, by falsely alleging that the plaintiff was guilty of the crime of forgery, can it be right, that he should be protected from exemplary damages, because the plaintiff’s high character made the assault harmless. The injury intended was the greater. The malice was unmitigated. If such assaults are tolerated, it cannot be told, how soon a high character may be prostrated, and, when it is, damages will not restore it.

Pkr Curiam.

Judgment reversed and a venire de nove awarded.