The privilege of charging persons with offenses 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, every 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," namely, 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 *Page 261 by a sense of duty and not by the malice which is generally to be implied from speaking words imputing a crime to another. Cockyane 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 bonafide in making the complaint or from a wicked and malicious mind. It follows that the instructions to the jury were as strong as they could possibly be, with any regard to the rights of the defendant, (381) 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 plaintiff might give 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 witness might apprehend their sense, more or 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 conceived that he was bound to serve, and by not making the objection the party (382) waived it.
PER CURIAM. No error. *Page 262 Cited: Shelfer v. Gooding, 47 N.C. 182; S. v. Patrick, 48 N.C. 447;S. v. White, 68 N.C. 160; Sowers v. Sowers, 87 N.C. 306; Nissen v.Cramer, 104 N.C. 576; Gudger v. Penland, 108 N.C. 600; S. v. Council,129 N.C. 517.