The motion for arrest of defendant is based on O. S., 768, subsec. 1, which is as follows:
“The defendant may be arrested as hereinafter prescribed in the'following cases:
*115“1. In an action for the recovery of damages on a canse of action not arising out of contract, where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting real or personal property.”
In the present case the order of arrest is founded on an action for injury to character — slander, a tort, an action ex delicto.
In slander, malice must be shown. There are two kinds: (1) Implied, “malice in law”; (2) Actual, “malice in fact.” Malice may be implied or presumed from the use of certain words, as charging a person with a felony — the words are actionable pef se, and by the use of the words the law presumes or implies malice. Or there must be actual malice, sometimes termed particular malice, which is ill-will, grudge, desire to be avenged on a particular person.
Newell, Slander and Libel (4 ed.), part sec. 271, defines malice: “The word malice as a term of law has a meaning somewhat different from that which it possesses in ordinary parlance. In its ordinary sense ‘malice’ denotes ill-will, a sentiment of hate or spite, especially when harbored by one person toward another. The word is so employed in the well-known sentence in the litany of the Church of England, ‘From envy, hatred, and malice,’ etc. This is what the law terms ‘malice in fact,’ ‘actual,’ or ‘personal’ malice, to distinguish it from the legal sense attributed to the terms, and which, from being used in such sense, is accordingly designated ‘malice in law,’ which signifies a wrongful act intentionally done without any justification or excuse.”
Where malice is presumed or implied from the use of words actionable per se, ordinarily compensatory damages are awarded. ■ To obtain punitive or exemplary damages, actual malice must be shown, as was said by Stacy, J. (now C. J.), in Ford v. McAnally, 182 N. C., at p. 421: “Punitive damages, sometimes called smart money, are allowed in eases where the injury is inflicted in a malicious, wanton, and reckless manner. The defendant’s conduct must have been actually malicious or wanton, displaying a spirit of mischief toward the plaintiff, or of reckless and criminal indifference to his rights. When these elements are present, damages commensurate with the injury may be allowed by way of punishment to the defendant. But these damages are awarded on the grounds of public policy, for example’s sake, and not because the plaintiff has a right to the money, but it goes to him merely because it is assessed in his suit. Both the awarding of punitive damages and the amount to be allowed, if any, rest in the sound discretion of the jury. Cobb v. R. R., 175 N. C., 132; Fields v. Bynum, 156 N. C., 413; Hayes v. R. R., 141 N. C., 199; Smithwick v. Ward, 52 N. C., 64. However, the amount of punitive damages, while resting in the sound discretion of the jury, may not be excessively disproportionate to the circumstances *116of contumely and indignity present in each, particular case. Gilreath v. Allen, 32 N. C., 67; Sloan v. Edwards, 61 Md., 100; Bernheimer v. Becker, 3 L. R. A. (N. S.), 221.” Under certain facts and circumstances, actual malice may be inferred.
“In cases where malice is implied, it is not an issue. The issue of actual malice -or malice in fact may be and is raised by the demand of plaintiff for punitive damages, or by allegation of defendant that the publication was privileged, and when defendant seeks mitigation of damages, but has no relevancy to a defense of justification.” 37 C. J., p. 56.
In Scott v. Times-Mirror Co., 181 Cal., p. 358, it is said: “It is well established that in actions for civil libel where the plaintiff seeks to recover punitive or exemplary damages, or where the defendant alleges that the publication was justified on the ground that it was privileged, actual malice or malice in fact becomes an issue. As we have pointed out, the issue of actual malice was raised in this case both by the demand of the plaintiff for punitive damages and by the allegation of the defendant that the publication was privileged.”
We, do not think defendant could be arrested unless it is shown in using the words spoken he did so with actual malice. There is no issue of actual malice presented by the record. In actions of this kind after verdict and judgment to arrest the defendant it should appear affirmatively that the slander- — the words spoken — were done with actual malice and an issue submitted to the jury. This does not appear to have been done from the record. Ledford v. Emerson, 143 N. C., p. 527; Oakley v. Lasater, 172 N. C., p. 96; Coble v. Medley, 186 N. C., p. 479, and cases cited.
In Elmore v. R. R., 189 N. C., p. 674, we said: “There was no separate issue as to punitive damages, and on the record there is no way to ascertain if any of the damages awarded plaintiff were punitive.”
For the reasons given, the judgment below is
Reversed.