
    Mary A. Moore vs. Pleasant Horner.
    1. Slander. Perjury. Arbitration. Judicial proceeding. Act of 1806, ch. 46, § 2. An action of slander may be maintained npon a charge of false swearing in a proceeding by arbitration, under the act of 1806, ■ ch. 46, § 2. Such an arbitration is a judicial proceeding, in the sense of the act of 1829, ch. 23, § 42.
    2. Statute. Construction. Oath. Same, where a statute which authorizes arbitration of matters in dispute where no suit is pending, by verbal agreement and reference of the parties, gives to said arbitrators the power to.summon and compel the attendance of witnesses under the ordinary penalties for the non-attendance of witnesses in Courts of justice, it is held that such power carries with it the power also in said arbitrators to examine said witnesses and to administer to them a lawful oath.
    3. Slander. Technical perjury. The doctrine that a charge of false swearing is not actionable per se unless it amounts to legal perjury, is a highly technical one, the reason of which is not very apparent, either as respects the moral turpitude of the offence, the motive of the party uttering the charge, or the essential injury to the reputation of the party accused. Per McKinney, J.
    PROM JEPEERSON.
    This was an action of slander from the Circuit Court of the county of Jefferson. The ground of the action was an alleged charge by the defendant that the plaintiff had sworn falsely in a certain proceeding by arbitration, in which she was a witness, and one Elijah Moore and the defendant were the parties litigant. No special damages are claimed in the declaration. It appears that on the 1st of March, 1856, said parties to the arbitration met before William Courtney, Esq., a justice of the peace for said county, to litigate the same matters in dispute in an action of debt commenced by warrant. Upon conference between them on that occasion, they made a verbal agreement to submit the matters in dispute to arbitrators, one to be selected by the plaintiff to the warrant, and the other by the defendant, and the arbitrators to select an umpire upon disagreement. Under this arrangement, said Courtney was selected by the one party and James W. Alderson by the other, and they chose William McFarland as an umpire. The arbitrators heard the testimony, and agreed upon an award. Among other witnesses examined by the arbitrators was the plaintiff to this action, Mary A. Moore, to whom an oath was duly administered by said Courtney. In the course of her examination, the defendant Horner charged her with swearing falsely, and on other occasions afterwards reiterated the charge, whereupon she brought this action. It seems that no record or entry of tbe reference or tbe award was made upon tbe docket of said Courtney; but after tbe award was announced, tbe parties agreed upon a modification thereof, which was entered upon tbe docket of said Courtney as a judgment. Tbe Circuit Court, however, excluded tbe testimony as to tbe entry of this last proceeding. Tbe cause was submitted to a jury at tbe August Term, 1857, before Judge Tuehey. Tbe jury was instructed as follows: “ Tbe declaration, in all its counts, alleges tbe slanderous words to consist in an imputation of perjury, charged by tbe defendant to have been committed by the plaintiff in her examination as a witness; and there being no special damages either claimed in tbe declaration or argument, it becomes important to inquire whether tbe swearing about which tbe words were spoken would have been perjury in its legal sense bad it been false-; for if it would not, then tbe plaintiff would not be entitled to- recover any thing, even if tbe jury believed she bad been guilty. Whether tbe oath was such as would subject tbe plaintiff to tbe penalties of perjury bad it been false, depends upon tbe question whether tbe proceeding in which it was taken was or was not a judicial proceeding. If tbe oath were administered and tbe testimony given on a trial before a justice of tbe peace, as such, that would be such a judicial proceeding as would subject tbe witness, if' she swore falsely, to the penalties of perjury. But if tbe oath was taken and the proceedings given in a proceeding before arbitrators, then it would depend on circumstances whether swearing falsely would be perjury, and, consequently, whether an action would lie for imputing perjury in tbe swearing. - Tbe jury will look to the proof, and see whether a suit was pending before Courtney, tbe justice of tbe peace, between the parties mentioned in the declaration, and whether it had been referred to Courtney, Alderson, and McFarland for arbitration before the plaintiff was sworn as a witness; and if it had, the swearing, if false, would not have been perjury unless the submission to arbitration had been in writing, or the reference entered among the proceedings of the justice. If the reference was merely Yerbal, the proceeding was not a judicial proceeding, in which legal, technical perjury could be committed, and words imputing perjury to a witness for what was given in evidence in such a proceeding would not be actionable in themselves. Whether the swearing was had in the one proceeding or the other, is a question for the jury upon the proof. If you find from the proof that the matters in dispute were referred by verbal agreement to the'arbitrators, and, after hearing the evidence, they or a majority of them reported an award, and then, by agreement of the parties, a different sum than that awarded was entered by the justice as the final judgment, that would not be such an entry on the justice’s proceedings as is contemplated by the act of 1852, in order to make it a judicial proceeding. The question still recurs, was it a submission to arbitration in writing, or had the reference been entered on the justice’s proceedings at the time the witness was examined ?”
    The verdict and judgment were for the defendant. The plaintiff appealed in error.
    T. D. & R. ARNOLD and Swann, for the plaintiff.
    BARTON, McFaRLAND, and Thornburgh, for the defendant.
   McKinney, J.,

delivered the opinion of the Court.

This is not a case within the act of 1852, ch. 178. And the question is, can the action be maintained upon a proper construction of the act of 1806, ch. 46, § 2 ? The first section of this act provides for the compulsory attendance of witnesses by subpoena before arbitrators, in all cases pending in any of the Courts of this State that may be referred by rule of Court, and likewise to cases pending before justices of the peace that may be referred to arbitration.

The second section provides in like manner for the attendance of witnesses in cases referred to arbitration by the mere verbal agreement of the parties, where no suit is pending in respect to the “matter in dispute” between them. In cases under the second section, in like manner as under the first section, witnesses summoned to appear before arbitrators are bound to attend in the same manner, and are entitled to all the privileges and compensation, and are subject to the same penalties for non-attendance as witnesses attending in cases before a Court of justice. If, then, perjury may be predicated of the false swearing of a witness under the first section, it is difficult to perceive why it may not under the second section also. And it is no less difficult to perceive why a proceeding under the second section is not as much recognized as being in the nature of a judicial proceeding as under the first: they are alike modes of administering justice and adjudicating matters in dispute between the parties sanctioned by law. And these adjudications, if properly made, are equally conclusive and binding on the parties as the judgments of Courts of record.

But in neither section is there express authority given to the arbitrators to administer an oath to the witness; nor is it declared in either section that the false swearing of the witness shall constitute perjury. Hence it is argued that the statute being silent in these respects, the arbitrators had no lawful authority to administer an oath; and, consequently, that the false swearing of a witness before them would not constitute legal perjury.

It would, as it seems to us, be a most absurd .construction of the statute to hold that the Legislature, in giving the power to compel the attendance of witnesses before arbitrators in the ordinary mode, intended to dispense with the first and principal test and safeguard for the ascertainment of truth — the sanction of an oath. Such an idea cannot for a moment be entertained, and therefore the construction of the statute must necessarily be, that the right and the power to enforce the attendance of witnesses before the arbitrators, implies and carries with it a power to the arbitrators not only to examine the witnesses but to administer a lawful oath to them. A different construction would make the statute alike unmeaning and unavailing for the purpose contemplated. In this view, it results that the false swearing of a witness under the circumstances stated would constitute perjury — all other objections aside.

The rule that a charge of false swearing is not actionable per se, unless it amounts to legal perjury, is a highly technical one, the reason of which is not very apparent, either as respects the moral turpitude of the offence, the motive of the party uttering the charge, or the essential injury to the reputation of the party accused.

It follows that the charge is erroneous; and on this ground the judgment will he reversed and the case remanded for a new trial.  