
    Sharp vs. Wilhite.
    1. It is the duty of a judge to reject incompetent evidence in all cases, unless the incompetency thereof is expressly waived; where, however, it is admitted without objection, its incompetency is waived, and the court will not grant a new trial-on account of the admission of it.
    2. Where a plaintiff in a suit before a justice of the peace swore that his account was just and true, and that he had allowed all just credits, but did not state that there was no other person by whom he could provenís account: Held, the oath having been taken without objection, the incompotency of the plaintiff’s evidence was waived, the oath was not extra-judicial, and the plaintiff was guilty of perjury in swearing to the account, if the oath was false.
    3. It is not necessary to sustain a conviction forpeijury that the oath under the-book debt law should have been administered in the exact words of the act. Alf that is necessary is a substantial compliance with the prescribed form.
    4. Where a declaration in slander alleged that the discourse of the defendant was had concerning a trial between plaintiff and defendant before M. Douglass, a justice of the peace, and concerning an oath the plaintiff took on said trial'be-fove said justice of the peace in proving his account: Held, that the declaration sufficiently showed the existence of a suit before a competent tribunal, and that the oath taken was as to a material matter in issue.
    On the 21st day of January,-1839, Joab Hill, a justice of the peace for Campbell county, issued a warrant in favor of George W. Sharp against Thomas Wilhite, to answer the plaintiff in a plea of debt due by account. This warrant was returned before Matthew Douglass, a justice of. the peace in the same county, on the 26th. The parties appeared and plaintiff,. Sharp, proposed to prove the account by his own oath. Wilhite did not object thereto, but stated, that if he did swear to the account he would, swear a lie. The justice then administered the oath to the plaintiff, Sharp swearing that the account was just and true, and that there were no credits due on the account.
    So soon as this was done, Wilhite stated that Sharp had sworn a lie. The justice rendered a judgment for the amount of the account, $2 50.
    On the 6th day of May, 1839, Sharp instituted an action upon the case in the circuit court of Campbell county against Wilhite. At the September term, 1839, the plaintiff filed his declaration in which he averred that “Wilhite on the 1st day of May, 1839, in the county of Campbell, in a certain discourse which said Wilhite then and there had in the presence and hearing of divers good and worthy citizens, of and concerning the plaintiff, and concerning a trial that had been between the said plaintiff and defendant, before one Matthew Douglass, a justice of the peace for Campbell county, and of and concerning an oath which said plaintiff had taken on said trial before said Matthew Douglass, a justice of the peace as aforesaid, in proving an account of him the said plaintiff, on said trial, before said justice of the peace, then and there in the presence, &c., did falsely and maliciously speak and publish the following false and slanderous words of and concerning the plaintiff and of and concerning his having proven his account by his oath before said justice of the peace qn said trial, that is to say, ‘you;’ meaning the plaintiff ‘have sworn a lie knowingly.’ ”
    The defendant pleaded, first, not guilty; second, that the supposed slanderous words charged in the plaintiffs declaration 'to have been spoken by him were true in substance and fact.
    To the first plea the plaintiff filed a general replication, and to the second a general demurrer. At a special term, in September, this demurrer was argued, and sustained, and leave given the defendant on motion to amend his plea. At the same term the defendant filed an additional plea, in which he averred that a suit was pending before M. Douglass, a justice of the peace for the county of Campbell, in which said Wilhite was plaintiff and defendant in this suit, was defendant in that, and that in said suit plaintiff was sworn as a witness for his own benefit, under and by virtue of the provisions of the act of the assembly authorizing parties in certain cases to prove their own accounts, and that said Wilhite did then and there depose and say, that his account was just and true, and that he had allowed all just credits, and that the said oath so administered and taken, was extra-judicial, and as administered, was taken without authority of law, dec. To this plea the plaintiff filed a general demurrer.
    This demurrer was not disposed of; and at a special term in March, 1841, the case was submitted to a jury upon the facts above set forth, Judge R. M. Anderson, presiding-.-
    His honor charged the jury that to entitle the plaintiff to recover, the oath, in the swearing of which the defendant charged the plaintiff with swearing falsely, must have been an oath for which, if false, he could have been convicted of perjury. His Honor read the book debt law in extenso to the jury, and told them (among other things not [excepted to) that it was only by virtue of the provisions of this act, (N. & 0. p. 131,) that a person was authorised to prove his own account for goods, wares and merchandize sold and delivered, and for work and labor performed, and that if the oath was not administered in the words of the act of assembly it was an extra-judicial oath, for which, if false, he could not be convicted of perjury; that if the justice did not swear thé person to the precedent fact necessary to make his testimony competent, to wit, thathehadno means of proving his account but by his own oath, but only swore him that the account was just and true, and that he had allowed all just credits, that such an oath, if false, would not sustain an indictment for perjury, and no crime-being charged, no action for slander was maintainable thereupon.
    The jury returned a verdict of not guilty. The plaintiff having moved the court for a new trial and the motion having been overruled, the plaintiff appealed in error.
    
      J. A. McKinney, for Sharp.
    
      Garrett, for Wilhite.
   Green, J.

delivered the opinion of the court.

This is an action of slander for defamatory words spoken of the plaintiff by the defendant. The words charged to have been spof-ken are, “you, (meaning the plaintiff) have sworn alie knowingly."

It appeared from the evidence, that the plaintiff had sued the defendant before a justice of the peace, and that on the trial he was sworn as a witness, and proved his own account, but he did not state that he had no other means of proving his account except by his own oath; nor was any objection made to his taking the oath, except that defendant told him he would swear a lie, if he swore to that account.

The court read to the jury the book debt law and told the jury, “that it was only by virtue of that act, that a person was authorised to prove his own account, either for work and labor done, or for goods, wares and merchandize sold and delivered; and that if the oath was not administered in the words of the act of assembly, it was an extra-judicial oath, for which a person could not be convicted of perjury, if the oath was false; that if the justice did not swear the person that he had no means of proving his account but by his own oath, but only swore him that his account as stated was just and true, and that he had given all just credits, that would not be such an oath, for which, if false, he could be convicted of perjury, and that if he could not be convicted of perjury, an - action of slander could not be maintained for saying he had sworn a lie in taking said oath.”

1. We think the court erred in the charge to the jury. Although the witness was not competent tojprovehis own occount, if he could prove it by another witnessj yet, as the defendant waived thequestion of competency, the evidence of the plaintiff as to the j ustice of the account was as material as it would have been, had no objection to his competency existed.

This court decided, in the case of Ewell vs. The State, 6 Yerg. 364 that the reception of incompetent evidence without objection, was no cause fora new' trial. It would certainly be inconsistent to hold, that a verdict produced by such evidence should stand, and yet, that if falsely given, the witness could not be convicted of perjury. A party has a right to waive all objection to the competency of a witness, who may be produced against him, and having done so, the evidence is as competent, and material as though no such objection had existed. This, however, does not 'dispense with the duty of the justice, or judge, to disregard in the one case, or reject from the jury in the other, incompetent evidence which may have been heard, unless the objection to its reception be expressly waived.

But the charge of the court, that “unless the oath were administered in the words of the act of assembly, it was extra-judicial,” was erroneous, independently of the principle above stated. The adoption of such a principle would be ruinous to society. Perjury and slander would often find, in slight verbal variances from the prescribed forms of oaths, the means of escape from the condign punishment, which justice invokes. Unquestionably,^ oath administered, substantially, according to the prescribed form, will be valid, and if taken falsely, the party will be guilty of perjury.

2. But it is insisted by the defendant’s counsel, that the plaintiff’s-declaration is bad, and that his demurrer to the defendant’s plea reaches that defect. We think there is no defect in this declaration. The colloquium states that the discourse of the defendant was had concerning a trial between the plaintiff and defendant before M. Douglass, a justice of the peace, and concerning an oath the plaintiff took on said trial, before said justice of the peace, in proving an account, as he lawfully might do. Now this statement sufficiently shows the existence of a suit before a competent judicial tribunal, and that the oath taken was as to a material matter in issue. Let the judgment be reversed and a new trial awarded.  