
    S. M. Dalrymple vs. William Lofton.
    
    1. In an' action of slander, the defamatory words alleged to have been, spoken were, though variously stated in the declaration, substantially, “you swore falsely on the trial of a case between me and Jerry Joiner, before ’squire Johnson.” The declaration contained a prefatory averment, that a case between the present defendant and Joiner had been pending, and was tried before a “certain Jesse Johnson, a justice of the quorum for the district of Laurens” — that-on the trial thereof, the plaintiff was examined, on oath, and gave his evidence as a witness for the said Joiner; and by proper averments in the colloquium and inuendoes, the words were alleged to have been spoken in reference to .the said evidence. It was held, that the words spoken do not, per se, impute the guilt of perjury; and that the prefatory averment, of which the plaintiff offered no other proof than such as was to be derived from the admissions of the defendant, contained in the words themselves, should have been proved as laid.
    2. If, by court, or magistrate, or justice, used in connexion with the swearing, the circumstance of a tribunal capable of trying, or an officer competent to administer an oath, had been added, the crime of perjury, it seems, would have been fully described; and in such case, the materiality of the evidence, and the jurisdiction of the tribunal, would he, prima facie, inferred. But in the absence of any word aptly denoting a court or judicial officer, the word “’squire,” or “esquire,” by the usages of society applied without any just discrimination, was of no avail.
    
      Before Earle, J. Newberry, Fall Term, 1842.
    This was an action on the case, for words imputing to the plaintiff that he had sworn falsely before Squire Johnson, in a certain cause wherein the present defendant was plaintiff, and Jerry Joiner was defendant. The words . were abundantly proved to have been spoken as laid in the declaration, on several occasions, as well as other words of similar import, by way of aggravation. It was objected, that the plaintiff failed to prove that there was such a trial before Squire Johnson, and that he was sworn as a witness. As the defendant himself asserted the facts, his Honor held it unnecessary to prove them as on an indictment for perjury, and the objection was overruled.
    
      The main defence was, that the evidence of the plaintiff on the trial before the justice was immaterial to the issue. It then became important to ascertain what the issue really was. The defendant, Lofton, as the administrator of James M. Dillard, brought suit before the justice against Joiner, on a sealed note, payable to Dillard in his life time. Dillard and the plaintiff, Dalrymple, had likewise been partners in trade, and had a store in the neighborhood, and on the books there had been an unpaid account, made and standing open long after the note fell due. In February, 1838, a payment of fifteen dollars was made by Joiner to the wife of Dillard, at whose residence the store was kept, in the absence of Dillard and the clerk. She gave him a receipt for the money, which, since the former trial, had been lost, and could not be produced. Both Mrs. Dillard and the justice deposed that the receipt expressed on its face that the payment was made on the book account. Another witness, Denson, who drew the receipt for Mrs. Dillard, thought it did not specify how the payment was to be applied; he was present when it was made, and Joiner said he owed them, and they might apply it as they pleased, he did not care, but he wished it credited on the books. On the trial of the suit upon the note, Joiner produced Mrs. Dillard’s receipt, and claimed to be allowed a credit of fifteen dollars as paid upon the note, and offered the plaintiff, Dalrymple, as a witness to prove that the payment was not credited on the books. He was accordingly sworn, and made that proof. On the present trial, Joiner was sworn as a witness, and deposed that he did not direct how the money should be applied ; that he met with Dillard soon afterwards, and told him to apply it as he thought proper, and Dillard replied, the note was due him individually, and was at the upper store ; that he was going up there, and would get it. But he did not say how he would apply it. On the trial before the justice, he contended for the payment on the note, as it had not been credited on the books, and Dillard had not informed him how he intended to apply it; and the issue seemed to be, whether he had received credit on the books; and if not, whether he should be allowed the credit on the note. The justice reserved the question for consideration, and Lofton was under the impression that he had given judgment against him at the time the words were first spoken. But judgment was finally given in his favor, although he afterwards allowed the credit of fifteen dollars on the note. It was insisted for the defendant, that on the trial before the justice, the defence set up by Joiner against the note, was palpably ,a discount of fifteen dollars paid to the firm, which was, in law, inadmissible, and therefore the evidence given to support it wholly immaterial, it being a matter of indifference whether the payment was credited on the books or not. And the court instructed the jury, that if such was their view of the issue before the justice, then the evidence of the plaintiff on the trial was immaterial, and their verdict should be for the defendant. But if the question was, whether the payment of fifteen dollars had been made on the note, or whether Dillard had agreed so to apply it, and thus entitle Joiner to claim the benefit of it as a credit on the note, then it would seem to be material to prove that the amount had not been entered to his credit on the book account. In this view of the issue before the justice, the evidence of the plaintiff would be material. The evidence of Joiner himself went strongly to sustain this latter view; and the question, what was the issue before the justice, seemed to be properly a question for the jury. The verdict was for $3000. On a former trial, the jury had found only $500, and the court made no remarks to guide the jury in regard to the amount of their verdict.
    The defendant appealed, and moved the Court of Appeals for a nonsuit, on the grounds :
    1. That the words spoken and alleged in the declaration not being actionable, per se, the extrinsic circumstances which rendered them actionable, should have been proved, as alleged.
    2. Because the colloquium contained in the counts of the declaration was not proved as alleged.
    And for a new trial,
    1. Because the verdict, from the circumstances, is unreasonable, excessive and outrageous.
    2. Because the evidence given by the plaintiff before the justice in the case tried, was immaterial to the issue, and consequently no legal slander was uttered.
    
      3. Because, whether the evidence given by the plaintiff before the magistrate was material or immaterial, was a question of law, and should have been decided by the court, and his Honor erred in charging the jury, that it was a mixed question of law and fact, and submitted it to the jury.
    4. Because, from the case made out from the evidence, it is evident that the evidence given by the plaintiff before the justice, was wholly immaterial to the issue then to be tried, and his Honor should have so charged, and that the verdict should have been for the defendant.
    5. Because his Honor charged the jury, that if the defence before the magistrate was payment, the evidence of the plaintiff was material to the issue.
    6. Because the verdict was contrary to law7 and evidence.
    Sullivan, Irby and Fair, for the motion.
    
      Pope & Caldwell, contra.
   Curia, per

Wardlaw, J.

The defamatory words alleged to have been spoken, are variously stated in the declaration, but are all substantially embraced in the expressions, “you swore falsely on the trial of a case between me and Jerry Joiner, before ’squire Johnson.” The declaration contains a prefatory averment, that a case between the present defendant and Jerry Joiner, had been pending and was tried before a “certain Jesse Johnson, a justice of the quorum for the district of Laurens,” and that, on the trial thereof the plaintiff was examined, on oath, and gave his evidence as a witness for the said Jerry Joiner ; and by proper averments in the colloquium and innuendoes, the words are alleged to have been spoken in reference to the said evidence. Upon the late trial of this case below', the plaintiff gave no other proof of any of the matter contained in the prefatory averment, than such as was to be derived from the admissions of the defendant, contained in the words themselves. The defendant’s motion for non-suit was overruled by the decision of the circuit Judge, and the propriety of that decision is presented for consideration in the first ground of the present appeal.

The question in effect is, whether the words are actionable perse. If they are so, the prefatory averment was wholly immaterial, and may be altogether stricken out, Of course it need not be proved. If, however, the averment was necessary to shew that the words imputed a criminality which, per se, they would not be held to mean, then the averment must be proved as laid, even although it may be more precise than was necessary. The slanderous words, like any other declarations of a party, are admissions of the truth of what they state. The question is then resolved into the enquiry, whether these words do of themselves impute the guilt of legal perjury. The modern decisions have very much relaxed the strictness which anciently prevailed as to the allegation and proof of slanderous words ; and it is now clear, that if the words themselves convey a slanderous imputation, it is indifferent whether the circumstances referred to really existed, or were invented by the defendant. Still, however, the law does not consider foreswearing ox falseswearing, of itself, to signify perjury ; and where such word is used, unless from the accompanying words it be clear that a judicial fore-swearing was meant, the plaintiff must shew upon the record, that the defendant alluded to some particular foreswearing which amounted to perjury. 1 Starke on Slanber, by Wendal, 397, marg. If the words contain a description of all the circumstances that constitute perjury, they have the same effect as if the technical word perjury was used; but if they omit any material circumstance, that circumstance must be supplied by averment; and, at any rate, before verdict, will not be infered by giving to other words their most aggragated sense.

Here, reference to “swearing” on a “trial” in a “case,” may be understood to point to a judicial oath, but not plainly. If by court, or magistrate ox justice, used in connexion with the swearing, the circumstance of a tribunal capable of trying, or an officer competent to administer an oath, had been added, the crime of perjury would seem to be fully described. In such case the materiality of the evidence, and the jurisdiction of the tribunal, would, under the authority of this case, when formerly before this court, (2 McMullan, 172,) be, prima facie, inferred, until the defendant had, by his evidence, shewn the transaction to which the words referred, and the immateriality of the evidence spoken of, or the want of jurisdiction in the tribunal meant. But in the absence of any word aptly denoting a court or judicial officer, the word “ ’squire,” or “esquire,” which is unknown to our law, and is, by the usage of our society, applied without any just discrimination, can be of no avail. It does not, then, appear from the words, but that the trial was had, and the oath taken, before some individual who had usurped authority, or to whom the parties in the “case” had voluntarily submitted their dispute: and so the words do not, of themselves, impute the guilt of perjury. The prefatory averment should, then, have been proved as laid; and although the words themselves may have admitted all of it, except the official character of ’squire Johnson, and the subsequent testimony may have shewn that he was a magistrate, it seems in no stage of the case to have been proved that he was a justice of the quorum.

If the want of this proof had been held material by the circuit Judge, no doubt the defect would have been supplied easily, and in conformity with our practice. The plaintiff should not, then, suffer for the error of the Judge, by our now ordering a nonsuit. But for the defendant it is urged, besides that Johnson’s being a justice of the quorum was never proved, that by the plaintiff being permitted to rely for proof of his averments wholly on the defendant’s admissions, the defendant has been obliged to call, for explanation of the transaction referred to, witnesses whom otherwise the plaintiff must have called; and the question of materiality, which defendant might have enquired into, by cross-examination, and presented a motion for non-suit, has thus been transferred from the court to the jury. That some disadvantage was brought upon the defendant by the course of trial, which the decision of the circuit Judge produced, is manifest.-

Justice, then, will be best done by a new trial, and that is accordingly ordered.

Richardson, O’Neall, Evans, Butler, and Frost, JJ. concurred.  