
    E. H. Pegram v. John Styron.
    Columbia,
    May, 1830.
    Words, charging perjury, in swearing, before a magistrate, to the truth of ah account, with a view to its being rendered in to an administrator, are not actionable, per se.
    
    Althong:i t-ie words '¡Spoken 'import a criminal charge, yet if they áre explained at the time, or are understood by the persons who hear them, to refer to a matter not criminal, they are not actionable, without special damage.
    Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830.
    This was an action of slander, for charging the plaintiff with the crime of perjury. The words proved were, “he has sworn to a lie, and I can prove it; and he ought to have his ears cut off — he has perjured himself.” The witnesses all stated, that they understood the words to be spoken in reference to an-oaih taken by the plaintiff, before Matthew Mims, esq. a notary public, of the truth of an account against David Brown, deceased, which the plaintiff was about to render in to the defendant, who had administered on Brown’s estate.
    The defendant moved for a nonsuit, on the ground,' that the words were not actionable of themselves,- and no special damage had been laid, or proved. The presiding Judge refused the motion; and charged the jury, that the words were actionable without proof of special damage. They imputed to the' plaintiff the commission of an offence, which would subject him to an infamous punishment; and they were not explained by reference to the oath taken before Mr. Mims. That was not a voluntary oath, but an oath made in a course of justice; and perjury might he assigned upon it, if it were false.
    The jury found a verdict of $50, for the plaintiff; which the defendant now moved to set aside, and renewed his motion for tt nonsuit.
    
      Tomkins, for the motion.
    Cited Page v. Keble, Cro. Jac. 436. Ward v. Clark, 2 Johns. 10. State v. Stephenson, 4 M‘C. 165^ Power v. Miller, 2 J<7. 220. Ashhell v. Witt, .2 N. &. ¡VI. 364. Van Rensselaer v. Dole, 1 Johns. Oa. 279.
    Bauskbtt, contra.
    
    It is conceded, that if the words were spoken in reference to a matter not involving criminal liability, the action will not lie ; but there is no evidence, that the words proved in this case were spoken with any such reference. The witnesses, it is true, understood them to vefer to the oath taken before Mr. Mims but it does not appear, that this surmise, was founded upon any thing said by the defendant at the time. He charged the crime of perjury expressly, and unequivocally, indicating, oven, what he supposed to be the punishment of legal perjury ; and all this without any reference, or explanation, whatever. Unquestionably, the, rule of good sense requires, that he should be answerable for his words, as he used them ; not as by-standers may happen to understand them.
    It admits of question too, whether perjury might not be assigned on the oath taken before Mr. Mims. It was not a voluntary oath. Executors, and administrators, invariably require, that accounts contracted by their testators, or intestates, should be sworn to, before they will pay them ; and although, it is true, that there is no statute which ordains it, yet it is well known, that ordinaries, and commissioners in equity, in taking the accounts of executors and administrators, always insist that such accounts should be vouched by the oath of the creditor.
    
   O’Neall, J.

delivered the opinion of the Court.

In order to have enabled the plaintiff to sustain his action in this case, it was necessary, that it' should have appeared, that the words imputed to him the commission of a crime, which would have subjected him to ah infamous legal punishment. For one of the grounds of the action of slander is, that the publishing of words, which charge the plaintiff with a legal crime, may cause the suspicion to fix upon him, that he has perpetrated the crime, and thus possibly subject him to prosecution for it: another ground of the action is, ihe injury'done to his character by the charge of a crime, the consequence of which is an infamous legal punishment. If words spoken, unexplained, would be actionable, but, at the time they are spoken, they are so explained, as to shew .that they impute no legal .crime, then they are not actionable, no matter,. how a witness may affect to understand them. If the words spoken are understood, by the person's who hear them, to refer to a matter not criminal, it follows, that they cannot be actionable; for both of the grounds of the action of slander are wanting. The plaintiff is in no danger of legal prosecution, nor is his character affected by words, which are not understood to impute to him a crime, for which he would be liable to suffer an infamous legal punishment. Van Rensselaer v. Dole, 1 Johns. Ca. 279. The words proved in this case, were understood by all the witnesses to relate to the oath, taken before Matthew Mims, esq. a notary public, in swearing to an account, which the plaintiff rendered in to the defendant, as administrator of David Brown, deceased. That was an extrajudicial oath, not in a course of justice, aud'one upon vihich perjury could not be assigned. The words were therefore not actionable, and the motion for a nonsuit is granted.

Colcock, J. and Johnson, J. concurred.

Nonsuit. 
      
      
        vide note at page 496, ante.
      
     