
    
      John L. Simpson v. L. J. Vaughan.
    
    In an action of slander for charging the plaintiff with having sworn falsely to his schedule, it is not necessary to so charge and state the false swearing in the preliminary part of the declaration, as would be necessary in an indictment for perjury; still, enough ought to appear in words, or by legal intendment, to show “ an oath in a court of justice.”
    After verdict, it is only necessary to read the declaration, with every implication and inference which can arise by or from the words used, and if, on so reading it, the plaintiff’s case is sufficiently stated, it will be sufficient.
    
      Before Mr. Justice Withers, at Fairfield, Fall Tenn, 1847.
    Withers, J. Upon the conclusion of the plaintiff’s testimony a motion for non-suit was made on behalf of defendant.
    The colloquium was of and concerning the application of the plaintiff for the benefit of the insolvent debtor’s law, under certain writs of ca. sa. I understood that the declaration alleged the fact that the plaintiff had duly sworn to his schedule, before one competent to administer such oath; but a blank was left in the declaration for the name of the person who administered the oath, and his official designation, which had not been filled at the trial. The plea was the ' general issue, and so far as this ground was concerned I overruled the motion for non-suit, being of opinion that the ground taken indicated a demurrer as the proper form of exception, if indeed it be conceded that the name of any person ivas necessary to be designated as having administered the oath.— As to the -objection that the words alleged were not sufficiently proved, the merits of that position, if any it has, will sufficiently appear, I presume, from the sequel, as I propose-to give the appellant the benefit of a very full report of the testimony. Unless I am quite mistaken, the occasions are not frequent, in actions of slander, in which the words laid have been more exactly proved than they were in this case. The words, as charged, were — ■
    “You swore a lie in making a schedule in the case of Chambers.”
    
      Marshall Mc.Graw (the first witness) said — “I heard defendant observe, on the 22d March, 1845, that Simpson, the plaintiff, swore to a lie, and he could prove it. He said this to Simpson’s face, and added that he had it in black and white. I understood the remark to apply to a schedule that Simpson had before rendered. This was said in Arrarat Baptist Church. Many persons were present. There was an ill feeling between Vaughan and plaintiff. Simpson was an ordained minister and acting clerk of the church. 1 heard Vaughan, a month or two before, use language of similar import. The words, spoken publicly in the church, were— ‘ John Simpson will be the next person forced out of here, for he has sworn a lie, and I can prove it in black and white.’ He was in the presence of Simpson, and I believe addressed John Simpson. I don’t remember the word ‘ you.’ Previous •circumstances led me to think that Vaughan referred to a schedule of Simpson’s. I so understood, from what Vaughan had before told me, to wit, that Vaughan had before as good as told him he had sworn to a lie.”
    
      James Hirwent was present on the said 22d March, 1845. Simpson was in the pulpit. When Vaughan had forced Mc-Graw out of the pulpit, he rather turned himself round, and, addressing Simpson, said, “ It’s your time next.” Simpson said, “For what?” Vaughan rejoined, “ You have sworn a lie, and I can prove it.” I suppose Vaughan alluded to the schedule, for he had told me before, Simpson had rendered a false schedule. I think he had bad feeling against Simpson; but I don’t know why. His conduct and language showed it. Simpson once offered Vaughan his horses for what he owed him; saying he would get a horse from his father-in-law, and let Vaughan have it.
    
      George Simpson was present on the same occasion.— Vaughan’s language, addressed to Simpson, was, “You shall go out next, for you have sworn a lie, and I can prove it: I have it in black and white in my house.” I understood him to refer to a schedule, for Vaughan had said the same thing to me before. He had ill feeling to Simpson; and said he would rather have his throat cut than bring such reproach upon his family. Simpson was Yaughan’s brother-in-law. — - Yaughan refused to take from me, before the occasion referred to at the church, the money for a note he held against Simpson. Yaughan is among our wealthiest men. I once heard him say he had twenty-five negro children too small to work. He has two or three plantations.
    
      John A. Waring, Gen. Cook, Major Elliott, and Osmund Woodward, gave Simpson a good character. Elliott said he had heard Yaughan declare, in his office, (the clerk’s,) that Simpson had sworn to a lie, in relation to the schedule, which was next offered in evidence, viz: Schedule filed by plaintiff on the 16th December, 1842, sworn to on the 25th December, 1842, professing to specify his whole estate and effects, rendered under ca. sas. in the cases of A. H. Chambers (for Law and Ellison) v. John L. Simpson, and A. H. Chambers v. the same.
    It was at this point that the plaintiff closed, and the motion for a non-suit was made.
    The evidence for the defence was from A. H. Chambers, who said, “ I was present when the plaintiff made application for his discharge, on the 24th December, and the schedule now presented, preceding the oath of plaintiff, contains all the items then specified in it. I objected to the schedule, and an amendment was made. Cook asked the plaintiff if he had horses ; he said no, neither horses nor mares. Cook asked if he owned any land or interest in land. He said he did not, and that this schedule contained every thing that he thought the law required. Cook asked if any moneys were due to him, and he said none. He denied that he had any thing else to render in his schedule, and said he had not any notes or accounts. I had two claims — one for myself and one for Law and Ellison. Simpson was allowed to go home that evening. The clerk said he would not try the case, but would summon a jury. None, however, was summoned, for Simpson paid the cases.
    
      Major Elliott, (who was clerk of the court at the time the schedule was rendered and sworn to before him,) said— •“ On the 26th December an amendment was made by me, in the schedule, by Simpson’s authority. Sundry articles were comprised in the memorandum of amendment, embracing, (among other things,) Simpson’s interest in land mortgaged to Thomas L. Simpson, and an unsettled account of Dr. J. P. Thomas. I did not discharge Simpson. Thomas \vas to come up and settle, and he did afterwards satisfy Chambers. Schedules were frequently amended in my office, and it was after the amendment in this case, that Yaughan used the language repeated in my former examination.” [This amendment was in Elliott’s handwriting, and was not subscribed or sworn to by Simpson.]
    
      Dr. Thomas. — '“Simpson was overseeing for me in 1842,' and I owed him for it. A grey mare was on my place represented to be his. He had her there also in 1843. Simpson claimed her as his own. He wanted to keep her there, and I said if so, she must work. In 1843 I paid money owing to Simpson in Dec. 1842. I was to pay a certain portion of Simpson’s wages to Leggo, by agreement between them. The contract with Simpson was for the year, and the money was not due till January, 1843. I had furnished him with articles. The balance of his wages was between $80 and $100. I had no settlement with him prior to 24th December, 1842.”
    
      Thomas Hobbs. — “ Simpson offered to sell a stallion to me about January or February, 1843. I had seen him with the horse in the course of the two preceding years; He offered him as his own. I understood he had raised him.”
    
      William Yaughan. — “ On the 4th Sunday in April, 1843; I bought a grey mare from Simpson, which was foaled and raised his, and belonged to him on 24th December, 1842.— The mare was delivered to me in the Fall of 1843. I went after her to Thomas’s, who would» not let her go out of the crop. In May I received a horse in her stead-, which I exchanged for her in the Fall. Besides myself and Simpson no one else was present at the trade. It was made near the spring (at Arrarat Church.) I paid for the mare in 1843 or ’44. I never went to Willis Beckham and asked him, as the owner of the mare, for his permission to trade for her with Simpson. But the bill of sale for her was signed by him.I gave for her $75. I never heard of Beckham’s ownership till I went for the mare. I learned from Yaughan that Simpson had rendered in his schedule. Beckham, at the poorhouse, once asked me how I liked the horse sent, and said he had no more claim on those horses, (the grey mare and horse,) than I had; that Joe Yaughan and some others were trying to break up Simpson, and he claimed them till Simpson could sell them to the best advantage. Before I got the mare in possession I heard Beckham had a claim, and I took his bill of sale, because he was responsible.
    
      Mr. Leggo said — “ In 1842, (I think,) I traded with Simpson for a rent note that he held on another man, not due till January following. I was to take it in payment of a debt owing to me by Simpson, provided one Coleman would pay the note. He hesitated, and I returned the note to Simpson, who, Coleman having agreed to pay it, re-delivered it to me at the sale of one Robertson, perhaps about the 12th December. I regarded the note as mine, even while Simpson had the custody of it. It was understood I would take it in payment of my demand, whenever Coleman would consent to pay it. Simpson is a preacher; and before this transaction I never heard any thing against him.”
    
      Bacas A. Broom.- — ■“ On the 18th December, 1842, an account was sued by a magistrate, in the name of J. M. Simpson. It was marked by the magistrate on the back of a copy, as assigned to J. M. Simpson. I owed it to plaintiif in this case. (The summons on the account was issued on the 17th December.) J. M. Simpson went to the West fourteen or fifteen months since.”
    The plaintiif replied by calling
    
      Willis Beckham, who said — “ I knew the grey mare.— She and the horse belonged to me. Wm. Yaugnan came to me in the latter part of the year 1842, to know if he might trade with Simpson for the mare, and I assented. I gave Yaughan a bill of sale some time after the trade. The mare and horse were sold to me in April, 1842, [and the witness produced a bill of sale of them of that date,] by Simpson. His circumstances were not then good. I am his father-in-law, and had paid «off a good many judgments against him. The consideration for the animals was $300. I did not take them home, for I was then engaged as an overseer, and I did not know what to do with them. I thought Simpson would groAV insolvent. He had land under mortgage to Lewis Simpson for a debt exceeding what it sold for.— Yanghan paid for the mare, partly to me and partly to Simpson, as I directed him. I never told Yaughan that I had no claim on the mare and horse. On the fourth Sunday in April I was at Arrarat church, and never knew or heard any thing of a trade for the mare. Simpson bought hogs after the schedule was rendered.”
    
      Marshall Me Grato. — “Plaintiff’s character is good. Iam pastor of Arrarat church — presume I was there on fourth Sunday of April, 1843. Simpson always attended worship when not sick, and went into the house when it began. The members of the church required him to bring this matter before the Court.”
    
      Mr. Walling. — “I was in Elliott’s office when Vaughan said to Elliott that Simpson had sworn to a lie. Elliott cautioned him against such language. He said, ‘Yes, he has.— It is in black and white in your office.’ This was after the ca. sa.
    
    
      Mr. Elliott thinks he furnished Vaughan with a copy of Simpson’s schedule.
    
      Mr. Rutland, attorney at law. — “ I was Simpson’s attorney in drawing his schedule. He consulted .me as to what should be included in it. I do not remember that the particular matter of the account with Thomas was discussed. I have no doubt I advised Simpson he was not bound to include it, for, considering it not due, such advice would comport with that which I have uniformly given to clients in like circumstances.”
    The foregoing comprises the whole testimony.
    As to the first ground of appeal for new trial, I have only to remark that the same proposition therein announced was proclaimed to the jury by the defendant’s counsel, and it is to be supposed they gave it such weight as was proper.
    As to the second ground, I have to remark that I charged the jury, with perfect distinctness, I think, that I thought the transaction between Simpson and Beckham, touching the mare and the horse, was, in law, fraudulent as to Simpson’s creditors; and they might have treated with perfect indifference the claim of Beckham to the animals. This portion of the charge I made to ratify the doctrine of the defendant’s counsel, and I know not why it should be exceptionable, if done under such a lead. Twine’s case was referred to in behalf of defendant, and I said the case of Smith and Henry was enough for me on that subject. I said not a word as to Simpson’s legal obligation to include in his schedule the mare and horse ; but I did tell the jury that it did not follow, as a legal consequence, that because he did not so include that property, that he was, therefore, guilty of peijury; for, to make up that offence, the oath, besides being false, must be wilful and corrupt.
    As to the third ground, I explained to the jury what the testimony was, touching the memorandum on the schedule of addititional articles of property, made by Elliott, the clerk, acting, as he said, by the direction of Simpson; but 1 did not treat that memorandum as an amendment of the schedule in due form of law; nor was it so treated, according to my understanding, by any body: although Chambers, the defendant’s own witness, and upon the defendant’s own examination, said “that an amendment was made.” In fact this transaction was argued as a circumstance going to show that Simpson knew he had rendered a false schedule in the first instance, and the attempt was made to encourage the belief that a. guilty terror- had seized Simpson, by reason of the probe administered to him by Mr. Cook on the 25th December. I remarked in general, to the jury, that because a man had omitted to include, in the first instance, every thing that properly should be in his schedule, it did not thence follow, ex vi termini, that he was guilty of perjury; and that it was quite usual to permit amendments of schedules, when it appeared that omissions had occurred by mistake or accident. If the jury inferred from this that the false swearing had been cured, it is more than I know.
    As to the last ground, complaining of excessive damages, because circumstances mitigated the offence, it is possible, if the jury could be heard in defence of their action, they might urge that, allowing it to be unlawful for any one to say of Simpson what Vaughan said of him, it was not very mitigating that it was vehemently re-affirmed by his counsel on the trial; that it was said by a brother-in-law, in a church, on Sunday, before the neighborhood assembled, when the plaintiff professed to be engaged in the service and worship of God; that it had been said perseveringly — once in the clerk’s office, and so forth. The verdict was $500.
    At the sitting of the Court of Appeals, in Columbia, the defendant renewed his motion for a non-suit, on the grounds taken at the trial, and for a new trial, on the folo wing grounds.
    1st. Because the sale of the horses (mentioned in the trial of this case) to Beckham, by Simpson, was fraudulent and void, and they should have been included in the schedule of Simpson; and failing so to do, it gave good ground for a charge of perjury.
    2d. Because his Honor erred in charging the jury that this sale was fraudulent as to creditors alone, thereby leaving it to be inferred by the jury that Simpson was not compelled, in law, to include said horses in his schedule.
    3d. Because his Honor erred in charging the jury that the schedule of Simpson had been amended, and that “ this was an every day business ;• any man was allowed to amend his schedule when, in point of fact, the schedule was amended without an order from the Commissioner of Special Bail, and after application for discharge, and trial had thereon.— By which charge the jury inferred that the false swearing had been cured.
    4th. Because, under the many mitigating circumstances, the verdict of the jury is excessive.
    Cook, for the motion.
    The words are not actionable per se; and it not appearing, by the averment in the declaration, that they were spoken in reference to a judicial proceeding, before an officer competent to administer an oath in such case, the declaration is defective in substance, and will not support a verdict. Consequently it may be taken advantage of at any stage of the proceedings; and as well by motion for non-suit as demurrer, or in arrest of judgment. — Dalrym-plev. Lofton, 2 Spears, 588; Power v. Miller, 2McC. 220.— A defect of this nature cannot be cured by verdict. There are defects of substance and defects of form. Defects of the former description are- not cured by pleading, nor by verdict; the latter are subjects of special demurrer, and are cured by pleading over and by verdict. Defect in substance is the omission of some averment necessary to the cause of action. Now in the present case, perjury cannot possibly be assigned upon the words and the averments in the declaration. It does not appear that the alleged false swearing was before an officer competent to administer an oath, nor can it be legally inferred that it was in a judicial proceeding. — Vide Morgan v. Livingston, 2 Rich. 573; 4 Stewart and Porter, 397; 9 Pick. 62; 11 Wend. 375; 2 N. and M. 364, and 3 Mc-C. 308.
    Hammond, contra
    
    Cited 1 Chit. PI. 639, and 1 Chit. PI. from 630 to 644 inclusive; 2 Rich. 395.
    A. W. Thomson, contra—
    Cited 1 Hill, 32; 3 Chit. PI. 1247, and 1 Chit. PI. 401; 1 Saund. Rep. 226 and 228, note; and 1 Tidd’s Pr. 451.
   O’Neall, J.

the opinion of the Court.

In this case the grounds taken for new trial need no comment : the explanation given of them by the report is perfectly satisfactory. The ground for non-suit, which questions the sufficiency of the plaintiff’s declaration to support this action, is all which will be considered. Indeed, to that alone was addressed the argument of the defendant’s counsel. If it be true that the statement made in it does not set out any sufficient cause of action, then I am prepared to say that the objection is as good a ground of non-suit, as it would be in arrest of judgment. — 2 Tidd’s Practice, 867.

In setting out the preliminary matter to which the colloquium was to apply, and which was to make apparent the criminal accusation supposed to be made against the plaintiff by the defendant, it is stated, “a certain capias ad satisfaci-endum had been issued by one Alexander H. Chambers against the said plaintiff, upon a certain decree obtained against the said plaintiff, by the said Chambers, in the Court of Common Pleas held in and for the District aforesaid; under which said capias ad satisfaciendum said plaintiff had filed a petition, praying for the benefit of the Acts of the General Assembly of the State aforesaid, commonly called the prison bounds Acts, accompanied with a schedule-of the goods, chattels and effects of the said plaintiff, regularly sworn to by said plaintiff, before one-, acting-, of the District aforesaid, &c.

There is no doubt that the blanks in this statement were good cause of special demurrer; but as such, the defendant’s counsel, both impliedly and expressly, waived them, by pleading the general issue, and by his agreement with the plaintiff’s attorney, as he stated it in Court. The point now made, and very well argued by him, is whether the preliminary matter, thus stated, is not radically defective, inasmuch as it does not set out such a legal false swearing of which perjury could be assigned. I have no doubt that it is not necessary to so charge and state the false swearing, in the preliminary part of a declaration, as would be necessary in an indictment for perjury. Still, enough ought to appear, in words or by legal intendment, to shew “ an oath in a court of justice.”— After verdict, any statement from which the legal inference would arise, that to sustain the statement made, proof of such “oath in a court of justice,” must have been made, in order to have enabled the plaintiff to so have recovered, will be enough. — 1 Tidd’s Practice, 451; 2 Tidd’s Practice, 219.— There is no doubt, from the statement made, that the plaintiff, in support of it. must have shown his arrest by the ca. sa. mentioned, his application for the benefit of the prison bounds Acts, the filing of his schedule, legally sworn to before the proper officer. If this were done, and of it the defendant said the plaintiff had sworn falsely, then by such charge the crime of perjury would be imputed, and the action of slander would well lie. The words “regularly sworn to” are, perhaps, equivalent to “legitima modo et formap and if so, they would be sufficient. For then every thing would be considered as done, which the law demands and enjoins to be done on such an occasion. After verdict it is only necessary to read the declaration, with every implication and inference which can arise by or from the words used; and if, on so reading it, the plaintiff’s case is sufficiently stated, it will be sufficient. Thus testing the plaintiff’s declaration, it seems to me that the oath to which the defendant’s words refer, is sufficiently shown to have been on a legal occasion, and properly administered, and hence, that out of it peijury might have arisen. This is enough for the plaintiff. The motions are dismissed.

EvaNs, J. Wardlaw, J. Feost, X and Withers, X concurred.

.RichardsON, X dissented.

Motions dismissed.  