
    Magee vs. Stark.
    Where a slanderous charge can he collected from the words themselves It is unnecessary to malte any averment as to the circumstances to the supposed existence of which the words refer.
    Words which in their obvious sense carry to the mind of the hearer the imputation of a crime are per se actionable, otherwise they are not.
    The want of an allegation that the testimony up oil which the charge of perjury was based was material, is cured by verdict.
    The words 'Thad a law suit” necessarily implies a judicial proceeding.
    Thomas Stark instituted an action of trespass on the case against Asa Magee on the 20th day of August, 1838, in the circuit court of Weakley county. The plaintiff filed his declaration against the defendant for words spoken of the plaintiff imputing the crime of perjury, to wit: “I had a law suit with Thomas G. Denning, and Thomas Stark swore falsely against me, and I have advertised him as such.” The defendant pleaded “not guilty” and “justification.” Upon these pleas issues were formed, and at the October term, 1838, it was tried and a verdict rendered in favor of the plaintiff for the sum of two thousand dollars damages. A motion was made by the defendant to sef aside the verdict. This motion was overruled and no exception taken to the opinion of the court. The plaintiff then moved in arrest of judgment, which being overruled, he appealed in error to the supreme court.
    
      Totten, for plaintiff in error.
    1. The slander is alleged to consist of the charge of perjury, a felony, by which’it is implied that a lawful oath -had been administered in a judicial proceeding, and that the witness had sworn wilfully and falsely in a matter material to the issue.
    2. To charge a man with perjury is actionable of itself, because the charge implies the existence of every fact by which that offence is defined. Ward vs. Clark, 2 Johns. Reports, 12. For a general rule on this subject see Brooker vs'. Coffin, 5 Johns. Rep. 188, 191: Wedrig vs. Oyer, 13 Johns, Rep. 124: Starkie on Slander, 19, note.
    3. The words in the declaration do not, per se, constitute legal slander,- they are like the following, which were held not to be actionable without the aid of extrinsic facts; that is to say, “he has sworn a lie,” (Hopkins vs. Beadle, 1 Cains’ Rep. 347,) “he swore false before ’squire Andrews, and I can prove it,” (Stafford vs. Green, 1 J. R. 505:) “he has sworn falsely; he has taken a false oath against me in ’squire Jame-son’s court,” (Ward vs. Clark, 2 J. R. 10.)
    4. Those extrinsic circumstances then must contain that fulness and certainty which, in aid of the words spoken, would be equal to the direct charge of perjury, “and those circumstances must be averred in the declaration and proven on the trial.” Bullock vs. Koon, 9 Cowen’s Rep. 31: 4 Wendell’s Rep. 534. It should appear in the present case that a suit was pending before the arbitrators; that the witness was duly sworn by some person competent to administer an oath; that he gave evidence material to the matter in controversy; and that the words imputing perjury were spoken in reference to all those circumstances; so that if the words be true and not slanderous it would be competent to assign perjury on such false swearing. These rules it will be seen are not complied with in the present case. The fact of jurisdiction is not sufficiently stated; nor that the witness bad received a lawful oath administered by any one compe-teat to administer it; nor that the evidence was material to ■ the issue.
    5. These objections are applicable to all the counts; some of them are liable to other objections, as, that the words themselves are not stated, but only their “substance” or “effect,” which is erroneous. 2 Chit ty’s PI. 300, note y: 2 Salk. 417: 2 Johns. R. 12: 6 Taunt. 169: 3 M. and S. 116.
    6. It is not aided by the verdict. The proceeding being before arbitrators it will not be presumed that they as such had power to administer an oath, nor is it pretended to be stated how or by whom the oath was administered. Sayre vs- Jewetl, 12 Wendell’s Reports, 138: Trott vs. "West, 1 Meigs’ Rep. 168: Shelton vs. Bruce, 9 Yerger’s Rep. 26.
    7. The word “justification” should not, it is believed, be regarded as a plea; but if it should it would not prejudice the motion in arrest. It would not be presumed to contain more than a mere justification of the words alleged, and would not therefore aid the declaration. Felton vs. Ward, 3 Cnins’ Rep. 73.
    8. As to the case of Sherwood vs. Chase, II Wend. Rep. 40, it does not seem to be sustained by the cases referred to by the court. That of Niven vs. Munn, 13 Johns. Rep. 48, expressly states a suit pending before a justice, an oath ad* ministered by the justice “having full power and authority to administer an oath.” The same may be said of Chapman vs. Smith, 13 Johns. Rep. 78, where the declaration is still more special, fully stating a court, jurisdiction, an oath ad* ministered, &c. The case of Pangburn vs. Ramsey, also referred to, only decides that a verdict will aid a title defectively set out, not a defective title. 11 J. R. 142. So of the case of M^Laughry vs. Wetmore, 6 J. R. 82. The declaration there is so perfect that we may refer to it as a model for pleading in such cases. The case of Sherwood vs. Chase is in violation of principle, not sustained by the cases it refers to, and is in effect overruled by Sayre vs. Jewett, 12 Wend. 136: Shelton vs. Bruce, 9 Yerger, 26.
    
      Fitzgerald, for defendant.
    1. The first question is, wheth* gr the declaration is in proper form. That it is, cannot bp doubted. It is precisely the form in 2 Chitty on Pleading, 296. The subsequent courts refer to matter stated in the first. This is proper. 2 Chitty on PI. 300, and note h: 2 H. Bla. 131: 2 Wils. 114: Cro. Car. 76: Cro. Eliz. 240.
    But it is argued, 2. That the declaration should have averred that the evidence given by the plain tiff below on the trial was material. This is not necessary and is never done. See the form in 2 Chitty, 296: also form in 3 Chitty, 351-2: Starkie on Slander, 208: Miller vs. Miller, 8 J. R. 59, 2d edition: Starkie on Slander, 49, 51: \oiole vs. Robbins, 12 Mass. 498: Niven vs. Munn, 13 J. R. 48: Peake vs. Oldham, 1 Cowp. 275, first edition, 153: American Jurist, April, 1839, 198: Allen vs. Perkins, 17 Pickering, 369: Jurist, October, 1836, 213: Power vs. Price, 12 Wend. 500.
    From the foregoing cases it is now clearly and well settled that no such averment is necessary; it is a matter of proof not essential to be averred in the declaration; it is a fact in the case if necessary to appear, appears only in the trial and in the evidence. Then, considering the words in this declaration as only actionable by reason of the colloquium explained by the inuendos, even in that view of the case such averment is not necessary. But I contend that in this case the words are actionable per se, and that there was no necessity of any averment as to the trials, proceedings and* conversations stated in the declaration, and that the declaration would have been good without any such aver-ments, and that such averments are surplusage.
    The words in the first count are, “I had a law suit with Thomas G. Denning about a hog, and Thomas Stark swore falsely against me and I have advertised him as such.” Now, are these words actionable, and could an action be sustained on them without alleging a colloquium? Starkie on Slander, 206, lays down the general rule thus: “Where 'the slanderous charge or imputation can be collected from the words themselves it is unnecessary to make any averment as to circumstances to whose supposed existence the words refer.” And he states a case from Cro. Car. 337, where the words were “thou hast given J. S. nine pounds for forswearing himself in chancery, and hast hired him to forge a bond.” After ver-diet for the plaintiff it was moved in arrest that there was no - allegation of a suit in chancery, or that J. S. forswore himself in his answer or as a witness, or that the plaintiff suborned J. S. to forswear himself, or to show any particulars wherein he forswore himself; but the court said these aver-ments were immaterial, &c. “The imputation of an act may be inferred from a statement which virtually includes or assumes the commission of the principal act or a strong suspicion of it.” Starkie on Slander, 43, and cases there cited. “The criminal quality of the ag't imputed may appear from circumstances, explaining the meaning of words otherwise doubtful or innocent.” Starkie on Slander, 50, 51, &c.
    , What is the rule for the construction of words that now prevails universally? It is thus laid down by Starkie on Slander, 28, he says: “it is now-the settled rule that both judges and juries shall understand words in that sense which the author intended i to convey to the minds of the hearers as evinced by the whole circumstances of the case. That it is the province of the jury, where such doubts arise, to decide whether the words were used maliciously and with a view to defame; such being matter of fact to be collected from all concomitant circumstances. And for the court to determine whether the words taken in .the malicious sense imputed to them can alone, or by the aid of the circumstances stated upon the record, form the legal basis of action.” ^The old rule of construing in the milder sense is totally exploded, and I can find no case in the States of this Union where it has prevailed. Hoyle vs. Young, 1 Wash. 150: Demarl^t vs. Husing, 6 Cowen, 76, 87: Goodrid^ vs. Wolcott, 3 Cowen, 239: Gibbs vs. Dewey, 5 Cowen, 505: Hume vs. Arassmitk, 1 Bibb, 165: Logan vs. Steel, 1 Bibb, 593: Caldwell vs. Abby, Hardin, 529, 530: Beers vs. Strong, Kirby, 12: Rose vs. Mitchell, 2 Dali. 58: Brown vs. Lamberton, 2 Binn. 37: Walton vs. Singleton, 7 Serg. and R. 451: Walker vs. Winn, 8 Mass. 248: Chaddock vs. Briggs, 13 Mass. Rep. 248, 254: Sawyer vs. Eifert, 2 Nottand M’Cord, 511: besides the several cases already cited.
    3. This case has thus far been viewed as upon demurrer, but it stands upon a motion in arrest of judgment after verdict without exception. The judgment is beyond all question sustainable. In the case of Peak vs. Oldham, 1 Cow. 275, cited in - Starkie on Slander, 34, Lord Mansfield says, “the court will lean against setting aside a verdict in such a case, more especially in a case like the present, where the words have appeared to the jury to be so scandalous as to induce them to give a verdict for five hundred pounds damages, and where that verdict has received the sanction of the court in which the action was brought by their refusing to grant a new trial upon an application to them for that purpose.” He further says, in the same case: “What! after verdict shall a court be guessing and inventing a mode in which it might be barely possible for these words to have been spoken by the defendant without meaning to charge the plaintiff with being guilty of murder? Certainly not. Where it is clear that words are defectively laid a verdict will not cure them. But where from their general import they appear to have been spoken with a view to defame a. party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.” Rex vs. Horne, 1 Cowper, 672: Blizzard vs. Kelly, 9 Eng. Com. Law Rep. 87: 22 Eng. Com. Law Rep. 412: Ford vs. Primrose, 16 Eng. Com. Law Rep. 234: American Jurist, April No. 1838* 191: 12 Wend. 500.
    “After a verdict the presumption is that such parts of the declaration, without proof of which the plaintiff ought not to have had a verdict, were proved to the satisfaction of the jury.” 6 Comyn’s Digest, and cases there cited: 1 T. R. 545, 704. The following cases fully establish the doctrine here contended for. Owens vs. Morehouse, 1 J. R. 276: Thomas vs. Roosa, 7 J. R. 461: Duffie vs. Hayes, 15 J. R. 327: Bartlet vs. Crozier, 15 J. R. 250: Livermore vs. Boswell, 4 Mass. Rep. 437: Hull vs. GrandaTl, Kirby, 402: Chesnut Hill Turnpike Company vs. Rutter, Serg. and R. 6: Thompson vs. Mupor, 1 Dali. 458, 461: Brown vs. Barry, 3 Dali. 365: Pate vs. Bacon, 6 Munf. 219: Hawkins vs. Walker, 4 Bibb, 292: Goodloe vs. Potts, Cook’s Rep. 299: Peck’s Rep. 317: Anderson vs. Read, 2 Tenn. Rep. 205.
   Green, J.

delivered the opinion of the court.

This is an action for slanderous words. The declaration has several counts, in the first of which it is alleged that the defendant spoke of and concerning the plaintiff the following words: “I had a law suit with Thomas G. Denning about a hog, and Thomas Stark swore falsely against me, and I have advertised him as such.” The defendant pleaded “not guilty” and “justification.” The jury found a verdict for the plaintiff for two thousand dollars. The. defendant moved in arrest of judgment, which motion was overruled and an appeal in error prosecuted to this court.

The question now is, whether these words are actionable in themselves. Where the slanderous charge or imputation can be collected from the words themselves it is unnecessary to make any averment as to the circumstances to whose supposed existence the words refer. Starkie on Slander, 206. And slanderous words are to be understood in their obvious sense; and if, when so understood, they necessarily convey to the mind of the hearer the imputation of a crime, they are actionable per se, otherwise they are not. In the case of Sherwood vs. Chase, 11 Wend. Rep. 38, the words were: “I cannot enjoy myself in a meeting with Sherwood, for he has sworn false and I can prove it; and if you (meaning the bystanders) do not believe it you can go to esquire Bassett’s and see it in a suit between James L. Sherwood plaintiff and Richard P. Brown defendant.” After verdict the court refused to arrest the judgment, holding that the defect in the declaration, which was the want of an averment that the testimony was material, was cured by the verdict. This case of Sherwood vs. Chase is almost identical with the one now under consideration. The defendant in this case said he had a law suit with Thomas G. Denning about a hog, and Thomas Stark swore falsely against him. Although he does not say hefore what court the law suit was pending, yet as a law suit could not exist except before some judicial tribunal, the statement that he had a law suit is equivalent to a statement that there was a judicial proceeding; And so the court held in the case of Pelton vs. Ward, Cains, 73, where the words were: “You swore a damned lie and you know it, for which you now stand indicted.” The court said the words in this instance could mean nothing less than peiq'ury, for it was an allegation that the plaintiff had sworn to such a lie 'as rendered him obnoxious to an indictment.

The mere charge that a party “swore falsely” or “swore falsely before ’squire Andrews,” as in Stafford vs. Green, 1 Johns. Rep. 505, would not necessarily impute perjury, and therefore would not be actionable. There was nothing to show a judicial proceeding was referred to, or that ’squire Andrews was a justice of the peace. But a law suit implies in itself a judicial proceeding, and when mentioned necessaly refers to a judicial proceeding;

As to the other part of the charge, that “Thomas Stark swore falsely,” it necessarily implies that an oath was administered, and that in giving his evidence he stated a falsehood; The want of an allegation that the testimony was material we have seen is a defect that is cured by the vérdict. 13 Johns. 80: 6 Johns. 82.

We think there is no error in the judgment and order it td be affirmed.  