
    
      George Y. Patrick v. Moses Smoke.
    
    In a suit before a magistrate, “in case a witness is not, or cannot be produced,” to prove the demand, the magistrate may examine either party; such oath being first proposed to the defendant, and upon his refusal to take it, then to the plaintiff. Act of 1839, sec. 15.
    If a plaintiff only swear that the account sued upon is just, to the best of his belief, perjury may be assigned of such an oath. 2 Russ, on Crim, 572.
    
      erjury consists in the false swearing, without any regard to the form of the oath; and if it be alleged that the oath was taken in any particular form, the statement is unnecessary and need not be proved. It is sufficient to prove that the defendant was duly sworn.
    
      Before Fitos'í, J. at Barnwell —Extra Term, July, 1848.
    This was an action of slander. The declaration set out a suit in assumpsit, before J. W. Muse, a magistrate, in which George Y. Patrick was plaintiff, and one Thompson defendant, to recover an account for $4 50; in which the dispute was, whether the amount was $4 or 4 50, and the plaintiff was- sworn to prove his demand; and that the defendant, referring to the oath taken by the plaintiff in the said suit, had published of the plaintiff the slanderous words. “You swore to a lie for half a dollar, and I believe I can prove it on the hill.” The dispute in the magistrate’s Court concerned the price of a bonnet, which Patrick’s wife had made for Thompson’s wife; the former swearing that it was $2 50, and the latter affirming that it was $2.
    It appeared in evidence, that the plaintiff and defendant met at Lowry’s turn out, and settling for some bacon the defendant had bought of the plaintiff, when a dispute arose about the weight, and the defendant charged the plaintiff with keeping false weights and measures. The plaintiff retorted on the defendant very gross abuse; and in the excitement of the quarrel, the defendant made the charge which is the subject of the action. A committee of the church, of which both parties were members, undertook to adjust the difference. Before this committee each party made his statement, and it was decided that the defendant should, in writing, retract what he had said. When a written retraction was offered for his signature, he refused to sign it, because, he said to the member of the committe who offered it, he could prove what he had said, if Thompson would adhere to what he had told the defendant. At the trial before the magistrate, he understood, from both parties, that the agreement for the bonnet had been made between their wives. No witness was offered; and the oath was tendered to Thompson, who declined to take it, because his information was only derived from his wife. The plaintiff then took the oath, that “the account was just and true, and no part paid, to the best of his knowledge and belief.” Mrs. Wessenger and Mrs, Thompson were permitted to testify that Mrs. Patrick had agreed to make the bonnet for two dollars. Evidence that the plaintiff had admitted that the price was two dollars, was excluded; because the direct effect of such evidence would be to prove the plaintiff guilty of perjury. But the evidence of Wessenger and Thompson was admitted, because it only showed grounds of suspicion, which might mitigate, though not justify, the imputation made against the plaintiff by the defendant. When the defendant made the, slanderous charge against the plaintiff, he called on Thompson to prove it; but he declined. Simons, and other witnesses, understood the charge to relate to the oath about the bonnet: not from any prefatory explanation by the defendant which might so apply the words, but from previous information of the dispute about the bonnet, and the defendant calling Thompson to prove what he said.
    The objections made by the defendant’s grounds of appeal were taken at the trial, on a motion for non-suit; and were overruled.
    Both parties appealed.
    
      Defendant's Grounds of Appeal.
    
    On motion for a non-suit.
    1st. Because, in the case of Patrick v. Thompson, tried before Esquire Muse, (in which the plaintiff was sworn, and in regard to which swearing, the alledged imputation is said to have been made,) the said plaintiff was a voluntary witness, and being such, peijury could not be assigned on the oath so taken, even if false.
    2d. Because the words as laid in the declaration are not actionable per se, and to make them such it should have appeared, either by the words themselves, or by a colloquium, that they had reference to a judicial proceeding.
    3d. Because there was only one witness who understood the allusion of the defendant, and his opinion was not formed by any thing that was said on the occasion of the uttering of the words, but on what he had previously heard from another.
    4th. Because, under the circumstances of the case, Esquire Muse had no authority to swear Patrick, particularly as there was other evidence of the fact to which Patrick swore, to wit: Mrs. Thompson, to whom the oath should have been tendered, as she was the real contractor.
    5th. Because the case of Patrick v. Thompson, tried before Esquire Muse, and in which the said Patrick was sworn, is stated in the declaration to have been an action of assumpsit] whereas, it is submitted that the magistrate can entertain properly but one kind of action, whether the same is on bond, note or open account.
    6th. Because, from the evidence of Esquire Muse and Mrs. Thompson, it was clear that Patrick, in his action against Thompson, swore onl y from the representations of his wife, and therefore, even if his oath had been untrue, perjury could not be assigned.
    7th. Because the oath taken by the plaintiff on the trial of his suit against Patrick before the magistrate Muse is alleged in the declaration to have been taken' “upon the Holy ; Gospel of God,” whereas it appeared distinctly by the evidence that the oath was not taken in such form, but with up-lifted hand.
    The plaintiff appealed, and moved for a new trial.
    1. Because his Honor erred in admitting the testimony of Mrs. Wessinger and Mrs. Thompson to prove that the account for fifty cents (in swearing to the justness of which the plaintiff had been charged with perjury) was not due — whereas, such testimony went directly to justify the charge, and was not admissible under the general issne.
    
    
      2. Because even if such testimony was admissible, and if not worthless, his Honor should have charged the jury that it could not avail the defendant, who it was plain did not, when he made the charge, rely on the testimony of Mrs. Wessinger and Mrs. Thompson, but after making the charge on his own authority, called up John Thompson to prove it. Indeed the very facts and circumstances which defendant now alleges as having induced him to made the charge of perjury, ought to have satisfied him before he made the charge, that the -plaintiff was mistaken and not foresworn, if these facts and circumstances existed.
    3. Because the damages were utterly inadequate — more especially as the defendant not only re-affirmed the odious charge in the most deliberate manner, by refusing to sign the paper drawn up in accordance with the decision of the Church Committee, but by the whole character and spirit of his defence endeavoured to blast the character of the plaintiff.
    
      A. P. Aldrich, plaintiff’s attorney.
    
      Owens, defendant’s attorney.
    
      Declaration.
    
    “And whereas also before the speaking of the several false, scandalous, malicious and defamatory words by the said defendant, Moses, of and concerning the said plaintiff George Y, in the first and second counts hereinafter mentioned, (a certain action of assumpsit was tried before G. W. Muse, Esquire, a magistrate of the said district, at the residence of the said G. W. Muse, in the district aforesaid, on or about the eleventh day of October, in the year of our Lord one thousand eight hundred and forty three, wherein the said plaintiff Geo. x. was the sole plaintiff, and one Jonathan O. Thompson the sole defendant,) and in which said action, before the speaking and publishing of the said scandalous words, to wit: On the day and year last mentioned, the said George Y. was duly sworn as a witness by the said magistrate, and did take his corporal oath upon the Holy Gospel of God, before the said magistrate, he the said magistrate, then and there having sufficient and competent power and authority to administer an oath to the said George Y.,in that behalf, and the said George Y. being so sworn, and having so taken his corporal oath, was then and there examined, and did give his evidence as a witness in the said suit, at the residence of G. W. Muse aforesaid, on the day and year aforesaid, and did swear on his oath aforesaid, as a witness aforesaid in the action aforesaid, to the following effect, that he, the said J. O. Thompson did owe to him, the said George Y., one half dollar more than he the said J. O. Thompson admitted to be due by him the said J. O. Thompson to the said George Y., in the said action, and the said George Y., further saith that the said Moses, well knowing the premises, but greatly envying the happy state and condition of the said George Y., and contriving and intending to injure the said George Y., in his aforesaid good-name, fame and character, and bring him into public scandal, infamy and disgrace, with and amongst all his neighbors and other good and worthy citizens of the said State, to whom he was in any wise known, and to cause it to be suspected and believed by those neighbors and citizens that he the said George Y., had been and was guilty of perjury, and to subject him to the pains and penalties by the laws of the said State, made and provided against and inflicted upon persons guilty thereof, and also to vex, harrass, oppress, impoverish and wholly ruin him, the said George Y., heretofore, to wit: on the seventeenth day of July, 1847, at the 76 mile station on the line of the Rail Road, belonging to the South Carolina Canal and Rail Road Company, in the district aforesaid, in a certain discourse which the said Moses then and there had with the said George Y., “in the presence and hearing of divers good and worthy citizens of the said district, the said Moses, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said George Y., and of and concerning the said evidence so given by the said George Y. as aforesaid,” in the action aforesaid, the false, scandalous, malicious and defamatory words following, that is to say : You (meaning the said George Y.) sxoore to a lie for a half dollar, (meaning that the said oath of the said George Y., in the said action in respect to the said half dollar, .was a false oath,) and I can prove it on the hill, (meaning that he could prove it by the said J. 0. Thompson himself.)
   Frost, J.

delivered the opinion of the Court.

The fourth ground of appeal affirms that a magistrate cannot swear an incompetent witness; for that in the act of administering the oath, the magistrate is divested of official authority ; and the oath is a nullity of which peijury cannot be assigned. By parity of reasoning, a magistrate cannot ren(jer an erroneous judgment. But the magistrate bad authority to swear Patrick. By the 15th sec. of the Act of 1839 <qn case a ^ness is not or cannot be produced,” to prove the demand, the magistrate may examine either party; such oath being first proposed to the defendant, and upon his refusal to take it, the same may be proposed to the plaintiff.

2 Russ, mi Cnm. 592.

Sixth ground.' — It is not material from whose representations or suggestion, a witness may swear falsely ; if he does so. He cannot-acquit himself of peijury by proving that he had heard what he testified. If he does not believe what he hears, he swears falsely when he testifies to it as true. When the defendant charged the plaintiff with swearing to a lie, he declared that the plaintiff did not believe what he swore to, and imputed to him perjury. The plaintiff testified positively that the account was just and true — and to the best of his knowledge and beliefj no part thereof was paid. But even if it be admitted the plaintiff only swore that the account was just, to the best of his belief, peijury may be assjgne¿ 0f an 0ath.

The seventh ground presents the question whether it was necessary to prove the allegation that the witness was sworn on the Holy Gospels. This ground was not taken for a non-suit at the trial. Muse, for the plaintiff, testified that he was sworn. The defendant’s witnesses said he was sworn with uplifted hand. The jury were instructed, that if it was proved the plaintiff was sworn, the form of the oath was immaterial. All the witnesses concurred that he did swear. The law does not prescribe any form of oath, under the sanction of which alone a witness can be received to testify. The common form should be used, if the witness does not object to it; but this is a rule of expediency. The modes of attestation may be as various as the diversities of religious faith. It is presumed that the mode which a witness adopts is conformable to his belief, and binding on his conscience, and he will not be permitted to deny it, in order to elude the penalty of peijury.

The statement in the declaration is, “that the said George Y. was duly sworn as a witness, by the said magistrate, and did take his corporal oath upon the Holy Gospel of God, before the said magistrate, he the said magistrate having then and there sufficient and competent power and authority to administer the oath to the said George Y. in that behalf; and the said George Y. being so sworn and having so taken his corporal oath, was then and there examined.” It was sufficient to have set out “that the plaintiff was duly sworn as a witness by the said magistrate,” “and was then and there examined ;” for the form of the oath is not material, and the Court must take notice of the authority of a magistrate to administer an oath. All the rest of the statement was unnecessary.

4 Bam. and C. 380.

2 strob. 273.

2 Hill, 64.

Peake’s Nisi Prius Cases, 211.

Peake N.P.C. 28.

The rules of pleading require that the declaration should' set out every fact necessary to constitute a complete cause of action. Every thing immaterial or irrelevant should be omitted. That which is immaterial may be rejected as sur-plusage and need not be proved. In Bloomfield v. Jones Holroy, J. makes this distinction. “If the'plaintiff states more than is necessary for the gist of the action, the jury may find so much proved and so much not proved; and the Court would be bound to pronounce judgment for the plaintiff upon that verdict; provided the facts proved constitute a good cause of action.” If the jury had found specially, in this case, that the plaintiff was sworn with uplifted hand ; or was duly sworn ; but not on the Holy Gospels, the Court should have rendered judgment for the plaintiff. In The State v. Koppenburg, the indictment charged the defendant with receiving from one Paxton, various drugs, <fcc. stolen from Haviland & Co. knowing then to be stolen. It was held that the offence consisted m receiving stolen goods, knowing them to be stolen, and not in receiving them from the principal felon; and therefore it was unnecessary to name the principal felon in the indictment; and being named, it was unnecessary to prove it, and judgment was rendered on the verdict, though it was not proved that the goods were received from Paxton. The principle of the decision may thus be applied to this case. Perjury consists in the false swearing, without any regard to the form of the oath ; and if it be alleged that the oath was taken in any particular form, the statement is unnecessary and need not be proved. It is sufficient to prove that the defendant was duly sworn.

In the State v. Porter, which was an indictment for perjury, it was held that the allegation, that the oath was taken on the Holy Gospels, was not supported by proof that the witness swore with uplifted hand. That decision rests solely on a nisi prius dictum of Lord Kenyon, in the case of the King v. McCarthur. In the indictment it was alleged that the witness swore on the Holy Gospels. It was proved the witness at first swore on the Testament; but ori information that he was a member.of the Kirk of Scotland, he was desired to swear with uplifted hand, and the oath was so administered. Lord Kenyon observed, if the defendant had only been sworn according to the form of Scotland, this would have been a good objection. But it must be noticed that in Mee v. Reed, a witness was called who insisted on being sworn with uplifted hand, and Lord Kenyon at first inclined not to permit him to be sworn in this form ; but at length determined to receive his evidence. The doubt in this case probably influenced the decision on the indictment for perjury. It has since been well settled that a witness cannot escape the penalty of perjury by any exception to the form of the oath he may have taken ; so that if a Hebrew swear on the Gospels he may be indicted for perjury, if he swear falsely. But the case of the State v. Porter does necessarily conflict with this. Stricter pleading and proof are required in criminal than in civil proceedings; and on this distinction the present case is excepted from the authority of that.

2 Bvod". and™' 232. '

On the first and second of the plaintiff’s grounds of appeal it is sufficient to observe, that the statement of the witnesses that the price of the bonnet was two dollars, does not prove that the plaintiff may not have believed that the price was two dollars and a half. Unless it were impossible for the plaintiff to believe any thing else than their evidence, their assertion, respecting the price of the bonnet, does not prove that the plaintiff swore falsely when he testified differently, and thereby justify, the defendant’s charge of peijury against the plaintiff.

The grounds of appeal which have not been considered were abandoned.

The motions are refused.

The whole Court concurred.

Motions refused.  