#### Margaret McDonald *v*. Kennith Murchison.

From Moore.

In an action for words, charging the Plaintiff with perjury in a particular suit, he is not bound to produce the record, of that suit.

Case for speaking of the Plaintiff these words, “you swore to a lie to-day, in a case tried before *Josiah Tyson,*Esquire, against *Daniel McDonald,*for killing a dog, and you offered to swear to a lie before.” On the trial before Norwood, Judge, tiie Plaintiff not being able to produce the warrant, on which the proceedings before *Tyson*were had, nor to account for its absence, the Judge directed a nonsuit, holding such proof to be a necessary part of the Plaintiff’s case, whereupon the Plaintiff appealed.

TatIiOK, C. J.

If it were not necessary to state in the declaration, the warrant and proceedings before the magistrate, it could not be necessary to qdduce upon the trial, any proofs of their existence. And when the vyords spoken in this case are considered in reference to their actionable quality, I think it will appear, that the law *8requires no other proof to be made, than such as the Plaintiff* offered.

*i*. . To say of a person that he is forsworn, is not neces-sarjjy actionable, because the words do not imply that the Plaintiff had forsworn himself in a judicial proceeding, and that alone, will constitute the crime of perjury. In bringing an action for such words therefore, the Plaintiff must, by way of introduction or inducement, state in the declaration, that some proceeding took place, or that some fact existed, to which the Defendant *alluded;*and this inducement is material and traversable. It must be shewn by a colloquium, that the words import a criminal charge, otherwise they are not actionable. But where the words spoken can be understood in none other than a criminal sense, as where the Plaintiff is directly charged with a theft or a perjury, no extrinsic matter is necessary to be charged, nor consequently to be proved. These words do upon their face, directly import that the Plaintiff was guilty of a judicial perjury, inasmuch as a magistrate has, in the first instance, jurisdiction of indictable trespasses, for the purpose of examining the charge, and of either binding the accused to Court, or discharging him. The words used by the Defendant, have discharged the Plaintiff from the necessity of making the averments necessary to show that a judicial proceeding existed, and are certainly actionable, if spoken maliciously. In such a case, the *prima facia*presumption is, that every thing took place before a Court of competent jurisdiction, and if the fact be not so, it is incumbent on the Defendant to prove it.

The slander in its present shape, is calculated to irijuve the Plaintiff to the same extent, as if it had been shewn that the warrant was issued and returned, and that the magistrate had jurisdiction j for every one, hearing it, would put the construction upon it, that she had perjured herself in a judicial trial. For these reasons, i think the nonsuit was improperly awarded, and that therq ought to he a new trial.

*9Ha.il Judge.

When one person charges another with having been forsworn, such words are not actionable, unless it is also charged that the forswearing took place in some Judicial proceeding, before a tribunal legally constituted, having jurisdiction pf it; in that case, the slander is complete, and the words are actionable, and it is not material whether any such Judicial proceeding ever took place or not. If there never had been any such Judicial proceeding, and the Defendant, in that particular, was guilty of a falsehood, he ought not to bo in a better situation than if he had told the truth, which he certainly would be, if it was incumbent upon the Plaintiff to produce it, or be nonsuited. When the Plaintiff, in the present case, proved the words charged in the declaration, she made out her case, and was not bound to produce the proceeding before the Justice of the Peace. I therefore think the nonsuit should be set aside, and a new trial granted.