#### CULLEN SMITH *vs.*CALEB SMITH.

ílrror will not lie for a refusal to non-suit, except in a few cases in which the duty is imposed by statute.

A verdict on the merits of the case is to be set aside only for an error of the Court practically prejudicial.

Ia an action of slander, charging that the defendant, speaking of a particular suit, affirmed that the plaintiff “had sworn to alie,” the particular evidence given by the plaintiff on the trial of the suit Is never set forth in the declaration, and therefore need not be proved.

If the defendant had, in speaking the words, gone on to specify the matters testified by the plaintiff and the point on which he had sworn falsely, then it would have been incumbent on the plaintiff to have set forth the whole truly in his declaration ; and if, upon the whole thus stated and proved, the matter to which the alleged false oath related, appeared to be immaterial, the action could not be maintained.

In actions of slander, evidence of the truth of the words spoken cannot be received under the general issue, even in mitigation of damages; though evidence of general bad character may be so received.

Whether after the defendant has closed his evidence, the Court will permit the plaintiff to offer evidence which might have been offered in the first instance, is a matter of discretion for them, and their decision cannot bo revised by an appellate Court.

The cases of *Whitaker*v. *Carter,*4 Ired. 4GI, and *Kelly*v. *Goodbrcad,*No, Ca. Term Rep. 28, cited and approved.

Appeal from the Superior Court of Law of Pitt County, at the Fall Term, 1847, his Honor Judge Battle presiding.

The action is for slander, in indirectly imputing to the plaintiff the crime of perjury, by saying to him, when speaking in reference to the trial of an indictment against one Bryant Adams, and to the examination of the plaintiff as a witness on the trial, “You swore to a lie, and I can prove it/’ Plea, not guilty.,

In support of his declaration, the plaintiff gave in evidence, the record of an indictment against Adams for a battery on the present defendant, on which there was a *30trial and acquittal, on not guilty pleaded ; and proved that he, the plaintiff, was sworn and examined as a witness for Adams. He also gave evidence, that the day after the trial, the present defendant, speaking in reference to it, and to the examination of the plaintiff on it, said to the plaintiff, *“*you swore to a lie, and I can prove it.”

The plaintiff there stopped his case; and thereupon the counsel for the defendant insisted, that the plaintiff was bound further to shew, what evidence he gave on the trial of Adams ; so that it might appear to have been to some material point; and for the want of such proof, he moved the Court to nonsuit the plaintiff. The Court refused the motion.

Then, for the purpose of shewing that he did not intend to charge the plaintiff with perjury, but with a mistake only, and to rebut the imputation of malice, the defendant gave evidence, that on the trial of Adams, he, the defendant, was a witness for the State and swore, that Adams struck him, and that the plaintiff swore that Adams did not strike him.

The defendant, for the pui-pose of further rebutting the imputation of malice, and mitigating the damages, offered to prove also, that Adams did, in fact, strike him. To that evidence the counsel for the plaintiff objected ; and the Court refused to admit it.

The plaintiff then offered evidence, that the defendant had subsequently repeated the charge against him. The counsel for the defendant opposed its reception, on the ground, that, after having once closed his case, the plaintiff could not give evidence of malice in the defendant. But the presiding Judge admitted it, in answer to that given on the other side, for the purpose of shewing the absence of malice. There was a verdict for the plaintiff and from the judgment the defendant appealed.

*31*Stanly,*for the plaintiff, argued,

As to the first point in the case referred to, *Whitaker*v. *Carter,*4 Ired. Rep. 461. *McDonald*v. *Murchison,*1 Dev. 9.

As to the 3d point — it is submitted that to have allowed the testimony to be received which was offered by defendant, would have been, in effect, giving in evidence the truth of the words under the general issue. Referred to *Meeds*v. *Carver,*7 Red. 273. 2 *Saun, PI.*& *Ev.*812. 1 *Chit. PI.*499. *Ramsey*v. *Webb,*41 Eng. C. L. Rep. 63.

As to the 4th point, he referred to, *Parish*v. *Fite,*2 Mur. 258. *Kelly*v. *Goodhead’s*Ex. N. C. T. R. 28. *State*v. *Sparrow,*3 Mur. 487. *State*v. *Silver,*3 Dev. 332. *Brown*v. *Giles,*1st C. & P. 18, (11 E. C. L. Rep. 337.) *Rex*v. *Hilditch,*24 E. C. L. Rep. 330.

No counsel for the defendant.

Ruffin, C. J.

There are several reasons why the defendant can take nothing on his first point.

In the first place, error will not lie for a refusal to non-suit ; because the Court is not bound to do so in any case, but has the discretion to leave the matter to the decision of the jury ; except in the few cases, in which the duty is imposed by statute. The defendant should have asked an instruction to the jury, and then he might have brought his case here, for a wrong direction given, or a right one refused. In the second place, if the objection had been good at the time it was taken, it was immediately overruled by the defendant’s own proof, that the evidence of the plaintiff on the trial of Adams was material, and-, indeed, that it went to the gist of the matter. The defendant, himself, thus shews, that the error,, of which he complains, if an error at all, was- merely abstract and harmless in this case, under the facts actually existing ;• and a verdict on the merits is to be set aside, only for an error practically prejudicial.

*32But, lastly, the decision was not erroneous, but perfectly correct in itself. The plaintiff was not bound to prove more, than his declaration ought to contain. As the words did not directly import a charge of perjury, but only that the plaintiff was foresworn, it was necessary to allege, as inducement, that there was a judicial proceeding-, in which the plaintiff gave evidence as a witness, and that the defendant referred to that in making the charge. But the particular evidence given by the plaintiff is never, wc believe, set forth in the declaration ; and therefore need not be proved. In practice, plaintiffs have never been called on for such proof. The precedents contain, after the inducements and colloquium, the words spoken, and the averment, that the defendant thereby meant to charge, that the plaintiff in giving his evidence committed perjury. *Whitaker*v. *Carter, 4*Ired. 461, 2 *Chit. Pl.*621. If, indeed, the defendant had, in speaking the words, gone on to specify the matters testified by the plaintiff, and the point in which he had sw'orn falsely, then it would have been incumbent on the plaintiff to have set forth-the whole, truly, in the declaration ; and if, upon the whole thus stated and proved, the matter, to which the alleged false oath related, appeared to be immaterial, the action could not be maintained, since no intention to charge a perjury can be inferred from words, that, taken together, legally import, that there was no perjury.

But this defendant charged in general terms, that, in the evidence, which the plaintiff gave, as a witness, in the prosecution against Adams, he “swore to a lie which, connected with the inducement, the colloquium, and the innuendo, imports the charge of perjury, and imposes it on the defendant to shew what the plaintiff did swear, and that it was corruptly false. Hence, the defendant, in his plea of justification, must state the evidence given by the plaintiff, and then negative the parts, in which it Í3 *33alleged the perjury consisted, just as in an indictment for that offence. 3 *Chit. PL*1033, 1037. To this effect the language of Mr. Justice Ashurst in *Coleman*v. Godwin, is very pointed, as quoted by Chancellor Walworth- in *Power*v. *Price,*16 Wen. 450. *“*The effect of the words upon the hearers, is what is to be considered} and the determinations in the old books, are a disgrace to the law. If one charges a witness with having sworn false in relation to a particular fact in a cause, which fact would not necessarily be immaterial and irrelevant, the natural effect of the words is to convey, to those who hear them# the impression, that the witness has committed perjury í and if the defendant wishes to shew that he did not intend to impute the crime of perjury to the plaintiff, but merely that he had perverted the truth in relation to an immaterial fact, the burden of showing that the fact testified to was not material to the issue, and that it was not in-tended to impute to the plaintiff false swearing in the suit in the ordinary sense of the term, rests upon the defendant.” And that doctrine is fully sustained in *Power*v. *Price,*by the Chancellor and the majority of the Court. The plaintiff, therefore, gave all the evidence the law required of him, and it would have been erroneous to non-suit him.

In actions of this kind, evidence of the truth of the words, cannot be received under the general issue. *Smith*v. *Richardson,*Willes Rep. 20, and *Underwood*v. *Parks.*Str. 1200, are the leading cases- on< this subject. They were decided upon consultation- of all the Judges* and-have been considered ever since, as- settling the point. *Roberts*v. *Camden,*9 East. 92. Evidence of bad character may reasonably be heard in mitigation of damages; because less is due to a blemished than an unblemished' name, and one is supposed to be at all times prepared to establish his general character. But unless the defendant pleads the truth of his charge, it would be a surpriseon- the other party to allow him to give evidence of it. *34And as to its repelling the implication of malice, which is incident to the publication of a slander, it has no such effect. For, as was well observed by Mr. Justice HolRoyd in *Fairman*v. *Ives,*5 Barn. & Ald. 645, by showing the truth of the slanderous matter, which is the subject of the action, you do not show that it was not maliciously spoken or published, but merely that the party is not entitled to damages, because he is guilty of the charge imputed to him. There is often as much malice, ill will, and design to hurt, towards another, in speaking truly, as falsely, to his disparagement.

The last evidence given by the plaintiff was properly admitted as evidence in reply to that of the defendant, as mentioned by his Honor.

But if it had not been of that character, its reception could not constitute an error, for which the judgment might be reversed. The evidence was in its nature competent ; and the objection to it was solely the period at which it was offered. Now, that concerns only the orderly proceeding in trials; about which there is no positive rule of law, like those touching rights, but only a course of the Courts established for convenience and dispatch of business. To that course, the Courts generally, and very properly, adhere with strictness. But from it, they in their discretion sometimes may, and under circumstances which require it, will depart, for the advancement of justice; and an appellate Court cannot undertake to control or regulate the discretion. It is the more safely find beneficially exercised by those who preside at trials, and can best appreciate, both the inconvenience from, and, in particular cases, the necessity for, admitting an irregularity of proceeding. *Kelly*v. *Goodbread,*N. C. T. R. 28.

Per Curiam, Judgment affirmed.