#### JOSEPH RINEHEARDT *vs.*FELTON W. POTTS.

Where, in speaking of a trial before a magistrate, in which the plaintiff had been a witness, the defendant said that “he (the plaintiff) had sworn falsely,” these words import that the plaintiff had committed perjury and are, in themselves, actionable.

This Court cannot act upon affidavits offered in the Court below. It is the province of that Court exclusively to determine the facts, and the Supreme Court can only review so much of the judgment, as involves matters of law, strictly.

Appeal from the Superior Court of Law of Macon County, at the Fall Term, 1844, his Honor Judge Battle presiding.

This was an action on the case for slander. The words charged in the declaration and proved were, that the defendant, in speaking of the testimony given by the plaintiff, on the trial of a warrant before a magistrate against the defendant and two others, Davidson and Enloe, in which they were charged with a forcible trespass in taking a horse, said “he had sworn falsely.” The defendant relied upon the plea of justification, and introduced testimony, tending to establish the truth of the charge, which was met by testimony on the part of the plaintiff, tending to prove, that the evidence, which he gave before the magistrate, was true. It appeared on the investigation of the charge against the defendants for the forcible trespass, that the defendant, Potts, was an officer and as such had levied an execution on a horse, as the property of one Wikle, and taken him into possession and delivered him to Davidson to keep ; that he was secretly taken from Davidson’s stable and was afterwards found in the stable of the plaintiff’s father, with a chain locked round his neck and fastened to one of the logs of the stable; that Potts, Davidson and Enloe went there to get him, but were forbidden by the plaintiff's mother to take him; *406and that Davidson and Enloe, notwithstanding such prohibition, prized up the logs of the stable and took him out, the plaintiff and his mother both being present and objecting to it. The plaintiff swore, that Potts assisted in getting the horse from the stable, and in that it was that the defendant, Potts, said he committed the perjury. In his argument to the jury, the defendant’s counsel contended, that neither Potts, Davidson nor Enloe had committed any forcible trespass, for that in law they were justified in taking the horse in the manner they did, but no point of law was raised to the Court, that the plaintiff could not have committed perjury on the trial of the warrant, and that therefore the words were not actionable. So far from it, the whole argument of the counsel was addressed to the jury, insisting that the evidence sustained the plea of j ustification. The j ury returned a verdict for the plaintiff. The defendant moved to set it aside, upon an affidavit, the substance of which was, that, in making up their verdict, each juror put down what he thought should be the amount of damages, that these several sums were added up, and the aggregate was divided by twelve and the quotient determined upon as the verdict. The Court refused the motion. The defendant then moved for a new trial, because the Court had not told the jury, that the words were not actionable *;*but the Court held, that, as the objection had not been taken before, it could not be raised for the first time on a motion for a new trial. The motion was accordingly refused and judgment given for the plaintiff, from which the defendant appealed.

*N. W. Woodfin*and *Edney,*for the plaintiff.

*Francis,*for the defendant.

Daniel, J.

In a *colloquium,*relative to a trial before a magistrate of a State’s warrant against the defendant and two others, when and where the defendant had been *407sworn and examined as a witness, the defendant said “ That Rineheardt (the plaintiff) had sworn falsely.” These words were, in law, to have that sense and meaning placed upon them by the Court and jury, that the bystanders affixed to them. The hearers of the said words spoken could not, from the subject matter of the conversation, understand the defendant to mean any thing else, than that the plaintiff had committed perjury, in his evidence on that trial. The words, spoken under the circumstances they were, were actionable of themselves, for they, in effect, charged the plaintiff with having committed wilful and corrupt perjury.

*Secondly:*The defendant offered the affidavit of Dow-dle, to shew to the Court, that the jury had misbehaved themselves in the manner of making up their verdict; and, on this affidavit, he moved that the verdict should be set aside and a new trial granted. The case sent up here only states, *“*that the Court refused the motion.” We do not know upon what grounds the Judge refused the said motion; it may have been because he did not believe Dowdle. The defendant did not pray the Court to give the reason for rejecting the motion; and, as we cannot see that it was in fact over-ruled *against law,*we cannot say that there was any error in the judgment of the Judge upon this part of the case. We have often stated, that this Court cannot act upon affidavits offered in the Court below. It is the province of that Court exclusively to determine the facts, and we can only review so much of the judgment, as involves matters of law, strictly. We think the judgment must be affirmed.

Per Curiam. Judgment affirmed.