#### *S. M. Dalrymple vs. Wm. Lofton.*

1. In an action of slander, where the words spoken, were, that the “plaintiff had sworn falsely in giving evidence, before a certain Justice Johnson, in a trial heard before him,” it is not necessary to aver in the declaration, that the justice had jurisdiction of the cause in which the plaintiff was sworn as a witness, or that his testimony was material. Both of these are presumed, until die contrary áppears.

2. If there be a *colloquium*referring to the trial of a cause before a Justice, in which the plaintiff was examined as a witness, and in it, it is averred, that die defendant, speaking of such trial and testimony, spoke the same words, they would be actionable. They impute a false swearing, in a court of justice, which *prima facis,*imports perjury. If these general facts so averred be proved, it is enough on the part of the plaintiff.

3. It is the right and duty of a Judge, to instruct the jury fully upon the law arising out of the facts proved — and in an action of slander, where the defendant had charged die plaintiff with having sworn falsely before a Justice, in a certain trial in which the plaintiff was examined as a witness, the defendant, on the trial of the case, had the right to have the jury instructed, whether die evidence of die plaintiff before the Justice, was immaterial to the point in issue or not. And upon the refusal of the presiding Judge so to instruct’the jury, a new trial was granted.

*Tried before*Gantt, J. *at*Newberry, *Fall Term,*1840, *who reports the facts of the case as folíolos:*

This was an action of slander, in which the jury gave a verdict for the plaintiff. The declaration contained several counts. That a suit had been tried before Jesse Johnson, Esquire, a justice, wherein William Lofton, administrator of James M. Dillard, was plaintiff, and Jeremiah Joiner, was defendant. That in the trial of the said case, the plaintiff, S. M. Dalrymple, was sworn as a witness, and gave testimony, and that it was in reference to the testimony thus given by the plaintiff, before the magistrate on said trial, that the defendant said he had not sworn the truth, that he had sworn falsely, as alleged in the declaration, and that the defendant meant to charge the plantiff with having perjured himself.

The defendant relied on the plea of the general issue, and that alone. Very many witnesses were sworn in the case, and when the evidence closed, the Counsel for defendant moved for a non-suit, on grounds similar to those taken in the grounds of appeal, — which were overruled. The Court had previously overruled the going into evidence, to show what was proved before the magistrate, *113and that, too, on an objection properly raised on the part of the counsel for the defendant.

I did decline to charge the jury as I was requested to do, because I was of opinion that the facts involved in the issue made up, were, whether the words alleged in the declaration to have been spoken, were proved, and whether the meaning given them by the inuendo, was correct; advantage, (if any could be taken,) for defects or omissions in the declaration, must be, by pleading specially, and not having been specially pleaded to, they were admitted to be true; all allegations material in a cause, which are not traversed by the defendant, are admitted to be true, and for these, judgment by *nihil dixit*may be entered up by the plaintiff. The grounds of objection noticed in this appeal, appear to me to be either on matters .immaterial and irrelevant to the issue, or such as were falsified by the evidence which was offered.

I quote the following authorities, as illustrative of the law, applicable to this case, viz : Selwvn’s N. P., p. 1160, Mid., 1164 and 1166.

In the case of *Niven*vs. *Munn,*13th. Johnson’s Reports, 48, where, in an action like the present, and a verdict for plaintiff, it was attempted to arrest the judgment on the following grounds: 1st. That it is not expressly averred that the testimony of Niven was in a cause, in which the justice had jurisdiction ; and 2dly, it is not expressly stated, that the testimony spoken of was upon a point material in the cause — -the motion failed, and the plaintiff had judgment. The two cases are very similar as to the facts, and the case quoted, shews that if the declaration in the case at bar was less full in its statements, still the omission would not be fatal.

The defendant appeals, and moves for a *non-suit.*

1. Because the averments alleged that the plaintiff was sworn as a witness for and on behalf of the defendant, on the trial before the justice, which was not proved as alleged.

2. Because it appeared, by the evidence of the plaintiff, that the testimony of the plaintiff, before the Justice, in *114relation to which he was charged with false swearing, was not material to the point then in issue.

3.Because the words proved did not support the words laid down in the declaration.

*For a Neio Trial.*

1st. Because his Honor refused to charge the jury (on being specially requested so to do,) that if the evidence given by the plaintiff, before the justice, was immaterial to the point in issue, that the action could not be sustained, giving as a reason, that the objection should have been made by the pleadings.

2. Because it fully appeared by the testimony, that the evidence given by the plaintiff before the Justice, was immaterial to the point in issue, which was a question of law, on which his Honor refused to charge the jury.

3. Because his Honor held, that under the pleadings, the defendant could not show that the evidence given by the plaintiff before the Justice, was immaterial to the point in issue, inasmuch as the defendant had pleaded the general issue.

4. Because his Honor permitted the plaintiff to prove the contents of what the plaintiff had sworn before the Justice, (although not alleged in the declaration,) and after-wards refused to decide or charge that it was material, or immaterial to the issue before the justice.

5. Because his Honor charged the jury, that the declaration contained a sufficient allegation of the cause of action, and that the evidence fully sustained the counts therein, and that the only question for them was the amount of damages.

*And in Arrest of Judgment.*

1. Because there was no averment in the declaration that the Justice before whom the plaintiff, in this suit, was sworn, had jurisdiction of the cause, and that the evidence given by the plaintiff on that trial, was material to the point in issue.

2. Because the declaration of the plaintiff in other particulars, was wholly insufficient, in law, to warrant the finding of the jury.

*115Fair for the motion.

Cited 1st Hawk. 218, 223; 1 McMull. 499, *Hamilton vs. Langley.*He contended that the plaintiff was bound to shew the materiality of the testimony.

Take, said Mr. F., the evidence of Esquire Johnson, and the testimony was shewn to be immaterial. Cited 20 J. R. 341; cannot recover where immateriality appears. Cited also, 13 J. R. 81; 20 *ib.*'344 ; 9 Cow. 31; 1 Wend. 475 ; 12 *ib.*500; 16 *ib.*450.

Pope & Caldwell, contra.

Cited 5 J. R. 188, as to actionable words ; 1 Bail. 595, words explanatory; Starkie on Lib. 85, 86 ; 11 Wend. 38 ; 16 do. 450. The burthen rests on the defendant, to shew the immateriality of the evidence.

(Note. — Tlie declaration, or a copy, to malte this case more intelligible, should accompany tlie report of this case — but the Reporter has never been furnished with one, and consequently cannot publish it. — i?ep.)

*Caria, per*

O’Neall, J.

This was an action of slander, for words spoken. The declaration sets out, by way of inducement, that a case had been pending before and tried by Jesse Johnson, one of the Justices of the quorum for Laurens district, in which the defendant, as administrator of James M. Dillard, deceased, was plaintiff, and Jerry Joiner was defendant; and that this plaintiff, on the trial of that case, was examined as a witness; and that the defendant, in a conversation of and concerning that suit, and of the testimony given by the plaintiff, said, “ you did not swear the truth in the case of myself, administrator of James M. Dillard, deceased/ and Jerry Joiner;” “you swore falsely before Jesse Johnson, Esq., on the trial of the case of myself vs. Jerry Joiner;” “you swore a lie before Jesse Johnson, Esq., on the trial of the case of myself and Jerry Joiner.” These words were also charged as ■uttered in the third person; and other words of similar import, were also charged. There was no averment in the declaration, that the Justice had jurisdiction of the case, or that the testimony of the plaintiff, to which the words referred, was material to the point in issue before the Justice. On the trial in the first instance, when the p laintiff was about going into proof of the testimony giv*116en by him, and as to which the words were spoken, the defendant’s counsel objected to the proof, on the ground that there was no averment of the materiality of such testimony in the declaration, and hence no such proof could be received. This objection was sustained, on the ground that it was wholly immaterial whether the testimony was or was not material. In a subsequent stage of the case, it, however, appears, that Esquire Johnson stated the plaintiff, in answer to a question put by the defendant, “ whether the $15, the subject matter of the suit was placed in the store of Dillard *&*Dalrymple *V’*answered, “ that it was not, that he knew of.” At the closing of the plaintiff’s, ease, a motion was made for non-suit, on various grounds, which have been again urged in this Court. In the de-fence, the fact that the plaintiff proved before the Justice, and about which the defendant alleged the false swearing, was brought out from John C. Johnson, who said the question asked of the plaintiff was, “ whether *the*$15, for which Joiner held a receipt against the firm of Dillard *&*Dalrymple, had gone into the lower firm 1” “Dalrymple said, not as he knew of.” From the pleading and the testimony, I suppose that Joiner was sued on a demand which he owed to Dillard alone, and that he set up, by way of discount, or payment, the receipt of Dillard *&*Dal-rymple, for $15. Thus stated, we can see and understand what was perhaps the issue before the Justice, and the application of the proof. The defendant contended that the testimony given by this plaintiff, and of which he spoke, was immaterial, and hence, that in law, there was no slander. The presiding Judge held, that the words imputed perjury, and whether the testimony of the plaintiff was material, or not, on the trial before the Justice, was a wholly immaterial question; and declined to charge the jury that “ if the evidence given by the plaintiff' was immaterial to the point in issue, that the action could not be maintained.” The jury found a verdict for the plaintiff of $500 damages.

The grounds taken in arrest of judgment, cannot avail the defendant. It is very clear, on authority, that it is not necessary to aver in the declaration, that the Justice bad jurisdiction of the cause in which the plaintiff was sworn *117as a witness, or that his testimony was material. Both of these are presumed, until the contrary appears. 2 Blackford, 242; *Niven vs. Munn,*13 J. R. 48; *Chapman vs. Smith,*13 J. R. 78; *Crookshanks vs. Gray,*20 J. R. 344; *Hamilton vs Langley,*1 McMull. 498. This last authority is indeed decisive of the grounds in arrest of judgment, for it is the judgment of our own Court of Appeals, in December, 1835, upon the points now made.

The 1st ground of non-suit cannot help the defendant. The testimony is not explicit, that this plaintiff was sworn as a witness for the defendant, in the cause before the Justice, but it may be, for aught which appears on the Judge’s notes, that such was the fact, and after verdict, unless it be plain that no such testimony was given, it is in vain to ask for a non-suit. The 3d ground for non-suit was not argued here; and we may, therefore, conclude, that it was intended to be abandoned. If, however, it was not, it is only necessary to refer to the Judge’s notes, to see that the words were, in substance, proved as laid. The 2d ground of the motion for nonsuit and all the grounds for new trial relate to the same question, whether the materiality of the testimony given by the plaintiff to the issue before the justice, was, in any shape, or by either party to be inquired into on the trial of this case.

There is a wide distinction between words, which, in themselves, import a crime, and words, which in themselves have not that meaning; but which have that effect by their reference to some extrinsic circumstances. In the first class, if the person uttering the words does not, at the time, add other words, which apply them to a transaction out of which no crime could arise, or if the witnesses do not understand them as so applying, then no matter to what subject the party speaking really intended to apply them, the words are actionable. *Pegram vs. Styrom,*1 Bail. 595. In the second class, the words are actionable by being connected with the extrinsic circumstances, which raise the belief that a crime was imputed. To say of one “you swore a lie before Esq. Lampkin,” without a colloquium is not actionable. For it may be that the oath was extra judicial. But if there be a colloquium, referring to the trial of a cause before a justice in which the plain*118tiff was examined as a witness, and in it it is avered that the defendant speaking of such trial and testimony spoke the same words, they would be actionable. For under such circumstances, they impute a false swearing in a court of justice, which *prima facie*imports perjury. If these general facts so averred be proved, it . is enough on the part of the plaintiff. For, as was said by my brother Earle, in the case of *Hamilton vs. Langby,*“the presumption is that what a witness swears is material, and if the defendant expects to avoid a recovery on that ground, he must show that *the particular oath charged to be false was on an immaterial point."*If the defendant cannot show that in point of fact, no perjury could have been committed in the transaction to which he alluded, then, he is answerable for the legal consequences of slander, no matter what might have been his intention. But if the defendant can show, that perjury could not arise out of the transaction to which he alluded, then, I think, he will have shielded himself frdm the consequences of his rash speaking. For the ground, on which the action of slander for words actionable, *per se,*proceeds is, “that if true they would subject the plaintiff to infamous, legal punishment.” If the defendant is able to show that even if his words be true, that yet no crime could exist, how can it be pretended that the plaintiff in slander can be entitled to recover damages, when the ground of the action is removed'? To affirm this .question a person must bélieve that a building can stand after the foundation has been swept away. By way of illustration; let us suppose, that the defendant could show, that Mr. Justice Johnson who tried this cause and whose jurisdiction is limited to matters of contract, had issued a summons in slander, and that the plaintiff, on the trial of that case, had been examined as a witness, and that it was of his testimony thus given the defendant spoke, when he uttered the words, would not such a showing as satisfactorily show, that there could not arise an imputation of perjury from the words spoken, as would be the case, if the plaintiff, as a witness, had never been sworn or examined? I think'so. For if the justice had not jurisdiction, in law there was no suit, no oath, no examination. So if the testimony given was clearly imma*119terial to the issue, it follows that, as one of the ingredients of perjury is wanting, the plaintiff’s words, although *prima facie*importing a crime, yet, when sifted, cannot have that meaning, because out of the matter to which they referred there could not be perjury. I should hence conclude from general reasoning, that the defendant might inquire as to the materiality of the testimony given by the plaintiff on the trial before the Justice, and show, if he could, that it was wholly immaterial. This I think consistent with all authority.

In *Parmer vs. Bogan,*So. Ca. Rep. (Cheves,) 52, (which is very imperfectly reported, and which will, I hope, be more fully done in a note to this case,) the defendant argued, that he was entitled to a nonsuit, on the ground that the materiality of the plaintiff’s testimony, to which the defendant’s words referred, was not shown. The Court in the opinion did not contest the ground, but showed that the materiality was sufficiently established. The plaintiff’s testimony in that case was given in the Court of Common Pleas, and we all *then*thought, that it was sufficient for the plaintiff to show that in fact a suit was tried in the Common Pleas, in which the plaintiff was sworn and examined as a witness: but as it was unnecessary for the decision of that case to give that opinion, it was withheld. That opinion is, however, consistent with this. For there, there was no attempt on the part of the defendant to show the immateriality. His complaint was that the plaintiff’s proof was not enough to go to the j ury.

I have referred to the case from 2d Blackford’s Rep. 242; and it is full to the point, that if the materiality be not shown by the plaintiff, it is not a ground of non-suit, and so far, I fully agree with it. There is nothing in it which impinges the doctrine that the defendant may inquire as.to the immateriality, and if it is made out by the defendant, that it would be a good defence. In *Chapman vs.*Smith, 13 J. R. 78, the great Judge,.(Mr. Justice Spencer) who delivered the opinion of the Court, after overruling the objection that the Justice’s jurisdiction was not averred in the declaration and the objections to the verdict, states the precise rule for which I am contending. “On the trial (he says) it would have been competent to either party, to inquire in reference to what part of the evi*120dence given the words were spoken; and if it had appeared, that they were spoken of evidence entirely immaterial, it *is not to*be presumed that the plaintiff below would have obtained a verdict.” *ibid,*81. In *Crookshanks vs. Gray,*20 J. R. 344, the precise point was made, and decided. Woodworth J. speaking of it said, “on the trial of this cause it was competent to either party to inquire, in reference to what part of the evidence given, the' words were spoken, and if they.were spoken of evidence entirely immaterial the plaintiff cannot recover.”. Ibid. 349. In *Power vs.*Price, 16 Wend. 450, in a note, the Chancellor states the rule to be, “where the words spoken are such as naturally to make the impression upon the minds of the hearers, that the party spoken of has been guilty of the crime of *perjury,*it is not incumbent upon the party prosecuting an action for the speaking of such words, to prove affirmatively that the testimony given by him was material, but the burthen of proving its immateriality, and that there was no intention to impute the crime of perjury, rests with the defendant.” After these authorities, the rule for which I am contending may be considered as definitively settled. It only now remains to apply it to this case. The defendant, under it, has no pretence to call for a non-suit. The case was *prima facie*made out by' proof of .the publication of. the words, in reference to the trial before Esquire Johnson, in which the plaintiff was examined as a- witness. If it had appeared from the plaintiff’s proof, that the testimony was to an immaterial point, then the plaintiff ought to have been non-suited. But it is not clear, from the proof of the magistrate, (which was the testimony on' the part of the plaintiff,) that such was the fact. In a subsequent stage of the case, and on the part of the defendant, it may be, that the proof under the pleadings showed that the testimony could not have been material; for it is plain,- that the case before the Justice, from the statement in the declaration, was in the right of Dillard alone, while the proof given, applied to a defence which could only be legally set up against Dillard *&*Dalrymple, or Dalrymple, as survivor of the firm. This was, however, to be considered by the jury; and the defendant had., therefore, the right to have *121them instructed, that if they believed the fact to be that the testimony given by the plaintiff, and to which the defendant’s words referred, was immaterial, that then they could not be regarded as legal slander. In *Christie vs.*Cowell, 14 Petersdf. Abr. marg. p. 683, the words were, “he is a thief, for he has stolen my beer.” “It appeared that the defendant was a brewer, and that the plaintiff had lived with him as a servant, in the course of which service he sold beer to different customers of the defendant, and received the money for the same, for which he had not duly accounted. Lord Kenyon directed the jury to consider whether these words were spoken in reference to the money received and unaccounted for by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer; for if they referred to the money unaccounted for, that being a mere breach of contract, the word, thief, would not make it actionable.” That case, perhaps, goes beyond what I think the true rule as to words, in themselves, imputing a crime. For in such a case, there must be something to qualify the legal sense of the words attending their publication. Yet, where the words, as in this, case, depend upon something extrinsic to make them slanderous, it furnishes the true and proper rule; for, in such a case, it is for the jury to say, whether the words applied to immaterial“testimony, and if they did, they should have been told, as Lord Kenyon told the jury, in *Christie vs.*Cowell, that they were not actionable. This instruction the presiding Judge refused to give, supposing that under the pleading, the question, whether the testimony given by the plaintiff before the Justice, was immaterial, could not arise. In this he was clearly mistaken; for the question arose on the proof, not on the pleading. And, as in every other case going to a jury, the parties are entitled to have them fully instructed upon the law arising out of the facts proved. This was not done, and as a matter of right, the defendant is entitled to a new trial, the motion for which is, therefore, granted.

JOHN BELTON O’NEALL.

We concur. J. S. Richardson, Josiah J. Evans, B. J. Earle, A. P. Butler.