#### Carlock vs. Spencer & Wife.

Upon a demurrer to a plea in bar;, the court will see that there is a good declaration.

By the rules of the common law, where a person charged another with swearing a lie, or being forsworn, &c., an averment of special damage, or colloquium concerning a judicial proceeding, &c., is held to be essential.

The distinction seems to be, that where the natural consequence of the words spoken, is a damage,' or if they contain an imputation of a crime liable to.punishment, they are actionable, and neither a colloquium nor the averment of special damage is necessary.'

■But under our statute, Eov. Stat. chap. 141, where one person charges another with having sworn falsely, &c., the words are actionable in themselves, and it is not necessary to aver, or prove, special damage, or a colloquium.

Where one charges another with having “sworn a lie,” the words are within the provision of the statute.

Where a witness was permitted to make a statement to the jury, which could not possibly have had any influence upon their minds, prejudicial to the party objecting fo it, the decision of the court, overruling the objection, whether right or wrong, constitutes no ground for reversing the judgment. '

Where, at the instance of one party, the court gave the jury an abstract instruction, or a charge concerning a matter not in issue, or not material, it was not erroneous for the court, at the request of the other party, to state to the jury that the instruction *13was abstract, or irrelevant: the error, if any, consisted m giving the instruction, ami not in its withdrawal.

Action for slander: declaration charges that defendantmaliciously published of plaintiff that sho “swore a lieplea of not guilty: verdict, “we the jury find that defendant spoke and published the words in the declaration specified” &c. — Held that a finding ot malicious intent was clearly implied in the verdict, and that it was good.

Judgment for plaintiffs thus: It is therefore considered, &e. that plaintiffs recover of defendant the sum of, &c., “together with all the costs herein expended” — Held that the language of the judgment must be understood to embrace all the costs only to which plaintiffs in the action were entitled — such is understood to have been the principle settled in Brown’s ad. vs. Hill &Co. 5 Ark. R. 78.

In actions for slander, under Rev. Stat.. chap. 141, the same formality is required in pleas of justification that existed prior to the passage of the act.

Appeal from the Circuit Court of Madison county.

Case, for slanderous words, determined in the circuit court of Madison county, at the May term 1845, before the Hon. S. G. Sneed, judge.

The declaration, in substance, follows:

“ James Spencer, and Sarah Spencer, his wife, complain of John Carlock of a plea of tresspass on the case, &c. For that whereas the said Sarah Spencer is a good, true, faithful, honest and lawful citizen of, &c., and as such has always conducted herself; and until the committing of the several grievances, by the said defendant, John Carlock, as hereinafter mentioned, was always respected, and esteemed, by all her neighbors, and other good citizens to whom she was in anywise known, to he a person of good name, fame and credit, to wit, at, &c.: and the said Sarah Spencer hath not been guilty, or, until the time of the committing of the said grievances by the said defendant as hereinafter mentioned, been suspected to be guilty of perjury, or any such crime. Yet, the said defendant well knowing the premises, but greatly envying the happy state and condition of the said Sarah Spencer, and contriving and wickedly intending to injure the said Sarah in her said good name, fame and credit, and to bring her into public scandal, infamy and disgrace with and among all her neighbors, and all those to whom she was in anywise known, and to destroy the peace and *14happiness of the said James Spencer, her husband, and to cause it to be suspected and believed by those her neighbors and others, that she, the said Sarah, was guilty of perjury, and to subject her to the pains and penalties of the laws of the said State made and impleaded upon persons guilty thereof; and to vex, harrass, oppress,, defame, degrade and impoverish said plaintiffs, heretofore, to wit, on, &c., at, &c., in a certain discourse which the said defendant then and there had with one Joseph Ballinger, and in the presence and hearing of divers other good and worthy citizens of said county, and concerning the said Sarah, and in the presence and hearing of of the last mentioned citizens, he the said defendant then and there spoke and published the false, scandalous and malicious words following, that is to say, ‘she,’ meaning the said Sarah Spencer, ‘swore a lie.’

And afterwards, to wit, on the day and year aforesaid, at, &c., in a certain other discourse, in the presence of. divers other good and worthy citizens of said county, then and there had of and concerning the said plaintiff, Sarah, he the said defendant then and there in the presence of the last mentioned citizens, falsely and maliciously spoke the false, scandalous, malicious and defamatory words following, that is to say, ‘she,’ meaning the said Sarah, ‘swore falsely.’

And afterwards, to wit, on the day and year aforesaid, at, &c., in a certain other discouse, in the presence and hearing of divers other good and worthy citizens of said county, he the said defendant, further contriving and intending as aforesaid, falsety and maliciously spoke and published the false, scandalous and defamatory words following, that is to say, ‘Sarah Spencer, (meaning the said Sarah,) on the trial before Esquire Roberson, meaning on a certain trial before one Michael Roberson, a justice of the peace for said county, of a charge of robbery against one John Carlock and others, in which trial the said Sarah was examined, and testified as a witness, ‘swore a lie;’ meaning the said Sarah, when testifying in said case, had committed the crime of wilful and corrupt perjury.

And afterwards, to wit, on the day and year aforesaid, at, &c., in a certain discourse which the said defendant then and there had of and concerning the said Sarah, in the presence and hearing of *15the last mentioned citizens, he the said defendant further contriving and intending as aforesaid, then and there spoke and published the false, scandalous, malicious and defamatory words following, that is to say, ‘she,’ meaning the said Sarah, ‘swore a lie before the grand jurymeaning that the said Sarah, when examined before the grand jury as a witness on behalf of the State, in relation to a charge of robbery then pending before said jury against one John Carlock and others for investigation, had wilfully, maliciously and knowingly committed the crime of wilful and corrupt perjury.

And afterwards, to wit, on the day and year aforesaid, at, &c.„ in a certain other discourse which he the said defendant then and there had of and concerning the said Sarah, in the presence and hearing of divers other good and worthy citizens of said county, falsely, and maliciously spoke and published the false, and scandalous words following, that is to say, ‘Sarah Spencer swore a lie meaning the said Sarah swore falsely: to the damage of the plain tiffs five thousand dollars, therefore they sue.” — (Filed and writ issued 4th April, 1845.)

The defendant filed four pleas: first, not guilty; to which issue was taken: second, that the cause of action did not accrue within one year next before the commencement of the suit; to which there was replication, and issue: and two pleas of justification, in substance, as follow:

•“ And the said defendant comes, and defends &c., and prays judgment if the plaintiffs their action aforesaid ought to have or maintain; because he says that before the time when the supposed defamatory words are alleged to have been spoken by the said defendant, to wit, on the 5th day of July 1843, at the county aforesaid, the said defendant and one Jesse Ballinger, and defendant’s wife, were arrested for a supposed trespass, and an investigation was then and there had of and concerning the said supposed trespass, before M. Roberson, one of the justices of the peace in and for said county, and the said defendant says that the said Sarah, at the time and place aforesaid, was produced as a witness before the justice aforesaid, and that she was then and there duly sworn, by the justice aforesaid, to testify the truth, the whole truth and nothing *16but the truth, in relation to the aforesaid supposed trespass; the siid justice then and there being duly commissioned, and having full power and lawful authority to administer the said oath to the sáid Sarah; and the said defendant ávers that the said Sarah, then áñd there upon her oath, administered as aforesaid, did wilfully had 'corruptly testify, depose and swear before said justice, that this defendant, and wife, and one Jesse Ballinger had robbed Fredrick Ballinger of all his property,- and left him nothing to go upon : whereas in truth and in fact the said Fredrick Ballinger was ndt robbed by the said defendant & wife & Jesse Ballinger,nor eithér nor iiny of them. And so the defendant says that the said Sarah in deposing, testifying and swearing before said justice at the time ánd place aforesaid, wilfully perjured herself and swore a lie; and was then and there guilty of and committed wilful perjury; wherefore the said defendant, at the time and place mentioned in said declaration, spoke and uttered the words therein mentioned of and concerning the said Sarah, as the said defendant lawfully might, for the cause aforesaid, and this he is ready to verify; wherefore fee.”

“ And the said defendant comes and defends fee., and prays judgment if the said plaintiffs their action aforesaid ought to have or maintain, because he says that before the time when the supposed defamatory words are alleged to have been spoken by the said defendant, to wit, on the 5th day of July 1843, at the county aforesaid, the said defendant and one Jesse Ballinger were arrested for a supposed trespass, and an investigation was then and there hád of and concerning the said supposed trespass, before M. Roberson Esqr., one of the justices of the peace for the county aforesaid, and the defendant says that the said Sarah, at the time and place aforesaid, was produced as a witness before said justice, and that she was then and there duly sworn by the said justice of the peace to testify the truth, the whole truth and nothing but the truth, in relation to the said supposed trespass, the said justice of the peace then and there being duly commissioned, and having full power and lawful authority to administer the said oath to the said Sarah; and the said defendant avers that the said Sarah, then a.nd there, *17upon her oath, administered as aforesaid, did wilfully and corruptly testify, depose and swear, before the said justice, that he, meaning one Frederick Ballinger, whose property. was alleged tb have been trespassed upon by taking, begged them, meaning the said defendant and one Jesse Ballinger, all the time not to rob him, meaning thereby that the said Frederick Ballinger, at all times, begged them not to take his property. Whereas in truth and in fact the said Frederick Ballinger did not at all times,- nor all the' time, beg them not to take said property. And so the defendant says that the said Sarah, in deposing, testifying, and swearing before said justice of the peace, at the time and place aforesaid, wilfully perjured herself, and swore a lie, and was then and there guilty of, and committed perjury ; wherefore the defendant, at the time and place mentioned in said declaration, spoke and uttered the words therein mentioned of and concerning the said Sarah, as the said defendant lawfully might for the cause aforesaid; and this said defendant is ready to verify, &c.”

To these two pleas plaintiffs’ counsel demurred, and assigned as causes of demurrer to the first: “ 1st, it is not shown in said plea whether said defendant and Jesse Ballinger were arrested by virtue of legal process, nor is it shown that they were arrested by an officer legally authorized to make the arrest: 2d, it is not shown that said justice Robinson had jurisdiction of the offence for which they were arrested, but upon the contrary the plea affirmatively shows that he had no jurisdiction thereof, and therefore he could not legally administer an oath to wi tnesses in that behalf: 3d, it is not shown that said plaintiff, Sarah, was sworn as a witness in the case upon the Holy Gospel, or how she was sworn: 4th, it is not shown that the said justice reduced her testimony to writing, nol-is it shown what her entire testimony was : 5th,- the plea does not show whether it was intended as an answer to the whole declaration or only á part thereof.”

To the second plea was assigned as causes of demurrer, in addition to the above: “ that said plea is uncertain in not showing that the facts alleged therein to have been falsely deposed were material to the subject matter in controvcrsoy : that the plea is defective in *18not averring at what time the said Frederick Ballinger, did not beg. the said, defendant and his wife, and the said Jesse, not to rob him the said-Frederick: and, the testimony of the said Sarah, as shown by the plea, appeal’s affirmatively therein not to have been material to the issue.”

The court sustained the demurrer to both pleas of justification ; the cause w-as then submitted to a jury on the issues to the pleas of not guilty and statute of limitation; they returned as their verdict:“we the jury do find the defendant guilty of speaking and publishing the words in the declaration specified, and do assess the plaintiffs’ damage to the sum o£ seven hundred dollars and judgment was rendered thus: “ It is therefore considered by the court, that the said plaintiffs have and recover of and from the said defendant the aforesaid sum of $700, so assessed as aforesaid, together with all the costs hei'ein expended.”

Pending the trial, defendant took two bills of exceptions, from the first of which it appears that: “ the plaintiffs,, to sustain the issues on their part, introduced a witness who deposed that some time in the fair of the year 1844, he was at work with defendant, and that defendant told him that plaintiff, Sarah, swore a lie, and he could prove it, and wished some one would tell plaintiff James Spencer, so : and that on a former occasion, more than twelve months next before the commencement of this suit, defendant had repeatedly uttered the same language in his presence. Cross examined, he further said, that in the same conversation of which he spoke as having taken place in the fall of 1844, while at work with defendant, defendant also stated that the lie was sworn in a suit, before M. Roberson Esqr. for robbery, by old Mr. Ballinger against defendant and one Jesse Ballinger — that defendant said plaintiff Sarah had sworn that they had robbed the old man.”

“ Plaintiffs also called another witness, who stated that defendant had told him that plaintiff, Sarah, had sworn a lie, but does not recollect whether it was within twelve months next before the commencement of this suit or not; that afterwards, he thinks it was in July last, he held a conversation with defendant, in regard to other matters, in which allusion was ¡nade to the first conversation, but *19he does not recollect the words. Plaintiffs then asked witness to give the substance of the conversation, to which defendant objected, contending that witness should give the language, and not the substance of the language used by defendant, but the court overruled the objection, and permitted him to depose, as nearly as he could recollect, the substance of what was said: and the witness did depose that he could not recollect the precise language used, and could not give the substance, but that it related to the first conversation; to which opinion of the court in overruling said objection, defendant objected, and prays this his bill of exceptions, which contains all the evidence given in the cause, to be signed, &c.”

From the second bill of exceptions it appeal's that, at the request of the defendant, the court instructed the jury generally, and as follows: “ that they had two issues to try — not guilty, and statute of limitation, and although much had been said by counsel in relation to what could have been proven if the defendant had been permitted to justify, that the justification spoken of by counsel had nothing to do with the issues they had to try — the one being not guilty, and the other that the words were not spoken by the defendant within one year next before the commencement of the suit. Defendants’ counsel then asked the court to instruct the jury, further, that if they believed from the evidence that the words proven, implied that plaintiff, Sarah, was guilty of perjury, but if they find also from the evidence that in the same conversation other words were added, showing that no perjury could have been committed in the matter alluded to, they may find for the defendant, which instruction the court gave. The plaintiff thereupon asked the court to instruct the jury that the instructions given was an abstract preamble of law; and the court so instructed the jury — that the court could not see their relevancy, and from the evidence before the court, upon the state of pleadings, the instructions were abstract, to which defendant excepted” &c. Defendant appealed,

D. Walker, for appellant.

The slanderous woi'ds laid in the several counts of the declaration are not actionable within themselves; as to say “A. swore a lie;” *20the authorities abundantly show that in such cases it is indispensably necessary that the declaration should contain a colloquium in relation to some judicial or other legal proceeding, wherein a legal oath was administered; and that the speaking of the words should be in a conversation in relation to such proceeding. 11 Wend. 38. 1 Caine's Gases 347. 8 Johns. R. 109. “ He swore false before squire Andrews and I can prove it” without a colloquium is not actionable. 1 John. R. 505. 2 J. R. 10. 20 J. R. 344.

Prior to the enactments of our statutes it was necessary that the words should impute perjury directly, or that the words be spoken in a conversation concerning a judicial proceeding. Our statute extends the l’emedy to other legal as well as judicial proceedings. See Rev. St. 729. But in no wise affects the forms of pleading, or supersedes the necessity of disclosing therein, the proceeding whether legal or judicial, in which the false swearing is alleged to have taken place.

The first assignment of error presents this question: The demurrer of the plaintiff to the third and fourth pleas, which was ,not with-; drawn, questions the sufficiency of the declaration under the well established rule, that upon demurrer to a plea in bar, the court will see that there is a good declaration. Baldwin vs, Cross, 5 Ark. R. 510.

The second point presented for the consideration of the court, is, that the court permitted a witness to give the substance of a conversation without giving the language used by' the defendant. In this there was manifest error. See 2 Phillips, p. 97. 5 Cowen, 513.

The errors assigned questioning the correctness of the instructions given to the jury are sustainable by numerous authorities. The whole conversation had gone to the jury; that conversation and the words spoken related to a trial between private citizens upon a charge of robbery. At the instance of the defendant the court instructed the jury “that if they believe from the evidence that the words proven implied that the plaintiff, Sarah, was guilty of perjury, ]but if they find also from the evidence that in the same conversation *21.other words were added, showing that no perjury could have been committed in the matter alluded to, they may find for the defendant.” But thereupon destroyed the whole effect of that instruction by instructing the jury “that the instruction asked for thedefendant was an abstract preamble of law and had no relevancy to the case.” Thus to have withdrawn the defendant’s instruction from the consideration of the jury was clearly erroneous. See 6 Monroe, 131. •2 Pirtle’s Digest 407. 5 Mo. R. 21. 7 Wend. 439. 9 Cowen 30. Starkie’s Ev. 1143.

The verdict of the jury is special, finding only that the defendant did speak the words, without finding the intent with which the words were spoken. This is not a sufficient finding to warrant judgment. A venire de íiowo must be awarded. Holman’s Digest, 544. 4 Haywood, 252.

Malice is essential to the offence, of which the jury are the exclusive judges. 2 Starkie’s Ev. 883. The jury must find the intent. 2 Starkie’s Ev. 740.

It is error to render judgment for “all the costs in the case.” The judgment should be for the plaintiffs’ costs. 3 Ark. R. 126. 5 Ark. 78.

Roane & Reagan, contra.

Cross J.,

delivered the opinion of the court.

James Spencer and Sarah Spencer, his wife, brought an action on the case for slanderous words spoken, against John Oarlock, the appellant, in the Madison circuit court, and in their declaration, containing several counts, charge him with having spoken and published “of and concerning the said Sarah, the false, scandalous and malicious words following, that is to say, she (meaning the said Sarah Spencer) swore a lie.” Oarlock in his defence, after pleading the general issue, filed two pleas of justification to which a demurrer was sustained, and the first question presented grows out of this decision of the court sustaining the demurrer. It is contended that, although the words as laid may be in themselves actionable, *22as there is no averment of special damage, or allegation that they were spoken in reference to a judicial or legal proceeding, the declaration is defective and should have been so adjudged upon the demurrer. It is clear that the sufficiency of the declaration was fairly in question upon the demurrer to the pleas of justification. The rule is well established that upon a demurrer to a plea in bar the court will see that there is a good declaration. Baldwin vs. Cross, 5 Ark. R. 510. It is equally clear that in the case of words not in themselves actionable, it was necessary prior to the act of the Legislature, approved Dec. 13,1837, to aver special damage, or to lay them with a colloquium. By the rules of the common law, where a person charged another with swearing a lie, or being foresworn &c. an averment of special damage or colloquium concerning a judicial proceeding &c. is held to be essential. See 6 Bac. Abr. 207, title Blander, letter B. 2 Bibb’s R. 319. The distinction seems to be that where the natural consequence of the words spoken is a damage, or if they contain an imputation of a crime liable to punishment, they are actionable and neither a colloquium or the averment of special damage is necessary. 6 Bac. 205. 3 Bos. fy Bid. 374. The rules of the common law, however, so far as the question before us is concerned, ceased to exist in this state with the passage of the act of 1837, which expressly provides that “it shall be actionable to charge any person with swearing falsely, or with having sworn false, or to use, utter or publish words of, to, or concerning any person, which in their common acceptation amount to such a charge, whether the words be spoken in a conversation of and concerning a judicial proceeding or not.” See Rev. Stat. 729. The obvious design of the legislature by this provision was the suppression of verbal slander in a greater variety of forms than as the law then stood, and at the same time to simplify the means of redress. Under its operation, in the case of slanderous words which it embraces, there would be no necessity for proof that they were “ spoken in a conversation of and concerning a judicial proceeding,” nor would it be necessary to prove special damage, and hence the averment of either the one or the other would be mere surplusage.’ In the .case before us, the words laid in the declaration are, we think, *23fully within the meaning of the provision referred to. are in them selves actionable under its operation and no colloquium was necessary.

The next question presented is whether the court erred in per-initting a witness to give the substance of a conversation without giving the language used by the defendant. From a bill of exceptions taken on the trial and composing a part of the transcript of the record, it appears that two witnesses only were examined. The-first established the speaking of the words substantially as laid in the declaration, and the second on his examination stated “that said defendant had told him that plaintiff', Sarah, had sworn a lie, but does not recollect whether it was in twelve months next before the commencement of this suit — that afterwards, he thinks in July last, he held a conversation with defendant in regard to other matters in which allusion was made to the first conversation.” At this stage of the testimony, the bill of exceptions shows that an objection was interposed by the appellant on the ground that the witness should give the language and not its substance, which objection was overruled by the court, and the witness went on to state “that he could not recollect the precise language and could not give the substance but that it related to the first conversation.” This being all the testimony given by the witness, it could not possibly have had, as we conceive, any influence upon the minds of the jury prejudicial to the defendant, ,and hence the decision of the court, whether right or wrong, constitutes no just ground for a reversal of the judgment.

Another bill of exceptions taken on the trial of the cause shows that after closing the evidence the appellant by his attorney asked the court to instruct the jury, first, generally, as to the law applicable to the case which was done accordingly, and secondly, “that if they believed from the evidence that the words proven implied that the plaintiff Sarah was guilty of perjury, but if they find also from the evidence that in the same conversation other words were added showing that no perjury could have been committed in the matter alluded to, they may find for the defendant.” These instructions were also given, but on the motion of the plaintiff in the action the *24court instructed further that .they were “an abstract preamble of law” and their relevancy not perceptible, — thus withdrawing in effect the instructions previously moved and given. This it is contended was also error. On examination of the testimony asset out in the bill of exceptions, we concur in opinion with the circuit court that there is nothing to which they would very appropriately' apply, but were it otherwise the matter to which they refer wifs not in issue by the pleadings nor was it at all material. The error, if any, consisted as we think in giving the instructions, not their withdrawal.

So far as the verdict is concerned it is assigned for error “that the circuit court upon the mere finding of the jury that the defendant spoke and published the .words in the within declaration' specified, proceeded to render final judgment for the damages found without any finding of the intent or motive with which1 the words were spoken.” Malice we think is clearly implied in the verdict as found. The words alleged to have been spoken were actionable,the plea not guilty,- and the verdict “that the defendant spoke and-published, the words in the declaration specified.”

It is objected further that the “ judgment is rendered for all the costs of the case expended, when it should have been for all of the costs of the plaintiffs, in this behalf, expended.” The language of the judgment must be understood to embrace all the costs only to: which the plaintiffs in the action were entitled. Such we under-stand to have been the principle settled in the case of Brown’s Ad. vs. Hill &c. 5 Art R. 78.

It may be proper to remark that' we have not deemed it necessary to allude particurlarly to the pleas of justification, as there has been" no attempt to sustain them. We have no doubt, however, but that the same formality is required in justifying that existed prior to the passage of the act of 1837. Under the view presented it only remains to add that the judgment of the circuit court must be: affirmed with costs.-