#### George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error.

ERROR TO WASHINGTON.

An omission of a colloquium, in a declaration for slander in charging the plaintiff with swearing a lie, is fatal. (1)

This was an action of slander brought in the Washington circuit court by Blair and wife, against Sharp. Prom the *31agreed case, it appears, that the only words charged in the declaration to have been spoken of the plaintiff by the defendant, were, that the plaintiff “ had swore a lie.” There was no colloquium showing how, or on what occasion the lie was sworn. The court below declared the declaration insufficient, and that the words as stated, were not actionable. To reverse that judgment, a writ of error was sued out by plaintiff.

(1)

Such was the rule of the common law, but it is now materially changed in this state, by statute. Section 2, page 1137, Scate’s Comp’l. Purple’s Statutes, page 1126, provides that, “It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having swore falsely, or for using, uttering or publishing words of, to, or concerning any person, which in their common acceptation, amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding or not.” And under this statute the court held that “ Words which, in their common acceptation, amount to a charge of having sworn falsely, are actionable, whether spoken of and concerning a judicial proceeding or not; and are none the less actionable because the declaration avers that they were spoken in a conversation concerning a judicial proceeding.” “It is not necessary that the words spoken in a conversation concerning a judicial proceeding, should be spoken under such circumstances as to impute the crime of pequry.” Sanford v. Gaddis, 13 Ills., 329.

In an action of slander for words used charging false swearing, where the defendant by his pleas has based his defense on the fact that the plaintiff was guilty of perjury, he will be required to prove the fact of the perjury. He must make out the defense which he has chosen in his pleadings, even though he was not obliged to charge perjury in order to justify the words spoken. Hicks v. Rising, 24 Ill., 566

The first section of the statute above referred to also provides that “ If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he, she or they, so falsely publishing, speaking or uttering the same, shall be deemed guilty of slander.” And under that section of the statute the court said: “Words, which in their common acceptation, amount to a charge of fornication, are slanderous, and are actionable without colloquium or innuendo; and the latter, if used, is at most but surplusage.” Elam v. Badger, 23 Ill., 498.

In an action of slander for words charging the plaintiff with fornication or adultery, no reference need be made in the pleadings to the statute on that subject, id.

Opinion of the Court. The omission of a colloquium, showing to what the words spoken, referred, so as to render them actionable, we consider fatal. The declaration is not good at common law, nor under the statute. The declaration does not bring the case within the letter or meaning of the statute. The judgment of the court below is affirmed, with costs, (a)

Judgment affirmed.

(a)

To say that the plaintiff has swore false, or taken a false oath, is not actionable. 8 Johns. Rep., 109. There must be a colloquium of its being in a cause pending in a court of competent jurisdiction, and on a point material to the issue. 13 Johns. Rep., 48. 1 Caine’s Rep., 347. 2 Johns., 10. The term foresworn is not in itself actionable. 6 T. R., 691. 8 East., 427. Vide Laws of Illinois, 1823, p. 82.