#### JONAS JENKINS, Jr. vs. JESSE C. COCKERHAM.

Parol evidence may be received to shew when a writ issued. The act of Assembly directing the clerk to mark the day of issuing process is only directory, and does not exclude other evidence.

In an action of slander, the defendant cannot, to support his plea of justification, give evidence of transactions or conversations between himself and others, to which the plaintiff was not privy.

In an action of slander, in which the defendant is charged with having imputed perjury to the plaintiff, the plea of justification is not sustained, if the jury are satisfied that the plaintiff was honestly mistaken in what he swore to. In such an action, the plea of justification must contain all the averments, which, if true, constitute the crime of perjury-

The cases of Boyden v. O’Deneal, 1 Dev. 171; Hamilton v. Smith, 2 Dev. and Bat. 274; Murphy v. McNeil, 2 Dev. and Bat. 244; and Roherson v. Devane, 2 Hay, 154, cited and approved.

This was an action on the case for slander, tried at the Fall Term, 1840, of Haywood Superior Court, before his honor Judge Baxley. The declaration set forth, in substance, that the defendant had charged the plaintiff with swearing to a lie, upon the trial of an indictment against the defendant for a misdemeanor. The defendant pleaded the general issue, statute of limitations and justification. The plaintiff prow ed the speaking of the words by the defendant, and then offered to prove by parol the day on which the writ issued, there being no date of its issuing marked upon the writ. The defendant objected to this evidence, but it was admitted by the court.

The defendant, to sustain his plea of justification, offered proof of what the plaintiff swore, upon the trial of the indictment against him, the defendant, for the purpose of shewr ing that the plaintiff swore falsely and corruptly. It was in proof that the defendant, Cockerman, had issued his wars rant as justice of the peace against one George Southerland and Ann Chambers, charging them with fornication and a- *310^ examined witnesses touching their offence, and caused them to enter into recognizances with sureties for their appearance at the next County Court; that the warrant and recognizances were placed in the hands of one Benjamin M. Enlow, deputy sheriff, by said defendant, with directions to be delivered to the county attorney; that the plaintiff was one of the sureties oí the said Southerland and Chambers; that afterwards, on the same day, the warrant and recognizances were burnt by the said Enlow, Southerland and Chambers. A short time before they were burnt, an agreement was made to burn the papers, the plaintiff being present and not objecting,

The defendant was indicted for corruption in his office as a justice of thex peace, in procuring and directing the papers to be burnt, <fcc. The defendant proved that the plaintiff swore upon the trial of this indictment, that he, the defendant Cockerman, examined some of the witnesses before him on the trial of Southerland and • Chambers, and, before he concluded the examination of all the witnesses, stopped and said, there was no evidence to bind them over to court. The plaintiff furthermore swore that he and the defendant, a few minutes after the trial, met under a tree, and the defendant then stated to him that there was no evidence to bind the parties, that it would become a county charge, and that the warrant and recognizances might be burnt. The defendant then offered proof that, when he stopped the examination of the witnesses aforesaid, he said he had sufficient proof to bind the patties, and he did bind them. The defendant’s counsel then proposed to shew that Cockerman commenced a prosecution against Enlow and Southerland for burning the papers, before the prosecution was commenced against him; and also proposed to shew that the defendant was applied to, in a short time after the conversation with Jenkins, he (Jenkins) not being present, by one Angel, to permit the parties to compromise and stop the proceedings against Southerland and Chambers, and that he refused. This evidence was objected to, on the ground that the prosecution instituted by-the defendant was not against the plaintiff and *311that the declaration proposed to be given in evidence was not in the presence of the plaintiff. The evidence was rejected by the court. His Honor then charged the jury that if the words contained in the plaintiff’s declaration Were spoken by the defendant of the plaintiff, and that within six months of the issuing Of the writ, they should find a verdict for the plaintiff, unless they should be satisfied that the defendant had sustained his plea of justification; that if the plaintiff, in what he swore on the indictment, was mistaken, but not wiL fully and corruptly so, the plea Was not sustained; but that, if the plaintiff had sworn falsely and corruptly, they should find for the defendant. There was a verdict for' the plaintiff. A motion for a' new trial was made by the defendant’s counsel, because Of the rejection of proper testimony, and especially upon the ground of misdirection by the court. He contended that if the defendant proved that the plaintiff had sworn falsely, his plea- of justification was sustained, and it was not necessary for him to prove that he swore corruptly and falsely, but that it was for the plaintiff to shew that, although mistaken, he was not corrupt. The motion for a new trial was overruled and judgment rendered for the plaintiff, from which the defendant appealed to the Supreme Court.

Francis for the- plaintiff.

No counsel for the defendant.

Daniel Judge.

Three qtíésíions arise in this Case.— First, whether parol evidence could be received to shew when the writ issued. We are of the opinion that the court was correct in overruling the objection to this- evidence. The act of Assemby directs the clerk to mark the day of issuing process:' this is only directory under a penalty; there is nothing in the act confining the proof of the time to the mark of the clerk oh the writ. It was a fact to be proved by the best evidence the nature of the case admitted, Boyden vs. O’Deneal, 1 Dev. 171. Secondly, to support the plea of justification, the defendant tendered evidence to shew that he had commenced a prosecution against Enlow and Southerland for burning the papers, before the prosecution had been commenced against him. And he *312also proposed to shewn, that he was applied to by one An- ^ t0 Perm*t the Parties t0 compromise and stop the proceedings, and that he refused; and this, a short time after the conversation with Jenkins, but he, Jenkins, not being present. Wé are of the opinion that this evidence was properly rejected. Hamilton v. Smith, 2 Dev. & Bat. 274, was an action for slander, and we then held that transactions between the defendant and others, to which the plaintiff was in no way privy, were not admissible in evidence against the plaintiff. In Murphy v. McNeil, 2 Dev. & Bat. 244, we held that one party cannot give in evidence a conversation between himself and a third person in the absence of the other party. In Roberson v. Devane, 2 Hay. Rep. 154, it was held, that after declarations of a party shall not be received to explain his former transactions; These authorities induce us to think that the decision of the Judge was correct. Thirdly, the Judge charged the jury that, if the plaintiff was mistaken in what he swore to on the indictment* the plea of “justification” was not sustained. We hold that the Judge’s instruction in this respect was correct. The defamatory words complained of, charged upon the plaintiff the crime of perjury, and the plea of “justification" would have been essentially bad, if it had not contained all the averments, which, if true, established the crime of perjury — a wilful, corrupt aud false swearing. See 3d Chitty on Plead. 1033. And it was essential for the support of the plea to prove all its material allegations.

Per CuriamJudgment of the Superior Court affirmed.