#### ELDELIS SLUDER vs. RICHARD WILSON.

A. charged B. with perjury, iu swearing before a single justice to the following affidavit, viz: “A. has a certain cow in his possession, that belongs to him, the said B.; and the description is red sides, with some spots and unmarked Held, that the words were not actionable in themselves, as the declaration did not aver, nor the proof shew, that the oath was taken in a proceeding, in which an oath could bo judicially administered.

The case of Brown v. Bula, 3 Murp. 574, cited and approved

Appeal from the Superior Court of Law of Buncombe County, at a special term in July 1849, his Honor Judge Caldwell presiding.

This was an action of slander and the case was as follows. The plaintiff made an affidavit before a justice of the peace, “ that Richard Wilson had a certain cow in his possession, that belongs to him, the said Sluder ; and the description is, red sides, with some spots and unmarked.” In speaking of this affidavit, the defendant said of the plaintiff, that he had sworn to a lie ; and, for, speaking these words, this action was brought, and tried on the gcneralissue. On the trial, the plaintiff proved *93the speaking of the words and produced the affidavit, in reference to which the words were spoken, and he offered no other evidence. Thereupon the Court held, that the action could not be maintained, and gave judgment of non-suit, from which the plaintiff appealed.

J. W. Woodfin, for the plaintiff.

Baxter, for the defendant.

Ruffin, C. J.

The words are clearly not actionable in themselves, as they do not import a charge of perjury. To make them amount to such a charge, it is necessary the declaration should state, and the proof shew, a proceeding, in which an oath could be judicially administered, so as to constitute false swearing therein a perjury. Brown v. Dula, 3 Murp. 574. To bring this case within the rule, the counsel for the plaintiff referred to the act concerning Strays, Rev. Stat. Ch. 112, by the 4th section of which, the owner of a beast, which has been taken lip and entered as an estray, may, within twelve months after the appraisement, prove his property before the ranger on his own oath, so as to entitle him to recover the beast from the person, who took it up. But that does not help the plaintiff, as he gave no evidence, that the cow was an estray or had been taken up as such ; so that it did not at all appear, that the affidavit was given for the purpose, or in a proceeding of the kind, provided for in the Act. As far as appears, the oath was not at all required nor authorized by the law, but was merely voluntary ; and, therefore, in taking it, the plaintiff could not be guilty of perjury, and, consequently, in saying that the oath was false, the defendant did not impute to the plaintiff’ the crime of perjury.

Per Curiam.

Judgment affirmed.