#### WILLIAM M. MEBANE vs. BENJAMIN A. SELLARS.

Where words alleged to impute perjury, can only be made to convey that idea by reference to a swearing in a suit in Court, and it appears that the plaintiff was not sworn at all in that suit, and that the oath which he did take, and to which only, the words spoken were applicable, was extrajudicial, Held that an action would not lie.

This was an action of slander, tried before his Honor, Judge Caldwell, at the Fall Term, 1855, of Guilford Superi- or Court.

One Miller testified, that in a conversation between him and the defendant about candidates for the Legislature, the wit-" ness mentioned the name of the plaintiff, whereupon the defendant said, “ who would vote for him except the Corsbys ? that ’Squire Shaw had told him that he (plaintiff) had sworn him out of $20.” He also testified, that a few weeks before this, he heard defendant say, ’Squire Shaw had said plaintiff had sworn him out of $20, and he understood defendant as *200speaking of a suit between Mm (Shaw) and one Robert Me-bane.

Mrs. Miller, wife of the foregoing witness, testified that she heard the defendant, on the occasion spoken of by her husband, say that ’Squire Shaw toM Mm plaintiff had sworn Mm out of $20.

One Oorsby testified, that in a conversation with defendant, he repeated the words stated by the preceding witnesses. That he understood the defendant as referring to a suit between said Shaw and Robert Mebane.

Shorn, the person above spoken of, stated that there had been a suit between him and Robert Mebane in Alamance County Court; that Mebane wished to continue it for a witness, to prove a credit of $20 which he claimed, and it was agreed that said Mebane should confess a judgment for the whole amount of the debt claimed by him, and if he, Mebane, could thereafter prove that he was entitled to such credit, it was to be allowed him. The judgment was accordingly confessed for the full amount claimed by him.

In pursuance of this understanding between him and said Robert, the plaintiff, at the instance of Robert Mebane, went before one Clapp, a justice of the peace, and made oath to the credit of $20 insisted on by Robert Mebane, whereupon he credited the judgment by that amount. lie further swore, that plaintiff was not summoned nor examined as a witness in the case between him and Robert Mebane; also that he had told defendant, that the plaintiff had swore him out of $20 ; but he did not thereby intend to impute corruption to Mm.

The Court advised the jury that the plaintiff could not recover ; for, according to one view of the case, as presented by the evidence, the plaintiff was not sworn in the suit referred to, and in the other view, the oath was extrajudicial; and that it was not important whether the defendant knew that the oath taken by the plaintiff was extrajudicial or not.

The plaintiff in submission to this opinion of his Honor, submitted to a non-suit and appealed.

*201 Miller and Gilmer, for plaintiff.

Graham and Brycm, for defendant.

Battle, J.

The words which the defendant uttered in speaking of the plaintiff, are clearly not actionable in themselves. They are not so strong as to say of a man that he is foresworn, or that he has taken a false oath, generally, and without reference to some judicial proceeding, which it was said in Brown v. Dula, 3 Murph. Rep. 574, had been established by along series of decisions, not to be actionable. But though such words be not of themselves actionable, yet they may become so, if, by proper averments and proofs, it can be shown that they had reference to some judicial proceeding in which the plaintiff had been sworn, and that the defendant intended to impute to him the crime of perjury. Here, supposing all the necessary averments to be contained in the declaration, the proof fails to show that the defendant spoke of any judicial proceeding, or that the plaintiff had been sworn in any such proceeding. The witnesses testified indeed, that they understood the defendant to refer to a suit between Shaw and one Robert Me-bane ; but they did not state that he mentioned the suit, and it appears that the plaintiff was not sworn in it at all. The proof, then, did not sustain the averment, and of course, the action must fail. Sluder v. Wilson, 10 Ire. Rep. 92; Sasser v. Rouse, 13 Ire. Rep. 142 ; Jones v. Jones, 1 Jones’ Rep. 495. The cases of Sugart v. Carter, 1 Dev. and Bat. Rep. 8, and Chambers v. White, 2 Jones’ Rep. 383, referred to by the plaintiff’s counsel, differ from this in the essential particular*, that in them, the 'words used were actionable in themselves, as they imputed to the plaintiff the commission of capital felonies.

Per Curiam.

The judgment of non-suit must be affirmed.