#### Francis Browne v. William Dula.

From Wilkes.

Jn a charge of forswearing, unless it appear from the accompanying-words, that a judicial forswearing was meant, the Plaintiff must shew upon the record, that the Defendant alluded to some particular forswearing-, which amounted to perjury.

Therefore, where the Plaintiff charged in his Declaration, that the Defendant said of him, “ He swore a lie, and I can prove it,” and there was no colloquium set forth of any judicial proceeding, the Plaintiff was nonsuited.

This was an action on the case, for slanderous words spoken of the Plaintiff. The declaration charged, that “ Whereas Francis Browne is a good, true, honest, just “ am! faithful citizen of this State, and as such hath al~ “ ways behaved and conducted himself, and until the com- “ mitting of the several grievances by the said William (i Dula, hereinafter mentioned, was always reputed, es- “ teemed and accepted, by and amongst all his neighbours, “ and other good, worthy citizfcns of the State,, to whom “ lie was in any wise known, to be a person of good name, “ fame and credit: and whereas he hath never been guilty, “ nor until the time of committing the several grievances “ by the said William Dula, hereinafter mentioned, been “ suspected of being1 guilty of perjury or any other such Worime, by means of which said premises, he hath de- “ servedly obtained the good opinion and credit of all his “ neighbours, and other good and worthy citizens of this “ State to whom he was in anywise known, to wit, at “ Wilkes aforesaid j yet the said William Dula, well “ knowing- the premises, but greatly envying the happy “ state and condition of the said Francis Browne, and “ contriving and wickedly and maliciously intending to “ injure the said Francis Browne in ills said good name, “ fame and credit, and to bring1 him into public scandal, “ infamy and disgrace, with and amongst all his neigh-*575 iS bouvs and other good citizens of this State, and also to “ cause him to be suspected and believed, bj^timse neigh- “ hours and citizens, to be guilty of perjury, arid that he *'•' had subjected himself to the pains and penalties, by the “ laws of this state, inflicted upon persons guilty of said “ crime, and to harrass and ruin the said Francis Browne, “ heretofore, to wit, &c. then and there in the presence “ and hearing of the said last mentioned citizens, falsely “ and maliciously spoke and published of and concerning <e the said Francis Browne, these false, scandalous, mali- “ cious and defamatory words, that is to say, “ lie swore “ a lie, and I can prove it,” meaning thereby that the said “ Francis Browne had committed wilful and corrupt per- “ jury ; by means of committing which said several griev-£í anees, Sec.”

Upon the trial of the cause, the Plaintiff proved, that he and one James Allison were, standing together in the street in Wilkesborough. The Defendant walked tip, and addressing himself to Allison, said, <s You arc. a good man, “ and I like you $ but that man (pointing to the Plaintiff) ei is a rascal, he swore to a lie against me, and 1 can prove “ it.” Allison was well acquainted with the Piainüíf and Defendant, and had heard that upon the trial of an indictment against Defendant in Wilkes Court, the Plaintiff had been examined as a witness for the State, anil the record of this prosecution was given in evidence. The Jury gave a verdict for the Plaintiff, subject to the opinion of the Court upon the question, whether the words as laid in the declaration, were actionable. Thc*Conrt was of opinion, that as the declaration did not set forth any colloquium to which the inuendo could have reference, the words as charged were not actionable ; ami gave judgment accordingly. The Plaintiff appealed, and

Tayior, Chief-Justice,

delivered the opinion of this Court:

It is established by a long series of cases, that to say a man is forsworn, or that he has taken a false oath, gene*576rally, and without reference to some judicial proceeding'» is not actionable •, and the reason is, that in tlie latter case a perjury is charged, for which, were tlie charge true, the party would be liable to be indicted and punished j in the other, a breach of morality is imputed, of which the law does not take cognizance.*

In a charge of forswearing, unless from the accompanying words, it is clear that a judicial forswearing was meant, the Plaintiff must shew upon the record that the Defendant alluded to some particular forswearing which amounted to perjury. Thus, in a declaration for saying A. B. being forsworn, compounded the prosecution,” no introduction of extrinsic facts is necessary, since an indictable forswearing must have been meant. But in declaring for the words, íS Sc has forsworn himself in Leake “ Court,” it is necessary to shew that Leake Court was one in which the offence of perjury could have been committed. Actions of slander do not lie «pon inference.

It lias been held, that to accuse another of having forsworn himself, generally, is actionable;† but it seems-now perfectly settled that such an accusation is not actionable, unless it appear from the accompanying circumstances, to have meant such a forswearing, as would constitute the offence of perjury.‡

*

Cro. Eliz. 429, 788, 609, 720. 1 Com. Dig. Tit. Action on the case for defamation. 6 Mod. 200.

†

2 Buis. 40.

‡

4 Rep. 15. 6 Term Rep. 691.