Stewart v. Cleaver , 1 Del. 337 ( 1834 )

This was an action on the case for words. The declaration stated the colloquium to be in relation to the matters proved in a certain suit theretofore depending before a justice of the peace between Cleaver, the present deft. and Stewart the plff.; and the words laid were — "He (meaning Stewart) proved it by hiring captain Bready to swear to a lie for $ 5 he gave him." And again — "He (meaning Stewart) did prove it, but it was by getting Captain Bready to swear to a lie for five dollars."

The plff. gave in evidence the record of a suit before justice between Cleaver and Stewart, and the name of William Bready appeared on the record as a witness, but it did not otherwise appear that he was sworn in the cause. He proved the words clearly; and that they were spoken in relation to this suit. He here rested.

The only defence set up was that it did not sufficiently appear that the swearing alluded to by the deft. was in the course of a judicial proceeding. Mr. Wales laid it down that this was necessary, otherwise the words were not actionable. If A assert that B had hired C to go before a justice and swear to a lie, it would not be actionable. The swearing alluded to must be under such circumstances as would make false swearing perjury; it must be a charge of subornation of perjury in the course of a judicial proceeding. The court assented to all this, and so charged the jury; but the case was made out even to this extent, and the plff. had a verdict.

It appeared that the words were spoken in a passion and without express malice, and the jury gave nominal damages.