Jones v. . Jones , 46 N.C. 495 ( 1854 )

The plaintiff's incipitur, or memorandum of his cause of action, filed in lieu of a declaration, is as follows, "that he, the plaintiff, had sworn a lie, in swearing in the County Court of Buncombe, in a case wherein A. B. Chunn was plaintiff, and Reuben Brown and Hugh Clark were defendants, on aca. sa. that he had sworn a lie, in stating that the plaintiff had not served a ca. sa. on the defendant Brown. That he swore a lie in swearing that he did not have a ca. sa. in his hands against the said Brown. A charge of perjury in the above case, with all the variations of expression, and with the necessary inuendoes. A charge of perjury generally." The plaintiff first offered in evidence the depositions of Henry Worley and Mira Worley.

The deposition of Worley is as follows: "I heard Josiah Jones say that W. D. Jones swore a lie about serving a ca. sa. on Reuben Brown, and he could prove it. He said he swore a lie in two other cases. Some time in September 1845, the conversation took place at my house, relative to his swearing a lie in serving a ca. sa. on Reuben Brown, and the balance of the conversation took place next day, as we were travelling together, relative to his swearing a lie in two other cases."

Mira Worley swore as follows: "I heard Josiah Jones say that W. D. Jones swore a lie, but I did not hear him say in what case."

The plaintiff also proved by one David Duckett, that he heard the defendant, more than six months before the commencement of this action, say that the plaintiff had sworn a lie in the County Court of Buncombe, in the case of A. B. CHUNN v. BROWN and CLARK, and he also proved by a witness that plaintiff was sworn in that suit as a witness for the defendants. The plaintiff's counsel contended that the jury had a right to take into consideration the evidence of Ducket, although he spoke of words spoken more than six months before the commencement of this suit, in order to fix the meaning of the words stated by the witness Worley and wife; but the Court was of opinion, and instructed the jury, that before the plaintiff was entitled to recover, he must prove the speaking of actionable words by the defendant, within six months preceding the commencement of the action, and as the words proved by Worley and wife were the only words spoken within six months, and as they were not actionable, the plaintiff could not recover; for, that the words proved by Duckett could not be brought to aid the other words, so as to make them sustain the plaintiff's cause of action. What was proved by Duckett might have been considered by the jury to show the defendant's malice, so as to aggravate the damages, had the plaintiff made out a good cause of action independently of them, but, having failed to do so, they were not to be considered by them at all.

In obedience to these instructions, the jury rendered their verdict for the defendant. Plaintiff moved for a venire de novo, for error in the charge of the Court. Rule discharged; judgment and appeal to this Court. His Honor was undoubtedly correct in holding that the actionable words proved by the witness Duckett to have been spoken by the defendant, six months before the commencement of the suit, could not be taken into consideration by the jury, for the purpose of ascertaining what was said to Worley and wife, in the State of Georgia. The testimony of Duckett, as his Honor very properly stated, could be used only to show malice, and enhance the damages, after words actionable in themselves had been proved to have been uttered by the defendant of the plaintiff, within the time of limitation. The question then is, whether the words spoken in Georgia, less than six months before the writ was issued, as testified by Worley and wife, were in themselves actionable? The defendant's counsel contends that they were not, because they did not refer to any judicial proceeding, so as to show that the crime of perjury was imputed to the plaintiff; and, in support of his argument, the counsel refers to the cases of HOLT v. SCHOLFIELD, 6 Term Rep. 691; BROWN v. DULA, 3 Murp. Rep. 574. In the latter case, it was said by Chief Justice TAYLOR, that "it is established by a long series of cases, that, to say a man is foresworn, or that he has taken a false oath, generally, and without reference to some judicial proceeding, is not actionable, and the reason is, that, in the latter case, a perjury is charged, for which, were the charge true, the party would be liable to be indicted and punished; in the other, a breach of morality is imputed, of which the law does not take cognizance. The declaration in the case did not aver any colloquium, but stated merely that the defendant spoke of the plaintiff, "these false, scandalous, malicious and defamatory words; that is to say, he swore a lie, and I can prove it, meaning thereby that the said plaintiff had committed wilful and corrupt perjury." The facts, as they appeared upon the trial, were, that the plaintiff and one Allison were standing together, when the defendant walked up, and addressing himself to Allison, said, "You are a good man, and I like you, but that man (pointing to the plaintiff) is a rascal; he swore to a lie against me, and I can prove it." Allison was well acquainted with the parties, and had heard that, upon the trial of an indictment against the defendant, in Wilkes Court, the plaintiff had been examined as a witness for the State, and the record of the prosecution was given in evidence. A verdict was rendered for the plaintiff, subject to the opinion of the Court upon the question, whether the words were actionable. The Court was of opinion that, as the declaration did not set forth any colloquium to which the inuendo could have reference, the words were not actionable, and gave judgment accordingly, which upon appeal was affirmed in this Court, upon the ground that "in a charge of false swearing, unless from the accompanying words it is clear that a judicial forswearing was meant, the plaintiff must show upon the record, that the defendant alluded to some particular forswearing, which amounted to perjury."

It is manifest that the judgment in favor of the defendant was founded upon the want of an averment in the declaration, that there was a colloquium, referring to a false swearing in a judicial proceeding. The same objection was made and prevailed in the case of HOLT v. SCHOLFIELD. In both cases, had there been proper averments in the declaration, the plaintiff, respectively, could have recovered upon the proofs. Thus, in the case of SASSER v. ROUSE, 13 Ired. Rep. 142, Judge PEARSON, in delivering the opinion of the Court, said, that "the general rule is, words are to be taken in their ordinary acceptation, and it is the duty of the Court to decide whether they do or do not import a charge which is slanderous. An exception in favor of a plaintiff is, that though the words do not in their ordinary meaning import a slanderous charge, yet, if they are susceptibleof such a meaning, and the plaintiff avers a fact, from which it may be inferred that they were used for the purpose of making the charge, upon proof of the averment, it should be left to the jury to say whether the defendant used the words in the sense imputed, or in the ordinary sense." As an illustration, two examples are given: one of which is, that "if there is an averment, that the plaintiff had been examined as a witness in Court, and the words are, "he is forsworn," upon proof of the averment, it might be left to a jury whether the word forsworn was used in the sense of having committed a perjury." In the case before us, as the defendant did not require a formal declaration, we are to assume, according to the general understanding of the profession, that the plaintiff's declaration contains all the necessary averments, to wit, that there was a cause pending in the County Court of Buncombe, in which A. B. Chunn was plaintiff and Brown and Clark defendants, and that the plaintiff was examined as a witness in said suit, and gave the testimony which the defendant charged to be a lie; under such a declaration, we think, upon the principles established in the cases above referred to, that the testimony of Worley and wife ought to have been submitted to the jury, together with the other testimony in the cause, for them to determine whether the defendant, in using the words, that "William D. Jones, (the plaintiff) swore to a lie, about serving a ca. sa. on Reuben Brown, and he could prove it, "and that he swore to a lie in two other cases," did not mean to refer to his swearing to a lie in the case of CHUNN v. BROWN and CLARK, and thereby to impute the crime of perjury. In refusing to do this, his Honor erred, and for this error the judgment must be reversed, and a venire de novo awarded.

PER CURIAM. Judgment reversed.