Opinion
(July Term, 1817.)
It is not actionable to say of a person that he swore to a lie "in obtaining a warrant from a justice respecting a deer," where it appeared that the justice had no jurisdiction of the offense; and, therefore, perjury could not be committed in it.
THIS was an action of slander for saying of the plaintiff that he had sworn to a lie in obtaining a warrant from a justice, respecting a deer. The warrant stated that the plaintiff had made oath that he had reason to believe that the defendant and another person did take from his dogs a large buck that he had wounded on the same day; that he found the buck in the defendant's possession the next day and demanded the carcass, but his wife refused to give it up. It then directs the officer to take the body of Luther, to be dealt with as the law directs. The justices who tried the warrant dismissed it on the ground that no trespass was proved.
(636) Norwood for defendant.
The jury found a verdict for the plaintiff subject to the opinion of the court whether the words are actionable.
This is an action for slanderous words, in which a verdict was rendered for the plaintiff, subject to the opinion of the court upon the point whether the words are actionable or not. The words are that "Plaintiff had sworn to a lie in obtaining a warrant from M. Harvey, Esq., respecting a deer." And the warrant alluded to by the defendant is set forth in the case. Many decisions show that there is a difference between a charge of perjury and that of being forsworn. The latter imputation is not, of itself, sufficient to support the action, because it does not necessarily imply that the oath was taken before a competent authority in a judicial proceeding; without which circumstances no perjury, technically speaking, can be committed. And nothing short of "words containing an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor," will lay the foundation of an action for slander. Onslow v. Horne, 3 Wils., 186. But if the charge of being forsworn is made in reference to some judicial proceeding, as to say that one has sworn to a lie or forsworn himself in such a suit, then an action may be sustained. But that will depend, again, upon the circumstance of the suit in which the oath is alleged to have been taken; being or not being one in which the plaintiff might, by swearing falsely, commit perjury. For, by reference to the suit, that is made part of the charge, and the whole is to be taken together. And if it appear that the plaintiff could not commit perjury, then there is no slander. It is like the common case stated in the books, where one says of another, that "he is a thief and stole my growing timber." Because no larceny could be committed of growing timber, the words are not actionable. If, in the case before us, the justice of the peace clearly had no jurisdiction of the case, and there was no offense charged against the defendants in the warrant, the plaintiff, then a witness, could not be guilty of perjury. By no force of construction can the (637) charges obtained in that warrant amount to any crime. I do not speak of the form of the precept but allow the utmost latitude as to the facts. Suppose one was to obtain, on oath, a warrant against another for that he rode peaceably along the public highway on his own business, and the oath should be false, that would not be perjury, because there is no crime charged, and nothing to try; and the oath of the witness, true or false, could operate nothing, because, admit the whole, still the defendant must be acquitted. So it is here. The oath was both immaterial and coram non judice.
Wherefore, there must be a nonsuit.
TAYLOR, C. J., SEAWELL, J., DANIEL, J., and LOWRIE, J., concurred.
HALL, J., dissented.
NOTE. — See Brown v. Dula, 7 N.C. 574.