Where the words were, " I have lost a calf-skin out of my cellar. * ** There was no one in the cellar but you, Bornman and Gray. I do not blame you nor Gray, but. Bornman must have taken it," they were held actionable.' Charging one with stealing a key out of the lock of a door, held actionable. By the laws of Pennsylvania, taking and carrying away fruits, vegetables, &c., whether attached to the soil or not, is a misdemeanor, yet where the words were, "Mrs. Reynolds has stolen corn out of Gubbles' field," "He was confident Pat. Reynolds' wife stole Gubbles' corn," held the words were not actionable, if they referred to growing corn.3 To charge plaintiff with having wrongfully taken defendant's logs, sawing them up, and selling the lumber, is actionable without averring

this search, all the parties went out of the house to search for the missing bill; near the window they found a pocket-book with the clasp unfastened, and in it was the missing bill; that C. took out the bill and handed the pocket-book to A., who took it, and then said, "Boys, don't tell this on me, for if you do it will ruin me." Held that these words did not of themselves import a charge of larceny. (Prichard v. Lloyd, 2 Carter, 154.)

1 Bornman v. Boyer, 3 Binn. 515; ante, § 144, subd. dd.

Hoskins v. Tarrence, 5 Blackf. 417. This decision was on the hypothesis that stealing a key out of the lock of a door is larceny. It was so held in Rex v. Hedges, 1 Leach C. C. 201, 4th ed., but is said to be "clearly wrong." Heard on Libel, p. 37, note 4. Actionable to say: "You never thought well of me since G. [plaintiff] did steal my lamb" (Grave's Case, Cro. Eliz. 289); or, “I dealt not so unkindly by you [plaintiff] when you stole a sack of corn." (Cooper v. Hakewell, 2 Mod. 58.) "J. W. [plaintiff] was in question for stealing a mare, and hue and cry went out after him, and he durst not show his face hereabouts," doubtful if actionable. (Gray v. Wayle, Sty. 159.) A. said to B. [the defendant], "My sheep were feloniously stolen away." B. replied, "I know who took them; it was J. S." Held actionable. (Helly v. Hender, 3 Bulst. 83.) "Go follow suit against W. [the plaintiff] for stealing thy two kine, and hang him," held actionable. (Willymote v. Welton, Cro. Eliz. 904.) So were the words, "He is infected of the robbery and murder lately committed, and doth smell of the murder." (Hawley v. Sidenham, Vin. Abr. Act. for Words, P, a, 14.) "You might have known your own sheep and not have stolen mine," court divided if actionable or not. (Thompson v. Knott, Yelv. 144.) "Thou [plaintiff] hast stole my mare or was consenting to it,” held not actionable; the plaintiff might consent and yet be faultless, and the latter part of the sentence controlled the first. (Anon. Noy, 172.) “S. [plaintiff] did steal a mare, or else G. is forsworn," not actionable, not being a direct charge of stealing. (Sparkham v. Pye, Cro. Jac. 532.) So the words, "You as good as stole the canoe of J. H.," were held not actionable per se. (Stokes v. Arey, 8 Jones L. [N. Car.] 66.)

3 Stitzell v. Reynolds, 9 P. F. Smith, 488; and see Hall v. Adkins, 59 Mo. 144.

"He sheared two of Zack.

that larceny was intended.' Austin's sheep," "He sheared two of Zack. Austin's sheep and kept the wool," with an innuendo that a larceny was intended, but without any colloquium, held not actionable. An action will not lie, without allegation of special damage, for the words, "You had a share in breaking into the store," alleged to refer to a robbery of a store belonging to the plaintiff and defendant as copartners.3

171. A direct charge of perjury is actionable per se, and it is actionable to say of one, "The Reverend Thomas Smith is a perjured man," or "He perjured 5 himself," or "He committed perjury by swearing in his vote at the school district meeting;' and where the defendant, speaking of an allegation in an affidavit made

1 Connick v. Wilson, 2 Kerr (N. Bruns.) 496.

* Brown v. Piner, 6 Bush (Ky.) 596.

'Aefele v. Wright, 17 Ohio, 238.

4 Newbit v. Statuck, 35 Maine (5 Red.) 315; Bell v. Farnsworth, 11 Humph. 608; Eccles v. Shannon, 4 Harring. 193; Cook v. Bostwick, 12 Wend. 48; Hopkins 7. Beadle, I Cai. 347; Kern v. Towsley, 51 Barb. 385; Gorton v. Keeler, Id. 475 ; Commons v. Walters, 1 Port. 377; Hall v. Montgomery, 8 Ala. 510; Haws v. Stanford, 4 Sneed, 520; Lee v. Robertson, I Stew. 138; Chapman v. Gillett, 2 Conn. 40; as to perjured knave, see note 12, p. 236, ante. A., speaking with reference to a complaint preferred by him before the grand jury against B., said that “he went before the grand jury, and asked them if they wanted any more witnesses, and they said they had witnesses enough to satisfy them;" held, actionable, if he thereby meant to impute perjury to B. (Rundell v. Butler, 7 Barb. 253.) Saying of plaintiff, he was under a charge of prosecution for perjury, and that G. W. (an attorney of that name) had the attorney general's directions to prosecute the plaintiff for perjury, held actionable after verdict for plaintiff. (Roberts v. Camden, 9 East, 93.) And saying, "I would not swear to what C. W. has for the town of R.; P. W. is honestly mistaken, but C. W. is willful," imputes perjury to C. W., and is actionable. (Walrath v. Nellis, 17 How. Pr. R. 72; see ante, § 144, subd. u.) A charge of subornation of perjury is actionable (Cro. Jac. 158; Beers v. Strong, Kirby, 12), as, “You have caused this boy to perjure himself." (Brownl. 2.)

Cummin v. Smith, 2 S. & R. 440. If he swears that, he swears to a lie, held not actionable, because hypothetical. (Lang v. Gilbert, 4 Allen [N. Bruns.] 445.) @ Sandford v. Gaddis, 13 Ill. 329. I will prove thee a perjured knave, actionable. (Staverton v. Relfe, Yelv. 160.) O. [plaintiff] says I am a perjured rogue; he is a perjured rogue as well as I-held actionable. (Orton v. Fuller, Lev. 65.) If I list I can prove him perjured-held not to impute perjury, and therefore not actionable. (Davis' Case, Hutt. 127.)

Crawford v. Wilson, 4 Barb. 504; Small v. Clewley, 60 Maine, 262.

by the plaintiff, said it was not true and plaintiff had perjured himself, it was held to be actionable if the intent was to impute perjury. The words," he swore a false oath," or "he swore a lie," or "he swore false," are not actionable per se, nor can an action be maintained for them merely by an innuendo that they imputed or were intended to impute perjury. There must be an averment and colloquium of a judicial proceeding. To say of one, You are a liar; you swore to a lie; you get your living that way-held not to be actionable per se. To say of

1 Cook v. Bostwick, 12 Wend. 48. The words, "he has delivered false evidence and untruths in his answer to a bill in chancery," held not actionable. (1 Rolle Abr. 70; 3 Inst. 167.) Where the allegation was "we have no reply to make to a lad [plaintiff] convicted of perjury, by the solemn oath of a gentleman whose veracity is unimpeached," and the context showed that, by convicted it was really meant that the plaintiff was contradicted by the gentleman referred to, held error to instruct the jury that the charge, convicted of perjury," was actionable, per se, as such instruction implied that the charge was of technical perjury. (Pugh v. McCarty, 40 Ga. 444.)

2 Packer v. Spangler, 2 Binn. (Pa.) 60; Sheely v. Biggs, 2 Har. & J. 363; Power v. Miller, 2 McCord, 220; Martin v. Melton, 4 Bibb (Ky.) 99; Sluder v. Wilson, 10 Ired. 92; Beswick v. Chappel, 8 B. Mon. 486; Roella v. Follow, 7 Blackf. 377; Vaughan v. Havens, 8 Johns. 109; Chapman v. Smith, 13 Johns. 78; Hopkins v. Beadle, I Cai. 347; Phincle v. Vaughan, 12 Barb. 215; Barger v. Barger, 18 Penn. State Rep. 489; Blair v. Sharp, Breese, II; McManus v. Jackson, 28 Miss. (7 Jones), 56; Watson v. Hampton, 2 Bibb, 319; Shinloub v. Ammerman, 7 Ind. 347; Mebane v. Sellars, 3 Jones' Law (N. Car.) 199; Harris v. Woody, 9 Miss. 113; Horn v. Foster, 19 Ark. 346; Harvey v. Boies, I Penn. 12; Dalrymple v. Lofton, 2 Speer, 588; Shaffer v. Kintzer, 1 Binn. (Pa.) 537; Hall v. Montgomery, 8 Ala. 510; Walrath v. Nellis, 17 How. Pr. R. 72; Ward v. Clark, 2 Johns. 10; Stafford v. Grier, I Johns. 505; Robertson v. Lea, I Stew. 141; but see Rue v. Mitchell, 2 Dall. 58; Canterbury v. Hill, 4 Stew. & Porter, 224; Smale v. Hammon, I Bulst. 40; Lewis v. Soule, 3 Mich. 514; Hall v. Weedon, 8 Dowl. & R. 140; Colomes' Case, Cro. Jac. 204. 'Mr. H.'s oath is not to be taken, for he has been a forsworn man. I can bring people to prove it, and they that know him will not sit in the jury-box with him." Without any colloquium, referring the words to the conduct of the plaintiff as a juryman, and no special damage, held not in themselves actionable, and judgment arrested. (Hall v. Weedon, 8 D. & R. 140.) You swore to a lie in that suit we had at Liberty, held actionable per se. (Spooner v. Keeler, 51 N. Y. 527.) "Stanhope hath but one manor, and that he got by swearing and forswearing." (Stanhope v. Blith, 4 Co. 15.) In Arkansas, by statute, to charge a person with having sworn falsely or sworn a lie, is actionable, without an averment or proof of special damage, or a colloquium. (Carlock v. Spencer, 2 Eng. 12; McGough v. Rhodes, 7 Eng. 625.) And so in Mississippi. (Crawford v. Mellton, 12 S. & M. 328 ; see ante, § 153.)

3 Kimmis v. Stiles, 44 Vt. 351; Small v. Clewley, Co Maine, 262.

or,

4

or,

one, he is "mainsworn," was held actionable when spoken at a place where mainsworn meant perjured. A charge of being forsworn is not actionable per se; it imports only "false swearing," and not "perjury." But a charge of "false swearing" may convey to the minds of the hearers an imputation of perjury, and when it does, such a charge is actionable per se; as, where, after a charge of false swearing, the defendant added, “I will attend to the grand jury about it; "If you had your deserts, you would have been dealt with in the time of it; "For which you would now stand indicted; "5 or, "To my injury $600; "6 or, "and done it meaning to cut my throat; or," and I will put him through for it, if it costs me all I am worth."8 And held actionable to say of any one, "Thou art a forsworn man. I will teach thee the price of an oath, and will set thee on the pillory;" You swore a lie, and I can prove it," used in reference to a judicial proceeding in which the plaintiff had testified as a witness; or, under similar circumstances, the words, "He swore a lie." Where the charge is of false

ΙΟ

" II

9

or,

1 Hob. 12.

2 Sherwood v. Chace, 11 Wend. 38; Crookshank v. Gray, 20 Johns. 344; McClaughry v. Wetmore, 6 Johns. 82; Jacobs v. Fyler, 3 Hill, 572; Coons v. Robinson, 3 Barb. 625; Morgan v. Livingston, 2 Rich. 573; Hillhouse v. Dunning, 6 Conn. 391. Defendant said, Thou art a forsworn fellow; plaintiff answered, Will you say that I am perjured? defendant said, Yes, if you will have it so-held not actionable. (Levermore v. Martin, Cro. Eliz. 297.)

3 Gilman v. Lowell, 8 Wend. 573.

Phincle v. Vaughan, 12 Barb. 215.

5 Pelton v. Ward, 3 Cai. 73. "You have been indicted before the grand jury for false swearing," held actionable per se. (Brace v. Brink, 33 Mich. 91.)

19 Lewis v. Black, 27 Mass. (5 Cush.) 425; Rineheardt v. Potts, 7 Ired. Law (N. Car.) 403; Rainey v. Thornbury, 7 B. Mon. 475; Sherwood v. Chace, II Wend. 38.

11 Harris v. Purdy, 1 Stew. 231; and see Wilson v. Harding, 2 Blackf. 190; Gibbs v. Tucker, 2 A..K. Marsh. 219; and 6 T. R. 691.

swearing before a particular court or tribunal, or in a particular proceeding, naming it, the charge is actionable, if the court or tribunal named is one authorized to administer an oath, or if the proceeding named is a judicial proceeding; thus, it has been held actionable to say of one, he swore false before the grand jury; or, “Thou art a forsworn knave, and I will prove thee to be forsworn in the spiritual court; or, "Thou wast forsworn before my Lord Chief Justice in evidence; "3 or "before a justice

2

of the peace; or, "in Ilston Court," a court leet so

named; or, "I had a lawsuit with A., and B. [the plaintiff] swore falsely against me, and I have advertised him as such; "6 "You swore false at the trial of your brother John." Held not actionable to say of one, "Thou wert forsworn at Whitechurch court;" or "Thou art a false and forsworn knave, and that I will prove, for thou forswore thyself against Peter Rumball in the hundred court." An arbitration is a judicial proceeding, and false swearing in such a proceeding is perjury; there

1 Perselly v. Bacon, 20 Miss. 330.

* Shaw v. Thompson, Cro. Eliz. 609; and see Rex v. Foster, Russ. & R. Cr. Cas. Resv. 459; Stat. 40 Geo. IV, ch. 76. False swearing before an ecclesiastical tribunal is not perjury in Pennsylvania. (Harvey v. Boies, 1 Penn. [Penr. & W.] 12; contra, in Connecticut, Chapman v. Gillet, 2 Conn. 40.)

3 Lev. 127; Starkie on Slander, 90.

4 Gurneth v. Derry, 3 Lev. 166; 4 Coke, 17.
Marshall v. Dean, Cro. Eliz. 720.

Magee v. Stark, 1 Humph. 506. The words, I had a lawsuit, imply a judicial proceeding. (Id.)

'Fowle v. Robbins, 12 Mass. 498. The words were held actionable after verdict (and see Cro. Car. 378); but the words, You swore falsely on the trial of a case between me and A., before Squire J., were held not actionable. (Dalrymple v. Lofton, 2 Speer, 588.)

Cro. Car. 378. Because it did not appear that Whitechurch court was a court of record, and for the same reason the words, "Thou hast forsworn thyself in Leake court," were held not actionable. (1 Rolle Abr. 39; 6 Bac. Abr. 207; see Dalton v. Higgins, 34 Ga. 433.) But the words, "A. C. is a forsworn man, and hath taken a false oath in his deposition at Tiverton, where he waged his law against me," were held actionable, because the forswearing appeared to amount to perjury. (Cro. Jac.

Core 2. Morton, Yelv. 27. So ruled after verdict.