but adjudged for the plaintiff. And so in an action by a physician for words of him in his profession, it is sufficient for him to aver that he had used and exercised the profession of a physician; but where a plaintiff in such a case went further, and averred that he was a physician, and had duly taken the degree of a doctor of physic, it was held that he must prove his degree as stated.2

§321. In a complaint founded upon a charge of false swearing as a witness, such a charge not being actionable per se (§ 171), to show a cause of action there should be an inducement of the pendency of a suit or judicial proceeding, in which the plaintiff was examined as a witness, and a colloquium that the charge was concerning the plaintiff as such witness.3 If there were several suits between the same parties, tried on the same day, it is not necessary, it seems, to distinguish in which suit the false swearing occurred. And where the suit or proceeding was before a court or officer of limited jurisdiction, it must be further shown that such court or officer had jurisdiction of the suit or proceeding; an averment that the justice then and there had jurisdiction of the action was held sufficient without setting forth the facts which

1 Dr. Brownlow's Case, Mar. 116, pl. 3; and ante, §§ 182, 183, 189.

2 Moises v. Thornton, 8 T. R. 303.

3 Stone v. Clark, 21 Pick. 51; Gale v. Hays, 3 Strobh. 452; Sharp v. Wilhite, 2 Humph. 434; Williams v. Spears, 11 Ala. 138; and semble it should be alleged that defendant intended to impute a charge of perjury. (Wood v. Scott, 13 Vt. 42; Sanderson v. Hubbard, 14 Id. 462.) It is not necessary to state what the witness testified. (Whitaker v. Carter, 4 Ired. 461.) A complaint for slander set out that in a suit before a justice P. F. was a witness to material matter; that defendant, in a conversation concerning, said trial and concerning the plaintiff being guilty of subornation of perjury, published, &c., the words, "P. F. swore to a lie, and you [plaintiff] hired him." It was objected to the complaint that it did not allege that that the conversation was of and concerning the testimony of P. F. on the trial. Held, after verdict, the complaint was good. (Shimer v. Bronnenburg, 18 Ind. 363.) Declaration for false swearing in Virginia (Hogan v. Wilmoth, 16 Gratt. 80); in Indiana (Dorset v. Adams, 50 Ind. 129).

Harris v. Purdy, I Stew. 231.

gave the jurisdiction.' The plaintiff need not show that the justice was duly commissioned." A declaration which alleged that the words were spoken "whilst the plaintiff was giving testimony as a witness under the solemnities of an oath, before an acting justice of the peace," 3 and a declaration which alleged that the plaintiff was, at the instance of the defendant, examined on oath administered by a justice, according to law, as a witness for the defendant, were held sufficiently to allege jurisdiction.* Squire H." was held a sufficient description of P. H., esquire, a justice of the peace.s

§ 322. It should be alleged that the testimony was material to the point in issue, but it is not necessary to show to what particular degree the point in respect to which a party is charged with false swearing was material to the issue. If it goes to prove a material circumstance or link in the chain of evidence, it is sufficient. And it has been said that an averment of the materiality of the

1 Sanford v. Gaddis, 13 Ill. 329.

2 Pugh v. Neal, 4 Jones' Law (N. Car.) 367. It was held not necessary to allege either that the justice had jurisdiction or that the testimony was material. (Dalrymple v. Lofton, 2 M'Mullan, 112.) But as to the necessity of alleging jurisdiction, see Shellenbarger v. Norris, 2 Carter (Ind.) 285 ; Jones v. Marrs, 11 Humph. 214; Chapman v. Smith, 13 Johns. 78; Bonner v. McPhail, 31 Barb. 106; Cannon v. Phillips, 2 Sneed (Tenn.) 185.

Where the charge is that the plaintiff committed perjury, that implies a false swearing before a competent tribunal, and jurisdiction need not be alleged. (Green v. Long, 2 Cai. 91.) Where the charge is perjury committed in a foreign State, it must be averred that by the laws of such State perjury is an offense to which is annexed an infamous punishment. (Sparrow v. Maynard, 8 Jones' Law (N. Car.) 195; and see ante, note 2, p. 228.)

3 Lewis v. Black, 27 Miss. (5 Cush.) 425.

4 Shellenbarger v. Norris, 2 Carter (Ind.) 285.

5 Call v. Foresman, 5 Watts, 331; and see ante, note 4, p. 205: "N. T., esquire, aforesaid," held sufficient description of a justice of the peace. (Canterbury v. Hill, 4 Stew. & Port. 224.)

6 Hutchins v. Blood, 25 Wend. 413; and see Witcher v. Richmond, 8 Humph. 473; Shroyer v. Miller, 3 W. Va. 158; Hogan v. Wilmarth, 16 Gratt. 80; note 3, p. 248, ante.

evidence may be altogether omitted; at least the absence of such an allegation will be cured by verdict.* It is not necessary to allege that the justice had authority to administer the oath.3 But it should be alleged that the plaintiff was legally sworn. The defendant cannot show as a defense that the plaintiff was not a competent witness. The absence of allegations of jurisdiction in the justice or materiality of the testimony may be cured by a plea of justification," or by a verdict."

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323. Properly the colloquium or allegation of a discourse is the allegation that the language published was concerning the plaintiff, or concerning the plaintiff and his affairs, or concerning the plaintiff and the facts alleged as inducement (§ 129). But the term colloquium is frequently employed as synonymous with inducement, or to signify the inducement and the colloquium properly so called. As heretofore stated (§§ 310, 316), it must be shown on the face of the complaint that the language was published concerning the plaintiff, and the proper mode of doing this is by a direct averment that the publication was "of and concerning the plaintiff." This

1 Wetsel v. Lennen, 13 Ind. 535; Cannon v. Phillips, 2 Sneed, 185; Wolbreiht v. Baumgarten, 26 Ill. 291; Harbison v. Shook, 41 Ill. 142.

1 Niven v. Munn, 13 Johns. 48. In slander for the charge of perjury, the materiality of the alleged false testimony is for the court to determine, and if left to the jury it is error. (Steinman v. McWilliams, 6 Barr, 170; Power v. Price, 12 Wend. 500; affirmed 16 Wend. 450.) Or ground for a new trial. (Dalrymple v. Lofton, 2 M'Mullan, 112.)

3 Sanford v. Gaddis, 13 Ill. 329; but see Jones v. Marrs, 11 Humph. 214.

4 Sanderson v. Hubbard, 14 Vt. 462.

Harris v. Purdy, 1 Stew. 231. A declaration in slander, charging the words spoken as follows: " He (meaning plaintiff) has sworn falsely," &c., "against me (meaning defendant), and he (meaning defendant) could prove it." was held bad after verdict; by "he" in the latter clause, as pleaded, the defendant could not have meant himself. (Bowdish v. Peckham, 1 Chip. 146; but see post, note to § 343.)

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Witcher v. Richmond, 8 Humph. 473; Attebury v. Powell, 29 Miss. (8 Jones) 429; Sanderson v. Hubbard, 14 Vt. 462.

'Palmer v. Hunter, 8 Mo. 512; Morgan v. Livingston, 2 Rich. 573; Niven v. Munn, 13 Johns. 48; but see Wood v. Scott, 13 Vt. 42.

averment may, however, be supplied by any equivalent allegation, and may be altogether dispensed with where it appears otherwise with sufficient certainty on the face of the complaint that the publication was in fact concerning the plaintiff. plaintiff. And although, in actions for slander and libel, inducement may be necessary to explain the matter alleged to be libelous, it is enough to state in the declaration that the publication was "of and concerning" the plaintiff, without also stating that it was "of and concerning" such matter, or of and concerning

1 It is sufficient to aver substantially that the words were spoken of plaintiff; an express averment of the fact is not necessary. (Brown v. Lamberton, 2 Binn. 34; Brashen v. Shepherd, Ky. Dec. 294; Nestle v. Van Slyke, 2 Hill, 282; but see Titus v. Follett, 2 Hill, 318; Tyler v. Tillotson, 2 Hill, 508; Cave v. Shelor, 2 Munf. 193; Harper v. Delp, 3 Ind. 225; Rex v. Marsden, 4 M. & S. 164; Baldwin v. Hildreth, 14 Gray [Mass.] 221.) On demurrer, where the words did not name the plaintiff, the omission of a colloquium of and concerning the plaintiff was held fatal, and not aided by the innuendoes. (Milligan v. Thorn, 6 Wend. 412; and see Church v. Bridgman, 6 Miss. 190.) Nor by the verdict, the language being in the third person. (Sayre v. Jewett, 12 Wend. 135.) If there be a colloquium sufficient to point the application of the words to the plaintiff, if spoken maliciously, he must have judgment. (Lindsey v. Smith, 7 Johns. 359.) Where actionable words are spoken to a plaintiff, it is sufficient to allege a discourse with him, without an averment that the words were concerning the plaintiff. (Osborn v. Jorshee, 22 Mich. 209.) But where the words are in the third person, as, “He is a thief," there, although a discourse of the plaintiff is alleged, it must also be alleged that the words were concerning the plaintiff. And it is not sufficient in such a case to connect the words with the plaintiff by an innuendo. (1 Stark. Sland. 384.) But where a discourse of the plaintiff is laid, and there is an innuendo of the plaintiff, it seems that the want of a direct averment that the words were concerning the plaintiff must be pointed out by special demurrer [motion to make certain]; but if no discourse concerning the plaintiff is alleged, then the want of an allegation that the words concerned him would be a defect in substance. (Id.; Skutt v. Hawkins, 1 Rolle R. 244.) If a plaintiff has omitted, in his declaration, to state that the libel was spoken of himself, he may supply the same by parol evidence. (Newbraugh v. Curry, Wright, 511.) Where A. says of B. & C.," you have committed such an offense," though B. & C. may have separate actions, the words must be alleged to have been spoken of both. (Cro. Car. 512.) Where the declaration states a colloquium with G., of and concerning the children of G., and of and concerning C., one of the children of G., and the plaintiff in the suit in particular, and that the defendant said, "Your children are thieves, and I can prove it," the colloquium conclusively points the words, and designates the plaintiff as one of the children intended. And a colloquium is sufficient to give application to words still more indefinite. (Gidney v. Blake, 11 Johns. 54; but see what is said I Stark. Sland. 385; see also ante, § 129.)

2 O'Brien v. Clement, 4 D. & L. 563; Gutsole v. Mathers, I M. & W. 495; Shimer v. Bronnenburg, 18 Ind. 363.

the plaintiff in the occupation alleged in the induceWhere the declaration alleged that the defendant published a libel of and concerning the plaintiff, containing, &c., the false libelous matters following (without saying of and concerning the plaintiff); held, in error, that for want of an averment that the particular matter was of and concerning the plaintiff, and there being no innuendo that such matter related to him, the declaration was bad, and a venire de novo was awarded.* A declaration which alleged that the plaintiffs were traders under the firm of T. & Co., and averring that, in a discourse of and concerning them, their circumstances and business, the defendant said, "T. & Co. are down," &c., without repeating that this was said of and concerning the plaintiffs, was held bad on special demurrer, although good in substance.3

324. A publication by the defendant must be alleged. The publication need not be set forth in any technical form of words. But it must be alleged positively, and not by way of recital; and, therefore, a declaration which commenced, "For that whereas" the defendant intending, &c., spoke, &c., was held bad on special demurrer." In slander for English words, it

1 Wakley v. Healey, 18 Law Jour. Rep. 241, C. P.; contra, see Barnes v. Trundy, 31 Maine (1 Red.) 321.

2 Clement v. Fisher, 7 B. & Cr. 459; 1 M. & Ry. 281.

3 Titus v. Follett, 2 Hill, 318; and see Taylor v. State, 4 Ga. 14. Where the meaning of the language is uncertain, or where it is uncertain to whom the language refers, the complaint should contain averments showing the meaning of the language and to whom it refers. (Carey v. Allen, 39 Wis. 481.)

'Baldwin v. Elphinstone, 2 W. Black. 1037; Wallis v. Morgan, 50 Ind. 318; Roberts v. Lovell, 38 Wis. 211; ante, note 2, p. 151. It was held sufficient to allege that the defendant was the proprietor of the newspaper in which the alleged libel was published. (Hunt v. Bennett, 19 N. Y. 173.)

'Donage v. Rankin, 4 Munf. 261.

Brown v. Thurlow, 4 D. & L. 301; 16 M. & W. 36; Coffin v. Coffin, 2 Mass. 358; Houghton v. Davenport, 23 Pick. 235.