Washington County IL Archives Court.....Blair, V Sharp 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:05 pm

Source: Reports Of Cases Illinois
Written: 1819-31

SUPREME COURT OF THE STATE OF ILLINOIS.
DECEMBER TERM, 1820, AT VANDALIA.

Present, JOSEPH PHILIPS, Chief Justice. JOHN REYNOLDS, THOMAS. C. BROWNE, 
WILLIAM WILSON, Associate Justices. 

George Blair and Wife, Plaintiffs in Error, v. Henry Sharp, Defendant in Error.

ERROR TO WASHINGTON.

An omission of a colloquium, in a declaration for slander in charging the 
Plaintiff with swearing a lie, is fatal. (1)

This was an action of slander brought in the Washington circuit court by Blair 
and wife, against Sharp. From the agreed case, it appears, that the only words 
charged in the declaration to have been spoken of the plaintiff by the 
defendant, were, that the plaintiff "had swore a lie." There was no colloquium 
showing how, or on what occasion the lie was sworn. The court below declared 
the declaration insufficient, and that the words as stated, were not 
actionable. To reverse that judgment, a writ of error was sued out by 
plaintiff.

Opinion of the Court. The omission of a colloquium, showing to what the words 
spoken, referred, so as to render them actionable, we consider fatal. The 
declaration is not good at common law, nor under the statute. The declaration 
does not bring the case within the letter or meaning of the statute. The 
judgment of the court below is affirmed, with costs. (a)

Judgment affirmed.

----------------------
(1) Such was the rule of the common law, but it is now materially changed in 
this state, by statute. Section 2, page 1137, Scate's Comp'l. Purple's 
Statutes, page 1126, provides that, "It shall be deemed slander, and shall be 
actionable, to charge any person with swearing falsely, or with having swore 
falsely, or for using, uttering or publishing words of, to, or concerning any 
person, which in their common acceptation, amount to such charge, whether the 
words be spoken in conversation of and concerning a judicial proceeding or 
not." And under this statute the court held that "Words which, in their common 
acceptation, amount to a charge of having sworn falsely, are actionable, 
whether spoken of and concerning a judicial proceeding or not; and are none 
the less actionable because the declaration avers that they were spoken in a 
conversation concerning a judicial proceeding." "It is not necessary that the 
words spoken in a conversation concerning a judicial proceeding, should be 
spoken under such circumstances as to impute the crime of perjury." Sanford v. 
Gaddis, 13 Ills., 329.

In an action of slander for words used charging false swearing, where the 
defendant by his pleas has based his defense on the fact that the plaintiff 
was guilty of perjury, he will be required to prove the fact of the perjury. 
He must make out the defense which he has chosen in his pleadings, even though 
he was not obliged to charge perjury in order to justify the words spoken. 
Hicks v. Rising 24 Ill., 566.

The first section of the statute above referred to also provides that "If any 
person shall falsely use, utter or publish words which, in their common 
acceptation, shall amount to charge any person with having been guilty of 
fornication or adultery, such words so spoken shall be deemed actionable, and 
he, she or they, so falsely publishing, speaking or uttering the same, shall 
be deemed guilty of slander." And under that section of the statute the court 
said: "Words, which in their common acceptation, amount to a charge of 
fornication, are slanderous, and are actionable without colloquium or 
innuendo; and the latter, if used, is at most but surplusage." Elam v. Badger, 
23 Ill., 498.

In an action of slander for words charging the plaintiff with fornication or 
adultery, no reference need be made in the pleadings to the statute on that 
subject. id.

(a) To say that the plaintiff has swore false, or taken a false oath, is not 
actionable. 8 Johns. Rep., 109. There must be a colloquium of its being in a 
cause pending in a court of competent jurisdiction, and on a point material to 
the issue. 13 Johns. Rep., 48. 1 Caine's Rep., 347. 2 Johns., 10. The term 
foresworn is not in itself actionable. 6 T. R., 691. 8 East., 427. Vide Laws 
of Illinois, 1823, p. 82.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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