Wilkes County NcArchives Court.....William Dula, Francis Browne V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 7:22 pm

Source: Nc Reports
Written: 1819

Francis Browne v. William Dula

From Wilkes

November Term 1819

In a charge of forswearing, unless it appear from the accompanying words, that 
a judicial forswearing was meant, the Plaintiff must shew upon the record, 
that the Defendant alluded to some particular forswearing, which amounted to 
perjury.

Therefore, where the Plaintiff charged in his Declaration, that the Defendant 
said of him. "He swore a lie and I can prove it," and there was no colloquium 
set forth of any judicial proceeding, the Plaintiff was nonsuited.

This was an action on the case, for slanderous words spoken of the Plaintiff. 
The declaration charged, that "Whereas, Francis Browne is a good, true, 
honest, just and faithful citizen of this State, and as such hath always 
behaved and conducted himself, and until the committing of the several 
grievances by the said William Dula, hereinafter mentioned, was always 
reputed, esteemed and accepted, by and amongst all his neighbors, and other 
good, worthy citizens of the State, to whom he was in any wise known, to be a 
person of good name, fame and credit; and whereas he hath never been guilty, 
nor until the time of committing the several grievances by the said William 
Dula, herein-after mentioned, been suspected of being guilty of perjury or any 
other such crime, by means of which said premise; he hath deservedly obtained 
the good opinion and credit of all his neighbors, and other good and worthy 
citizens of this State to whom he was in anywise known, to-wit, at Wilkes 
aforesaid; yet the said William Dula well knowing the premises, but greatly 
envying the happy state and condition of the said Francis Browne, and 
contriving and wickedly and maliciously intending to injure the said Francis 
Browne in his said good name, fame and credit, and to bring him into public 
scandal, infamy and disgrace, with and amongst all his neighbours and other 
good citizens of this State, and also to cause him to he suspected and 
believed, by those neighbours and citizens, to be guilty of perjury, and that 
he had subjected himself to the pains and penalties, by the laws of this 
State, inflicted upon persons guilty of said crime, and to harrass and ruin 
the said Francis Browne, heretofore, to-wit, &c, then and there in the 
presence and hearing of the said last mentioned citizen, falsely and 
maliciously spoke and published of and concerning the said Francis Browne, 
these false, scandalous, malicious and defamatory words, that is to say. "He 
swore a lie and I can prove it," meaning that the said Francis Browne had 
committed wilful and corrupt perjury; by means of committing which said 
several grievances.

Upon the trial of the cause, the Plaintiff proved, that he and one James 
Allison were standing together in the street in Wilkesborough. 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 
Plaintiff and Defendant, and had heard that upon the trial of an indictment 
against Defendant in Wilkes Court, the Plaintiff had been examined as a 
witness for the State, and the record of this prosecution was given in 
evidence. The Jury gave a verdict for the Plaintiff, subject to the opinion of 
the Court upon the question, whether the words as laid in the declaration, 
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 as 
charged were not actionable; and gave judgment accordingly. The Plaintiff 
appealed.

Taylor, Chief Justice: It is established by a long series of cases, that to 
say a man is forsworn, 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. 

In a charge of forswearing, unless from the accompanying words, it is clear 
that a judicial forswearing was meant, the Plaintiff must shew upon the record 
that the Defendant alluded to some particular forswearing which amounted to 
perjury. Thus, in a declaration for saving "A. B. being forsworn, compounded 
the prosecution," no introduction of extrinsic facts is necessary, since an 
indictable forswearing must have been meant. But in declaring for the 
words, "he has forsworn himself in Leake Court," it is necessary to shew that 
Leake Court was one in which the offense of perjury could have been committed. 
Actions of slander do not lie upon inference.

It has been held, that to accuse another of having forsworn himself, 
generally, is actionable, 2 Buls, 40; but it seems now perfectly settled that 
such an accusation is not actionable, unless it appear from the accompanying 
circumstances, to have meant such a forswearing as would constitute the 
offense of perjury.   


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