CALEDONIA, is no allegation that the oath was administered by a justice of the peace, or any person having authority.

March, 1842.

Sanderson

v.

Hubbard.

The distinction to be found in the cases is this; when the declaration shows the cause was tried before a court which, by law, have authority by themselves, or their clerk, to administer oaths, then the allegation that the plaintiff was examined on oath, before said court, is sufficient. But if the court has not, necessarily, such authority, then it is necessary to allege and prove who did administer the oath, and also that he had competent authority to administer it. See forms 2 Chitty's Pl. 637, and others. Hopkins v. Beedle, 1 Caines' R. 347. Ward v. Clark, 2 Johns. R. 10. 9 Cowen's R. 30. There is no colloquium of the trial which is necessary to make the words actionable.

There is no allegation that the plaintiff's testimony was material to the issue. 3 Johns. Dig. 557. Rouse v. Ross, 1 Wend. 475.

Where the words are not actionable in themselves, and only become so by reason of extrinsic matter, it is necessary to allege a conversation about the plaintiff and about the extrinsic matter, and also that the words were spoken in that conversation. An allegation that the words were spoken of and concerning the plaintiff, &c., is not sufficient. But if the words are actionable, as a direct charge of perjury, it is sufficient. 2 Chitty's Pl. 634, 641, and 641, b. Ryan & wife v. Madden, 12 Vt. R. 51. Gedney Gedney v. Blake, 11 Johns. R. 54. Milligan v. Thorn, 6 Wend. 412. Van Vechten v. Hopkins, 5 Johns. R. 220. 2 Wheaton's Selwyn, 1278.

The words set forth in the declaration are not actionable, in themselves. Holt v. Scofield, 6 T. R. 691. Hawkes v. Hawky, 8 East, 427. Ward v. Clark, 2 Johns. R. 10. Chapman v. Smith, 13 do. 78. Vaughan v. Havens, 8 do. 109. Crookshank v. Gray, 20 do. 344. 2 Johns. Dig. 382.

Neither does the plaintiff allege that the defendant meant to impute the charge of perjury to him, nor that he was so understood by the hearers. The plaintiff should have added an innuendo, that the defendant meant to impute to him the crime of perjury. And the court cannot say that the plaintiff proved on trial, or that the jury found, that the defendant meant to impute perjury to the plaintiff. It could not be proved, as it was not alleged in the declaration.

Sanderson

v.

The first three objections to the first count apply to the CALEDONIA, March, second. The words in the second count are, 'you took a 1842. 'false oath about that fence, and I will bring you up for it.' This is bad, as there is nothing previously stated to which it can refer. There is no allegation that the arbitrators had any thing to do with a fence, or that the plaintiff had ever testified about a fence, or that there was any colloquium about a fence, or any thing, in which the plaintiff could have committed perjury.

The words are not actionable in themselves, and are not connected with any thing to make them so.

Most of the objections to the first and second counts apply to the third. But if the court find either count bad, the judgment must be arrested in toto.

The defects are not cured by verdict. Weare, 8 Vt. R. 480.

T. Bartlett, for plaintiff.

Huseltine v.

From the books, the general doctrine, in relation to the requisites of a good declaration for slanderous words, seems to be, that where the words spoken are prima facie actionable of themselves, without reference to any extrinsic matter, it is sufficient to state the defendant's malicious intent, and the slander concerning the plaintiff, without stating any inducement. But where the words spoken do not of themselves convey the meaning the plaintiff would assign to them, or are equivocal, and require explanation, by reference to some extrinsic matter to show that the words are actionable, then, in such case, four allegations are necessary to make a good declaration for words imputing perjury; first, that the plaintiff gave evidence on oath, and the occasion, and before whom; secondly, a colloquium or speaking by the defendant of and concerning the plaintiff, or with reference to such evidence; thirdly, the words themselves, and, fourthly, the innuendo, that the defendant meant by the words alleged to impute perjury to the plaintiff; all of which allegations are contained in the plaintiff's declaration.

And we confidently believe that the declaration, in the present case, is drawn in strict conformity with the practice of the most approved pleaders and precedents. See precedents in declarations for slander in 2 Chitty's Pleadings,

Hubbard.

CALEDONIA, 634; 2 Saunders' Pl. & Ev. 805; 2 Swift's Digest, 423; March, Oliver's Precedents, 323; 1 Chitty's Pl. 381; American Precedents of Declaration, 243; 2 Swift's Digest, 425.

1842.

Sanderson

D.

Hubbard.

The opinion of the court was delivered by

ROYCE, J.-It is well settled by the decisions in actions for slander, that the words set forth in either count in the present declaration do not, of themselves, amount to an accusation of perjury. They do not import with sufficient certainty that the false oath was taken under any judicial, or other legal sanction. And, hence, to render these words actionable, it should appear that they were spoken with reference to some proceeding in which an oath might lawfully be administered, and in which a false statement, under oath, might amount to legal perjury. It should also appear that the party speaking the words designed to accuse the other of that crime. It is, therefore, required, in declaring upon such words as are here given, to accompany them with an introductory statement or colloquium, alleging the occasion on which they were spoken, and the proceeding to which they related; as also with an innuendo, showing the injurious sense in which they were uttered.

The declaration before us contains a sufficient colloquium, and, to the words set forth in the second and third counts, is added an innuendo, in which the meaning of the words is given as intended by the defendant. But the first count is still left without an innuendo to indicate any intended charge of perjury, and an alleged defect, also, remains which is applicable to all the counts, namely, the want of any averment that the plaintiff was legally sworn to give testimony before the arbitrators. The averment merely is, that he was examined on oath and gave evidence.'

But conceding that the declaration was demurrable for one or both of these defects, we observe that the defendant, instead of demurring, pleaded in bar. In that plea he expressly admits, or rather alleges, that the plaintiff, ' was examined on oath, and gave his evidence as a witness' before the arbitrators. He further alleges that the plaintiff' in giving his said evidence did, on his said oath, knowingly, falsely and corruptly swear and affirm, of and concerning a certain exhibit against the defendant,' &c. And he pro

March, 1842. Sanderson

v.

Hubbard.

ceeds to say, that, inasmuch as the plaintiff had so know- CALEDONIA, 'ingly sworn falsely and corruptly to the facts aforesaid, 'which were then and there deemed material on said trial,' he, the defendant, spoke the words complained of. We are satisfied that by thus pleading over, and making these allegations, the defendant has obviated all valid objections to the declaration. Wood v. Scott, 13 Vt. R. 42. It is a rule coeval with the science of pleading, not only that facts admitted by the pleadings need not be proved, but that a party shall not be allowed to allege or insist against his previous admission or allegation in pleading. According to this rule, it was no longer necessary for the plaintiff to prove either the speaking of the words declared on, or that he was examined on oath and gave his evidence as a witness before the arbitrators; for all this is not merely admitted, but expressly alleged in the plea. There is also, a rule, that each part of the pleadings shall be construed most strongly against the party pleading it. And it is upon that ground, if any, that the declaration could have been regarded as defective, in not showing more directly and expressly that the plaintiff was duly sworn as a witness. But the same rule applied to to the plea must operate to supply any defect of the declaration in this particular. The averments in the plea are to be taken in as strong a sense against the defendant, as the ordinary use of such language will justify. The allegation, that the plaintiff was examined on oath as a witness, should therefore, be understood to mean, that he was examined in a legal manner, and under the usual responsibilities of a witness; having been first duly sworn before a magistrate. And this being so, it follows that the want of an innuendo in the first count of the declaration is equally supplied by the plea. For since the plaintiff is charged in the plea with every fact which goes to make up a full definition of perjury, the defendant is no longer at liberty to insist that he did not intend to impute that crime by the words complained of. Judgment affirmed.

ESSEX COUNTY.

MARCH TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

JONAH BROOKS, JR. & Co. v. WILLIAM JEWell.

Goods delivered in payment of a preexisting debt cannot be recovered for in an action on book, nor by plea in offset.

But, when, from the nature of the contract, it is contemplated that goods should be charged on book, or there is to be a subsequent adjustment, an action may be maintained therefor, although it was intended that the account was to be applied in payment.

When an account is payable in goods out of the store of a party, it is not necessary to demand the goods before a suit is brought to recover the amount of the account, if such party cease trading before suit brought and was not in a situation to pay the goods, and there had been no unreasonable delay on the part of the creditor in calling for them.

ASSUMPSIT on a promissory note given by the defendant to the plaintiffs for $13.18, dated March 10, 1834. The action was commenced before a justice of the peace. The defendant filed a declaration on book in offset, before the justice, and also in the county court, the case having been appealed to the county court, and, upon that declaration, judgment to account was rendered and an auditor was appointed who afterwards reported, in substance, as follows;— The defendant's account was for one thousand cedar posts,