Small v. Clewley , 60 Me. 262 ( 1872 )

Walton, J.

In an action of slander, where the words ‘you swore to a lie, and I can prove it,’ are relied on as imputing to the plaintiff the crime of perjury, there must be an averment in the declaration, that the words were spoken with reference to some proceeding before a court, or tribunal, or officer created by law, or in relation to some matter or thing where an oath is authorized by law; and the averment must be supported by'proof, or the action is not maintainable. The general averment that the defendant intended thereby to charge the plaintiff with the crime of perjury is not sufficient. The averment must be specific, naming the particular court, or tribunal, or officer, or matter, or thing in relation to which the alleged false swearing is said to have taken place, or it will not be sufficient.

In this case there is no such averment, and no such proof. It is in one place stated that the defendant said, ‘ you have committed the crime of perjury.’ This would be a sufficient allegation to support the action, if it was sustained by the proof. But it is not. The other allegation is that the defendant said ‘ you swore to a lie, and I can prove it, or will prove it.’ But there is no colloquium connected with this averment to show what matter or proceeding the supposed false swearing referred to; or before what court, tribunal, or officer it took place. If it had been averred that the plaintiff was a witness before the commissioners of insolvency, and that the words spoken had reference to his testimony then and there given, the averment would have been sufficient; and if supported by the evidence, would have made out a prima facie case for the plaintiff. But there is neither this, nor any similar averment. Nor is there any evidence to support such an averment if one had been made. The same defects exist in both counts of the declaration. '

It is clear, therefore, that upon such a declaration, and such evidence, the action is not maintainable. Patterson v. Wilkinson, 55 Maine, 42; Emery v. Prescott, 54 Maine, 389, and authorities there cited. Plaintiff nonsuit.

Appleton, C. J.; Cutting, Kent, and Barrows, JJ., concurred.