Martin v. Melton
| Decision Date | 07 June 1815 |
| Parties | Martin v. Melton. |
| Court | Kentucky Court of Appeals |
" You have sworn a lie and I can prove it," etc. are not actionable, unless laid with a colloquium concerning an oath in a judicial proceeding.
The inuendo cannot supply the want of the colloquium, nor enlarge the signification of the words -- Accord. vol. 2, Porter v. Hughey, 232 -- Watson v. Hampton, 319.
If the defendant apply to the Court to instruct the jury to disregard a count which is faulty, which motion is overruled and entire damages are given; the judgment must be reversed although the other counts are good.
THIS was an action of slander, in which there are several counts laid in the declaration. The first of which charges these words, viz: " You (meaning the plaintiff) have sworn a damned lie, and I can prove it by Clemens, meaning one Stephen Clemens; thereby charging the plaintiff with the commission of willful and corrupt perjury."
The other counts are in substance the same, but are laid with colloquium.
Upon the plea of justification, the defendant moved the Court to instruct the jury to disregard the first count as faulty and insufficient; which the Court refused to do, and overruled the motion. To which opinion of the Court the defendant filed exceptions; and the refusal of the Court to give the instructions, is assigned for error.
There is no doubt the words of themselves are not actionable. They do not necessarily import perjury, or that the swearing was in some judicial proceeding. They might have been spoken in relation to some private and extrajudicial transaction; and therefore, if true, could not subject the party to a prosecution for having sworn falsely; and so not actionable. They are not laid with a colloquium, or to have been spoken, in a conversation with others in reference to a particular judicial procedure, as is laid in the other counts. And the inuendo, as that the plaintiff thereby meaning had been guilty of perjury, cannot render words actionable, which in law are not actionable, or change their legal import.
By the act regulating civil proceedings, (1 Litt. 500) it is provided that where there are several counts, and one of which faulty, the defendant may apply to the Court to instruct the jury to disregard such count.
As then the first count in the declaration in the present case is defective, and the Court refused to give the instruction asked for, t...
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