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fore, to charge false swearing in such a proceeding is actionable; but perjury cannot be predicated of evidence in a controversy relative to pre-emption rights before the registers, &c., of the land office, and therefore a charge of false swearing in such a controversy is not actionable.2 Ordinarily words are actionable which imply in their customary import that a false oath has been taken in a judicial proceeding,3 as, you swore false in court, and this, although the proceeding referred to never had any existence. Saying of one, he swore to a damned lie, but I am not liable, because I have not said in what suit he testified, was held not actionable. To say to a witness, whilst giving his testimony on a trial in court, "that is a lie;" or, "I believe you swear false. It is false what you say; or, "You have sworn a manifest lie," is actionable.

7

Swearing falsely as to immaterial matter does not amount to perjury, and therefore to charge false swearing

1 Moore v. Horner, 4 Sneed, 491; Ross v. Rouse, 1 Wend. 475; Bullock v. Koon, 9 Cow. 30; and see Sandford v. Gaddis, 13 Ill. 329.

* Hall v. Montgomery, 8 Ala. 510. Held not actionable to charge a voter with swearing falsely at an election for alderman for the city of Toronto. (Thomas v. Platt, 1 Up. Can. Q. B. 217.) Where the imputation was that plaintiff had taken a false oath, but not in a judicial proceeding, the plaintiff had a verdict for £2 10S. damages. The court refused a new trial, but arrested the judgment, the words not being actionable. (Hogle v. Hogle, 16 Up. Can. Q. B. 518.)

* Cass v. Anderson, 33 Vt. 182.

Hamilton v. Dent, I Hayw. (N. Car.) 116; see ante, note 7, p. 246.

'Bricker v. Potts, 12 Penn. St. R. 200; Henry v. Hamilton, 7 Blackf. 506. And though an affidavit for a warrant be insufficient to justify the granting of it, an action may be maintained for imputing perjury in making the affidavit, if any fact set forth in it be material to the application. (Dayton v. Rockwell, 11 Wend. 140; and see Bell v. Farnsworth, 11 Humph. 608.) Slander will lie on an accusation of perjury in a criminal cause, although the complaint therein was too defective for an irreversible judgment. (Wood v. Southwick, 96 Mass. 354.)

Muchler v. Mulhollen, Supp. to Hill & Denio's Rep. 263.

'Mower v. Watson, 11 Vt. 536. Probably not actionable to say, “He swore to a lie if he swore as Jones said he did." (Evarts v. Smith, 19 Mich. 55; see § 224, post.)

* Cole v. Grant, 3 Harr. 327.

Kean v. M'Laughlin, 2 S. & R. 469; McClaughry v. Wetmore, 6 Johns. 82; contra, Badgley v. Hedges, I Penn. 233; Spooner v. Keeler, 51 N. Y. 527.

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as respects matter which is immaterial to the issue involved, cannot, in any event or under any circumstances, be actionable; thus, saying of one that on a certain trial he testified to what was false, that the matter so testified to was immaterial, but that he, the party testifying, showed great disregard for the truth, was held not actionable. The test of materiality is not whether the witness believes his testimony to be material, but whether, if false, he can be indicted for perjury. If the testimony is in fact immaterial, it cannot be perjury, though it may be false, and whatever may be the opinion of the witness.3 Another essential element of perjury is, that the oath alleged to have been broken was administered by competent authority, and therefore to charge the breach of an oath not administered by competent authority would not be actionable (§§ 321, 322).

§ 172. Ordinarily, and in the absence of any statutory provision (153), words published orally charging a woman with want of chastity are not actionable per se;s

1 Horn v. Foster, 19 Ark. 346; Darling v. Banks, 14 Ill. 47; Wilson v. Oliphant, Wright, 153; Crookshank v. Gray, 20 Johns. 344; Ross v. Rouse, I Wend. 475 ; Dayton v. Rockwell, 11 Wend. 140; Power v. Price, 12 Wend. 500; s. c. 16 Wend. 450; Roberts v. Champlin, 14 Wend. 120; Wilson v. Cloud, 2 Speer, 1; Owen v. McKean, 14 Ill. 459; M'Gough v. Rhodes, 7 Eng. 625.

2 Stone v. Clark, 21 Pick. 51; and see McKinley v. Rob, 20 Johns. 351; Smith v. Smith, 8 Ired. 29; Wilson v. Cloud, 2 Speer, 1.

3 Ross v. Rouse, 1 Wend. 475. Perjury may be alleged in swearing to a promise within the statute of frauds, and therefore a charge of false swearing as to such a promise may be actionable. (Howard v. Sexton, 8 N. Y. 157.)

4 Jones v. Marrs, 11 Humph. 214; Dalton v. Higgins, 34 Ga. 433; Benkelt v. McCarty, 10 Bush (Ky.) 758; and see Van Steenbergh v. Kortz, 10 Johns. 167; Niven v. Munn, 13 Johns. 48; Cro. Car. 378; 1 Rolle Abr. 39.

I Starkie on Slander, 28; Byron v. Elmes, 2 Salk. 693; W. v. L. 2 Nev. & M. 204; Berry v. Carter, 4 Stew. & Port. 387; Eliot v. Ailsberry, 2 Bibb, 473; Keiler v. Lessford, 2 Cr. C. C. 190; Ranger v. Goodrich, 17 Wis. 78; Rogers v. Lacey, 23 Ind. 507; Pettibone v. Simpson, 66 Barb. 493; contra, in Connecticut (Frisbie v. Fowler, 2 Conn. 707), in Kentucky, since the statute of 1811 (McGee v. Wilson, Litt. Sel. Cas. 187; Smalley v. Anderson, 2 T. B. Mon. 56), in Illinois (Spencer v. M'Masters, 16 Ill. 405), in Missouri (Moberly v. Preston, 8 Mo. 462; Stieber v. Wensel, 19 Mo. 513), in Ohio (Malone v. Stewart, 15 Ohio, 319; Wilson v. Robbins, Wright, 40; Wilson v. Runyon, Id. 651; Sexton v. Todd, Id. 317), in Mary

as, thus, except in the city of London and borough of Southwark it is not actionable to call a woman a whore,' or prostitute, or common prostitute, or to charge an unmarried woman with having had a bastard,3 or to call a land (Terry v. Bright, 4 Md. 430), in Alabama (Sidgreaves v. Myatt, 22 Ala. 617; but see Berry v. Carter, 4 Stew. & Port. 387), in Indiana (Shields v. Cunningham, I Blackf. 86; Worth v. Butler, 7 Id. 251; Rodeburg v. Hollingsworth, 6 Ind. 639; Rodgers v. Lacey, 23 Ind. 507; Linck v. Kelley, 25 Ind. 278; Blickenstaff v. Perrin, 27 Ind. 527), in North Carolina (McBrayer v. Hill, 4 Ired. 136; Snow v. Witcher, 9 Id. 346), in South Carolina (Watts v. Greenlee, 2 Dev. 115; Freeman v. Price, 2 Bailey, 115), in Iowa (Beardsley v. Bridgman, 17 Iowa, 290; Cleveland v. Detweiler, 18 Id. 299; Cox v. Bunker, Morris, 369; Dailey v. Reynolds, 4 G. Greene, 354; Freeman v. Taylor, 4 Iowa, 424; Smith v. Silence, Id. 321; Snediker v. Poorbaugh, 29 Id. 488).

1 12 Mod. 106; Holt R. 40; Keb. 418; Sid. 97; Robertson v. Powell, 2 Selw. N. P. 1224; Alsop v. Alsop, 5 Hurl. & Nor. 534; Williams v. Holdridge, 22 Barb. 397; Linney v. Malton, 13 Texas, 449; Underhill v. Welton, 32 Vt. 40; Boyd v. Brent, 3 Brev. 241; contra, Pledger v. Hatchcock, I Kelly, 550; Cox v. Bunker, 1 Morris, 269; Mayer v. Schleichter, 29 Wis. 646. "Drunken whore," held actionable (Williams v. Greenwade, 3 Dana [Ky.] 432); and so was "whore." (Smith

v. Silence, 4 Iowa, 321; Kelly v. Dillon, 5 Ind. 426: Clarke v. Mount, Opinions in the Mayor's Ct. 18; Martindale v. Murphy, Barton [N. Brunswick], 85. The following words have been held actionable: “You are a whore. I can have a better whore for a groat. You get your living by your tail;" or, "You are a whore, and have played the whore with so many men you cannot number them;" or, "Thou art a whore and hast been carted; " or, "Thou art a whore and hast been in Bridewell;" or, "Thou art a whore, and hast emptied thy cask in the country;" or, "Thou art a whore, and thy plying place is in Cheapside, where thou gettest 40s. a day." (Vin. Abr. Act. for Words, D, a, 39, 42, 45.) The words import more than the bare calling a woman whore. (Hicks v. Joyce, Sty. 394; Bassil v. Elmore, 65 Barb. 627.) "Common whore," held actionable. (Green v. How, Sty. 323.) And held actionable to call one "A whore who held a copyhold dum casta vixerit." (Boys v. Boys, Sid. 214.) But held not actionable to say to or of a woman, You are a whore, and keep a man to lie with you" (Gascoigne v. Ambler, 2 Ld. Raym. 1004); or, “She is a whore, and had a bastard by her father's apprentice." (Graves v. Blanchard, 2 Salk. 696; and see Anon. Id. 694.) Calling a woman "whorish bitch," actionable in Alabama. (Scott v. McKinnish, 15 Ala. 662.) To call a woman a strumpet is not equivalent to calling her a whore. (Williams v. Bryant, 4 Ala. 44; contra, Cook v. Wingfield, 1 Stra. 555.) By custom in the city of Bristol, it is actionable to call a woman strumpet. (Power v. Shaw, I Wils. 62.) See in § 213, post.

66

* Brooker v. Coffin, 5 Johns. 188; Wilby v. Elston, 8 C. B. 142; 7 Dowl. & L. 143; 1 Starkie on Slander, 28. See ante, § 144, subd. y.

44

2 Vin. Abr. Act. for Words, D, a, 19, 23; Graves v. Blanchard, 2 Salk. 696, in note 1, supra; and saying to a married woman, Thou bold Colabynes, bastardbearing whore, thou didst throw thy bastard into the dock," at Whitechapel, held not actionable. (Colabyn v. Viner, W. Jones, 356.) So saying of a woman, "She had a child, and either she or somebody else made away with it," was held not actionable. (Falkner v. Cooper, Carth. 55.) "She had a child while at Mrs. Kirkwood's,"

woman a bawd,' or to charge an unmarried woman with fornication, or a married woman with adultery, or a woman with being of a wanton and lascivious disposition,* or of being addicted to self-pollution, or to say of a woman, "She was hired to swear the child on me; she has had a child before this, when she went to Canada; she would come damned near going to the State prison." But it has been held actionable to say of a woman, she is a "loose woman," or to charge conduct amounting to open and gross lewdness, or to say of a married woman, "She slept with one not her husband," or to charge an unmarried woman with being in the family-way; and

8

spoken of an unmarried woman, not actionable.

ΙΟ

(McQueen v. Fulghan, 27 Texas, 463.) In Ohio, held actionable to charge a woman with having had a bastard by the man she afterwards married. (Murray v. Murray, I Cinc. [Ohio], 290.)

1 Cavel v. Birket, Sid. 438; contra, Hicks v. Hollingshead, Cro. Car. 261.

2 Buys v. Gillespie, 2 Johns. 115; such a charge is actionable in Kentucky (Smalley v. Anderson, 2 T. B. Mon. 56), in Ohio (Wilson v. Robbins, Wright, 40), in North Carolina (McBrayer v. Hill, 4 Ired. 136), in Indiana (Rickett v. Stanley, 6 Blackf. 169), and in New Jersey (Joralemon v. Pomeroy, 2 N. Jersey, 271). Charging an unmarried woman with being "a bad character," and guilty of fornication, held actionable in Iowa. (Dailey v. Reynolds, 4 Greene, 354. And see ante, § 144, subd. I, and post, note 9, p. 254.)

3 Woodbury v. Thompson, 3 N. Hamp. 194; Stanfield v. Boyer, 6 Har. & J. 248 ; Griffin v. Moore, 43 Md. 426; contra, Miller v. Parish, 8 Pick. 384; and see Walton v. Singleton, 7 S. & R. 449. To charge a woman with fornication or adultery, or incontinence in any form, is not actionable at common law. (Heard on Libel, p. 46, citing in addition to the cases already noted, Ayre v. Craven, 2 Adol. & El. 2; 4 Nev. & M. 220; Evans v. Gwyn, 5 Q. B. 844. And see Davies v. Solomon, Law Rep. 8 Q. B. 112.)

4 Lucas v. Nichols, 7 Jones' Law (N. Car.) 32.

5 Anon. 60 N. Y. 262.

Brooker v. Coffin, 5 Johns. 188.

Adcock v. Marsh, 8 Ired. Law (N. Car.) 360.

Underhill v. Welton, 32 Vt. 40.

9 Guard v. Risk, 11 Ind. 156; contra, Pollard v. Lyon, 1 Otto (91 U. S. Rep.) 225. Charging a married woman with taking men into her bedroom, with averments showing it was for adulterous purposes, held actionable. (Waugh v. Waugh, 47 Ind. 580.)

10 Smith v. Minor, Coxe, 16; Miles v. Van Horn, 17 Ind. 245; contra, see Shepherd v. Wakeman, Sid. 79; Lev. 37. To say of a married woman she “is in a fix,” meaning, by local usage, she is pregnant, is not actionable, but actionable if said of an unmarried woman. (Acker v. McCullough, 50 Ind. 447; and see Wilson v. Barnett, 45 Ind. 163.)

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adding, "I can prove it by A. that she has been taking camphor and opium pills to produce an abortion; or, "She had two or three little ones to A.;" or, "Her child is A.'s, and A. was keeping her unmarried for his own purposes: 3 or, charging sexual intercourse with a dog; and where the defendant said of the plaintiff, that B. told him that on Sunday, at the camp-meeting, he scared the plaintiff and a man up from behind a log; that they broke and run, and that he (B.) got her (plaintiff's) parasol and handkerchief, held that these words were actionable; but saying of a woman, "She went down the river to the goose-house," without averring any special meaning to goose-house, was held not actionable."

173. The following words and phrases published orally of an individual as such, have been held actionable per se Bogus peddler, dealer in counterfeit money,

8

1 Miles v. Van Horn, 17 Ind. 245. "It's my soul's opinion that nothing else kept that girl in the house last winter but taking medicine to banish the young baker," innuendo that plaintiff had taken medicine to procure an abortion, held actionable. (Miller v. Houghton, 10 Up. Can. Q. B. R. 348.) And held actionable to say of a woman : "She procured or took medicines to kill the bastard child she was like to have, and she did kill or poison the bastard child she was like to have." (Widrig v. Oyer, 13 Johns. 124.) In slander, held that to charge a woman with causing or procuring an abortion upon herself, was not charging her with an indictable offense, under the statute of Iowa, unless it appeared that the child was quick, and that an action could not be maintained upon such a charge. (Hatfield v. Gano, 15 Iowa [7 With.] 177.) Charge of administering pills to drive off a child, equivalent to a charge of abortion, and actionable. (Filben v. Deutermann, 26 Wis. 518.)

Symonds v. Carter, 32 N. Hamp. 453, and ante, note 3, p. 249; Beardsley v. Bridgman, 17 Iowa, 290.

Richardson v. Roberts, 23 Ga. 215; Downing v. Wilson, 36 Ala. 717. She [plaintiff] is not chaste. I have kept her, and had criminal intercourse with her; or, "I have had sexual intercourse with her," held not actionable. (Berry v. Carter, 4 Stew. & Port. 387; contra, Adams v. Rankin, I Duval [Ky.] 58.) The words: "I have lain with her and pockified her," held actionable. (Neal v. Mallard, 2 Show. 312.)

Cleveland v. Detweiler, 18 Iowa, 299; and see ante, note, p. 184.

5 Proctor v. Owens, 18 Ind. 21.

* Dyer v. Morris, 4 Mis. 214. As to words of a woman with allegation of special damage, see § 198, post.