Priour v. Colbold, 1 N.C. 219, 1 Mart. 219 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 219, 1 Mart. 219

*Priour vs. Colbold, vel Frier vs. Gabolt.

Mich. 3 Car.

CASE for these words. If Robert Prior would justify his answer, which he made to a bill preferred by Tinson against Tinson. I would prove him perjured upon his oath. The answer had been disallowed for insufficiency; all points in the bill not being answered.

Bulstrod.

The action does not lie; for he is not directly charged with perjury. T. 17 Jac. B. R. Sparkman’s case. He is a thief, or I. S. is perjured; held not actionable; the words not being directly affirmative. So 18 Jac. B. R. Margaret vs. Gibb.

Goldsmith, e contra.

The words import a scandal, as in Hext’s case, 4 Co. 15. If I find I. S. I wott in two days to arrest Hext of felony; the action lies, although the words be conditional.

Jones, J.

It is so, for they carry a scandal with them, and there is a certainty of person. Aliter, if the person was uncertain. As one of you is a thief no action lies. In Norfolk they found out a trick to scandalize men, by saying: I dreamed, &c. that you stole a horse, which is a devise to avoid an action. By this means, any one may abuse another with impunity. The disallowance of the answer is nothing. For it is good for the residue.

Whitlock, J.

I doubt whether an action lies in this case, for the words are contradictory. In as much that if he justifies his answer, there is no scandal.

Hyde, C. J.

I am clearly of the opinion of my brother Jones. To justify is to affirm.

Afterwards a doubt arose; as the plaintiff had not averred that he had justified his answer after the words spoken. But he had judgment. 1 Roll. 78. 2 Cr. 350.