A charged B with perjury in swearing before a single justice to the following affidavit, viz.: "A has a certain cow in his possession that belongs to him, the said B; and the description is red sides, with some spots and unmarked": Held, that the words were not actionable in themselves, as the declaration did not aver nor the proof show that the oath was taken in a proceeding in which an oath could be judicially administered.
RUFFIN, C. J.
The words are clearly not actionable in themselves, as they do not import a charge of perjury. To make them amount to such a charge it is necessary the declaration should state and the proof show a proceeding in which an oath could be judicially administered, so as to constitute false swearing therein a perjury. Brown v. Dula, 7 N.C. 574. To bring this act within the rule, the counsel for the plaintiff referred to the act concerning Strays, Rev. St., ch. 112, by section 4 of which the owner of a beast which has been taken up and entered as an estray may, within twelve months after the appraisement, prove his property before the ranger on his own oath, so as to entitle him to recover the beast from the person who took it up. But that does not help the plaintiff, as he gave no evidence that the cow was an estray or had been taken up as such; so that it did not at all appear that the affidavit was given for the purpose or in a proceeding of the kind provided for in the act. As far as appears, the oath was not at all required nor authorized by the law, but was merely voluntary; and, therefore, in taking it the plaintiff could not be guilty of perjury, and, consequently, in saying that the oath was false the defendant did not impute to the plaintiff the crime of perjury.
PER CURIAM. Judgment affirmed.
Cited: Mebane v. Sellars, 48 N.C. 201.
(94)