Mr. Chief Justice WalKBR
delivered the opinion of the court.
Sharp, the defendant in error, brought his action of slander in the Cross circuit court. The defendant in the court below, the plaintiff in error, appeared and filed a plea of not guilty, and a special plea of justification; upon which issues were taken and the cause submitted tó a jury, who having heard the evidence and instructions of the court rendered a verdict in favor of the plaintiff below, upon the 3d count in the declaration, and for the defendant upon the other counts, upon which final judgment was rendered in favor of the plaintiff for the sum of $1,500, the damages assessed, by the jury.
The defendant filed his motion in arrest of judgment, which was by the court .overruled, and has brought the case into this court by writ of error.
Two distinct grounds of error are presented:
First- — That the circuit court erred in the instructions given to the jury.
Second — That the third count, upon which the j udgment was rendered, is fatally defective.
The most important question to be determined is as to the sufficiency of the 3d count in the declaration. The plaintiff was charged with having “sworn a lie.” These words are not actionable per se, and do not in themselves import a charge of perjury; and when such is the case, it is necessary to state in the introductory part of the declaration the special circumstances in reference to which the slanderous words were spoken, and in connection with which they impute the crime of perjury. 1 Starkie on Slander, page 391. This the pleader attempted to do. in the first count of the declaration in this case, but whether sufficiently or not, from the view which we take of the 3d count, it is not necessary for us to determine.
In the 3d count no attempt was made to set out the circumstances in reference to which the slanderous words were spoken ; nor indeed is it usual to do so. Mr. Chitty says : “In framing a second or subsequent count for the same cause of action, unnecessary repetition of the same matter should be avoided, and that it is sufficient to refer concisely to the inducement in the first count. But unless the second count expressly refers to the first count, no defect therein will be aided by the precedent count. 1 Ohit. PI., 413. .
It is a rule that each count must be perfect in itself, and set forth a distinct cause oí action. A distinct cause of action for such slanderous words as are in this count averred, consists not alone in the words spoken, but it is also necessary to connect them with some judicial or other legal proceeding, in which a valid oath was administered to the plaintiff — an oath which, if false, would subject him to punishment for perjury. By referring in the second count to the inducement set forth in the first, it is considered as fully as part of that count as if incorporated in it. But unless so referred to, it becomes no part of the second count, and in an action, such as this, the count is fatally defective. The brief sentence found in the form books, and used for this purpose, is wanting in the 3d count. It is not averred that the words spoken were “of and concerning said trial,” alluding to the trial set forth fully in the first count. The only reference, any where in the 3d count to a trial or a judicial proceeding, is an innuendo found in the following terms and connection: “He (meaning the plaintiff) swore a lie in that case (meaning the said trial at law, and meaning that the said plaintiff had been and was guilty of perjury in giving false evidence upon his oath in said trial at law, before said justice of the peace.”) This is no averment that there was a trial had before a justice of the peace, or that the plaintiff had been sworn as a witness in such trial. It is not the office of an innuendo to supply the place of an aver-ment, to state the existence of a fact, but simply explanatory of an averment previously made. Mr. Ohitty says: “It serves to point out where there is precedent matter, but never for a new charge.” 1 Ohitty PI., page 407. The 3d count is, therefore, fatally defective in this respect. It .simply charges the defendant with having spoken words which are not in themselves actionable.
Fully recognizing the rule that, after a trial and verdict for 'the plaintiff, every intendment will be made in favor,of the declaration upon the state of facts pleaded, we feel confident that the defect in this instance is not embraced within such rule, but is of that class of defects which affect the cause of action itself, not the manner of stating the cause of action. - Lord MaNSeield says: “That a verdict cures a title defectively stated, but not a defective-title.” Chancellor KeNT, in 17 John. P., 448," says: “If any thing essential to the plaintiff’s action be not set forth, though the verdict be for him, he cannot have judgment, because if the essential parts of the declaration be not put in issue, the verdict can have no relation to it.”
The presumptions in favor of the declaration must arise upon that which is stated in it, as, for instance, in the case before us, it was necessary to aver that in some legal proceeding the plaintiff had been sworn and given evidence. This was a necessary averment to fix liability upon the defendant. No presumptions could be indulged in support of the judgment, that there was proof before the jury that such legal proceedings were had. But if they had been stated, but the manner of swearing the plaintiff, who was called as a witness in the case, had been omitted, after verdict, the presumption that sufficient proof upon that point had been given, might well be indulged.
The question as to what defects in pleading are cured, and what are not cured by verdict, was considered at great length in the case of Sevier vs. Holliday, 2 Ark. Rep., and fully sustains. the conclusion at which we have arrived in this case, which is, that the defect in the 3d count is not such as is cured by verdict;
It is insisted by counsel that, admitting the 3d count to be defective, such defect is cured by the defendant’s special plea of justification, in which he has set forth fully all the material facts omitted in the 3d count, and that the defects being thus supplied, the verdict and j udgment should not be set aside. '
As this question has not, heretofore, been presented tor our consideration, we have given it a careful consideration. The American decisions, which hold that the defects in the declaration are aided after verdict by the averment in the special plea, seem to have been made upon the authority of an early English decision, reported: Drake vs. Corderoy, Croke Cas. 288. In that case, the slanderous words charged were: “He (innuendo, plaintiff,) is foresworn,” without referring to any judicial proceeding, or oath administered. The defendant justified, showing the oath which he made in the open sessions, and that it was false, upon which justification issue was taken, which was found and judgment for plaintiff.
“It was assigned for error that the words were not actionable, “ because he doth not say in the declaration that he was foresworn “ by his oath taken in any court. And to say, generally, that “ the plaintiff is foresworn, an action does not lie, but to say he is “ perjured an action lies.
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Mr. Chief Justice WalKBR
delivered the opinion of the court.
Sharp, the defendant in error, brought his action of slander in the Cross circuit court. The defendant in the court below, the plaintiff in error, appeared and filed a plea of not guilty, and a special plea of justification; upon which issues were taken and the cause submitted tó a jury, who having heard the evidence and instructions of the court rendered a verdict in favor of the plaintiff below, upon the 3d count in the declaration, and for the defendant upon the other counts, upon which final judgment was rendered in favor of the plaintiff for the sum of $1,500, the damages assessed, by the jury.
The defendant filed his motion in arrest of judgment, which was by the court .overruled, and has brought the case into this court by writ of error.
Two distinct grounds of error are presented:
First- — That the circuit court erred in the instructions given to the jury.
Second — That the third count, upon which the j udgment was rendered, is fatally defective.
The most important question to be determined is as to the sufficiency of the 3d count in the declaration. The plaintiff was charged with having “sworn a lie.” These words are not actionable per se, and do not in themselves import a charge of perjury; and when such is the case, it is necessary to state in the introductory part of the declaration the special circumstances in reference to which the slanderous words were spoken, and in connection with which they impute the crime of perjury. 1 Starkie on Slander, page 391. This the pleader attempted to do. in the first count of the declaration in this case, but whether sufficiently or not, from the view which we take of the 3d count, it is not necessary for us to determine.
In the 3d count no attempt was made to set out the circumstances in reference to which the slanderous words were spoken ; nor indeed is it usual to do so. Mr. Chitty says : “In framing a second or subsequent count for the same cause of action, unnecessary repetition of the same matter should be avoided, and that it is sufficient to refer concisely to the inducement in the first count. But unless the second count expressly refers to the first count, no defect therein will be aided by the precedent count. 1 Ohit. PI., 413. .
It is a rule that each count must be perfect in itself, and set forth a distinct cause oí action. A distinct cause of action for such slanderous words as are in this count averred, consists not alone in the words spoken, but it is also necessary to connect them with some judicial or other legal proceeding, in which a valid oath was administered to the plaintiff — an oath which, if false, would subject him to punishment for perjury. By referring in the second count to the inducement set forth in the first, it is considered as fully as part of that count as if incorporated in it. But unless so referred to, it becomes no part of the second count, and in an action, such as this, the count is fatally defective. The brief sentence found in the form books, and used for this purpose, is wanting in the 3d count. It is not averred that the words spoken were “of and concerning said trial,” alluding to the trial set forth fully in the first count. The only reference, any where in the 3d count to a trial or a judicial proceeding, is an innuendo found in the following terms and connection: “He (meaning the plaintiff) swore a lie in that case (meaning the said trial at law, and meaning that the said plaintiff had been and was guilty of perjury in giving false evidence upon his oath in said trial at law, before said justice of the peace.”) This is no averment that there was a trial had before a justice of the peace, or that the plaintiff had been sworn as a witness in such trial. It is not the office of an innuendo to supply the place of an aver-ment, to state the existence of a fact, but simply explanatory of an averment previously made. Mr. Ohitty says: “It serves to point out where there is precedent matter, but never for a new charge.” 1 Ohitty PI., page 407. The 3d count is, therefore, fatally defective in this respect. It .simply charges the defendant with having spoken words which are not in themselves actionable.
Fully recognizing the rule that, after a trial and verdict for 'the plaintiff, every intendment will be made in favor,of the declaration upon the state of facts pleaded, we feel confident that the defect in this instance is not embraced within such rule, but is of that class of defects which affect the cause of action itself, not the manner of stating the cause of action. - Lord MaNSeield says: “That a verdict cures a title defectively stated, but not a defective-title.” Chancellor KeNT, in 17 John. P., 448," says: “If any thing essential to the plaintiff’s action be not set forth, though the verdict be for him, he cannot have judgment, because if the essential parts of the declaration be not put in issue, the verdict can have no relation to it.”
The presumptions in favor of the declaration must arise upon that which is stated in it, as, for instance, in the case before us, it was necessary to aver that in some legal proceeding the plaintiff had been sworn and given evidence. This was a necessary averment to fix liability upon the defendant. No presumptions could be indulged in support of the judgment, that there was proof before the jury that such legal proceedings were had. But if they had been stated, but the manner of swearing the plaintiff, who was called as a witness in the case, had been omitted, after verdict, the presumption that sufficient proof upon that point had been given, might well be indulged.
The question as to what defects in pleading are cured, and what are not cured by verdict, was considered at great length in the case of Sevier vs. Holliday, 2 Ark. Rep., and fully sustains. the conclusion at which we have arrived in this case, which is, that the defect in the 3d count is not such as is cured by verdict;
It is insisted by counsel that, admitting the 3d count to be defective, such defect is cured by the defendant’s special plea of justification, in which he has set forth fully all the material facts omitted in the 3d count, and that the defects being thus supplied, the verdict and j udgment should not be set aside. '
As this question has not, heretofore, been presented tor our consideration, we have given it a careful consideration. The American decisions, which hold that the defects in the declaration are aided after verdict by the averment in the special plea, seem to have been made upon the authority of an early English decision, reported: Drake vs. Corderoy, Croke Cas. 288. In that case, the slanderous words charged were: “He (innuendo, plaintiff,) is foresworn,” without referring to any judicial proceeding, or oath administered. The defendant justified, showing the oath which he made in the open sessions, and that it was false, upon which justification issue was taken, which was found and judgment for plaintiff.
“It was assigned for error that the words were not actionable, “ because he doth not say in the declaration that he was foresworn “ by his oath taken in any court. And to say, generally, that “ the plaintiff is foresworn, an action does not lie, but to say he is “ perjured an action lies.
“ But all the court held that if there was any doubt, it was “ upon the declaration, which was uncertain because he doth not “ show that the words included a false oath in a court of record. “ Tet when the defendant by his plea confesseth that he spoke “ those words by reason of his oath taken at the sessions,- that- “ clears the question whereof he intended to speak. "Wherefore “ the judgment was affirmed.”
In the case of Vaughan vs. Havens, 8 Johns., R. 109, Spenceb J., who delivered the opinion of the court, referred to Drake vs. Corderoy, and approved the decision in that case. In Wood vs. Scott, 13 Verm. R., 42, Redeield J., upon the authority of the above cases, said: “But when a case, where on exceptions the entire case is before the court, and it is our duty to look into the record, we there find that the defendant pleaded in bar the truth of the words spoken, and therein defined the sense in which he used them. He says, that the plaintiff, in his testimony, on the occasion set forth in the declaration, had knowingly and willfully sworn false, thereby committing willful and corruptjperjury, and therefore he spoke the words, as well he might,” and held the defect in the declaration cured by the plea.
It may be well to remark that in the case of Wood vs. Scott, the omission in the declaration held to be cured by the plea, was not for want of an averment of the circumstances under which the alleged false swearing took place, but for the want of a proper innuendo. But we apprehend that it is not the less an authority in point, upon principle ; and particularly as Drake vs. Corderoy and Vaughan vs. Havens are cited as authority.
In the case of Smith vs. The Eastern Rail Road, 35 N. Hamp. Rep., 356, it was held that “ if the facts stated in the plea be such as necessarily to imply, and the issue joined be such as necessarily to require on the trial, proof of the facts imperfectly stated, or omitted in the declaration, and without which it is not to be presumed that the jury would have found the verdict rendered, the judgment will not be arrested on account of such omission.”
In the case now under consideration, the special plea of the defendant in the court below, contains all of the facts in reference to which the words were spoken, and which should have been averred in the declaration, and in reference to which the colloquium was had. They were all put in issue by the replication to the plea, and it became necessary and proper to introduce evidence under such issue. We have not the evidence before us, and therefore cannot say what the proof was ; but in the absence of it, we must presume, in favor of the verdict, that such evidence was before the jury, and when taken in connection with the other evidence in the case, sustained the verdict rendered.
We must therefore hold that, notwithstanding the declaration was so defective as to present no issue under which competent evidence might have been introduced, yet inasmuch as the defendant, by his special plea of justification, supplied such omission, in so far that under it competent evidence could legally have been introduced, the verdict of the jury may have been, and as we must presume in favor of the verdict, was found upon sufficient evidence to warrant the verdict and the judgment thereon.
The remaining ground of objection to the verdict and judgment is, that the circuit court erred in giving instructions to the j ury by which they were misled in making their verdict.
The counsel for the plaintiff in error insists that the instructions were calculated to mislead the jury under any conceivable state of evidence, and that when such is the case, even when the evidence is not before us, such erroneous instructions should be looked info and corrected.
We have carefully looked into the instructions, and when taken all together, they are not so palpably defective, that in the absence of the evidence given to the jury, we could undertake to say that they were erroneous. In a case like the present every presumption is to be indulged in favor of the decision of the circuit court, who heard all of the evidence, and whose duty it was to instruct the jury.
In view of the whole case as presented to us, we are of opinion that the circuit did not err in overruling the defendant’s motion in arrest of judgment.
Judgment affirmed.