Sanford v. Gaddis. good reason why a party should not be permitted to make his demurrer several to each count, without writing out as many formal separate demurrers as there are counts in the declaration. The objections taken to the first count are, that it does not show that the justice of the peace had jurisdiction of the case in which the plaintiff was sworn as a witness, or that he was duly sworn. That count contains this averment, in reference to the jurisdiction of the justice: "Of which said action the said justice, then and there, had jurisdiction ;" and this, we think, was sufficient, without setting forth the facts which gave the jurisdiction. The gist of the action is the speaking of the slanderous words; not the proceedings before the justice of the peace, which are only referred to incidentally, for the purpose of showing the application and meaning of the words used. In such a case, it is not necessary to set forth the facts which give the justice jurisdiction with the same particularity as in cases founded directly upon the judgment, or some other proceeding of the justice. It was wholly unnecessary to aver, that the justice had authority to administer the oath. This necessarily follows, from his authority to try the case. The jurisdiction of the justice to try the cause being once shown, the court will intend that he had the power to proceed in the ordinary mode to a final disposition of the case without a special averment, in reference to each step in its progress, that he had authority to take it. It has been objected, that the first count shows that the plaintiff was a party, and, therefore, an incompetent witness in the case wherein he gave his evidence; or, at least, that he was a voluntary witness; and, in either event, it is insisted that he would not be guilty of perjury in swearing falsely. Consequently, that the charge set forth in that count does not amount to an imputation of that crime. We are not prepared to admit, that an incompetent or interested witness may not be guilty of perjury in testifying falsely. The authorities to which reference has been made would seem to establish the converse of this proposition as the law, and that an erroneous opinion of a judge or justice as to the competency Sanford v. Gaddis. of a witness, would not give him license, if improperly admitted, to disregard the truth and set at defiance both the laws of God and man. But, whether this be so or not, it does not follow because a person is a party to an action before a justice of the peace, that he is therefore an incompetent witness. So far from it, the statute expressly authorizes either party to prove his claim. or set-off, if he has no other witness, by his own or the oath of the adverse party, whenever he will make oath that he has no other means of establishing it. Rev. St. ch. 59, § 39. It appears that the plaintiff, who was defendant in the action. before the justice, was sworn as a witness by consent of the present defendant and then plaintiff, who waived the making of the preliminary oath. A party is not bound to avail himself of a privilege which the law gives him, but may always waive it and admit a fact, when he alone is to be affected by the admission, and there is nothing in the policy of the law to forbid it. Had the preliminary oath been made, and the defendant declined to testify, the plaintiff's right to be sworn would have been unquestionable. It is not, therefore, against the policy of the law to allow a party to become a witness under certain circumstances; but the existence of those circumstances is a matter in which the parties to be affected thereby are alone interested, and can consequently admit. The evidence of a party before a justice of the peace is always voluntary. The privilege of becoming a witness is first extended to the adverse party, and if he declines to be sworn, the party seeking the evidence is then permitted to testify; but neither is compelled to give evidence; and yet it would hardly be insisted that a party, after consenting to testify under such circumstances, could not be convicted of perjury for swearing falsely. The fifth and seventh counts each charge the defendant with having spoke of the plaintiff, among other words, the following: "He perjured himself." These words of themselves impute to the plaintiff the commission of a felony, and are actionable per se without colloquium or inducement. But the plaintiff has thought proper to limit and restrain the obvious meaning of the words by an innuendo alleging that the defendant meant thereby, that the plaintiff had sworn falsely. Every false swearing, even Sanford v. Gaddis. in a judicial proceeding, does not constitute perjury; and it is clear from the innuendo that the plaintiff did not design, in these two counts, to charge upon the defendant, in the speaking of the above words, an intention to impute to him the crime of perjury. These counts are, however, good under the statute, which declares, "It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having sworn falsely, or for using, uttering, or publishing words of, to, or concerning any person, which in their common acceptation amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding, or not." Rev. St. ch. 101, § 2. In addition to the words before quoted, the fifth and seventh counts each contain words which, in their common acceptation, amount to a charge of having sworn falsely, and each has an inducement showing that the words were spoken in a conversation concerning a judicial proceeding. If not spoken in reference to such a proceeding, they would still be actionable, and they are none the less so for having been spoken in that connection. It is not necessary that the words spoken in a conversation concerning a judicial proceeding should have been uttered under such circumstances as to impute the crime of perjury; if it were, the statute would present the strange anomaly of making actionable words charging a person generally with having sworn falsely, while the same charge, if made against a person in conversation concerning his evidence in a judicial proceeding, would be no slander, unless it turned out upon investigation, that the false swearing was upon a point material to the issue. Such a construction would be in the very teeth of the statute, which makes it actionable to charge a person with swearing falsely, whether the words be spoken in a conversation concerning "a judicial proceeding, or not." It is immaterial whether the counts under consideration show that the plaintiff was a competent witness and duly sworn, or not. They clearly do show that the defendant charged the plaintiff with having sworn falsely in a judicial proceeding, and this is sufficient under the statute. It has been suggested, that in a plea of justification to these counts the defendant will be Sanford v. Gaddis. compelled to show that the plaintiff swore falsely under such circumstances as to make him guilty of perjury. Such is not the case, for the reason that the charge, as alleged in these counts, does not impute to the plaintiff that crime. The defence must be as extensive as the slander, and need be no broader. If the averment in a declaration be general, charging the defendant with having said of the plaintiff that he had sworn falsely, without reference to any judicial or other proceeding in which an oath could have been lawfully administered, a plea of justification pointing the plaintiff to the time, place, and occasion of his false swearing, and alleging the truth of the words spoken, would be good. If the charge be of having sworn falsely in a judicial proceeding, without the necessary averments to make the slander amount to an imputation of perjury, then a plea of justification that the plaintiff did swear falsely in the particular proceeding would be sufficient; but if the declaration be so framed as to show that the defendant, by the slanderous words, intended to impute perjury to the plaintiff in a particular case, the defendant can only justify having made such a charge by showing that the plaintiff committed perjury in the case alluded to. The justification must in all cases be coextensive with the slander, and need not go farther. It has been objected, that the fifth and seventh counts do not profess to have been framed under the statute, and that they cannot, therefore, be aided by it. The act declaring what words shall be actionable is a public law, of which the courts are bound to take notice without a special reference thereto. It is not like a statute imposing a penalty, in declaring for which it is necessary to allege that the act complained of was done contrary to the form of the statute, but may be likened to an action of replevin in a case not authorized at the common law; and who ever supposed it necessary to aver in a declaration in such a case, that the injury complained of was contrary to the form of the statute in such case made and provided? The necessity for such an averment in a declaration is confined to actions upon penal statutes, and cannot with propriety be extended to a case like the present. Reed v. Northfield, 13 Pick. 99. We are of opinion that the first count to which the demur Martin v. The People. rer was sustained is good at the common law, and that the fifth and seventh are good under the statute. The judgment is reversed, and the cause remanded. Judgment reversed. JOHN MARTIN, Plaintiff in Error, v. THE PEOPLE OF THE STATE ERROR TO BROWN. 101a 2533 13 341 Instructions not excepted to cannot be assigned for error. Exception should be taken 108a 596 to the decisions of the court in giving or refusing instructions at the time. An instruction must be understood, in reference to the state of case before the court, when it is given. When, in giving instructions, the existence of certain facts is assumed, about which the parties are agreed, neither party can afterwards make the assumption ground of objection. The statute authorizing the refusal to grant new trials to be assigned for error, has no application to criminal cases. On the trial of a party indicted for obstructing a highway, if he introduces proof to show that the highway in question was not a legal one, it would not be error to instruct the jury, that the supervisor, having ordered the defendant to open the road and remove the obstruction, was competent evidence, tending to prove that the highway had not been abandoned by the public. JOHN MARTIN was indicted at August term, 1850, of the Brown Circuit Court, for obstructing a highway leading from Mount Sterling in Brown county to Meredosia in the county of Morgan. At the trial of the cause at April term, 1851, Martin was found guilty. MINSHALL, Judge, presided at the trial of the The points of discussion raised in the Supreme Court, are fully stated in the opinion of the court. cause. WARREN and EDWARDS, for plaintiff in error. R. S. BLACKWELL, for the people. TRUMBULL, J. This record presents a single question for decision, which is, the correctness of the third instruction given to the |