Opinion
(1793.)
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 v. 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:
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, etc., that you stole a horse, which is a devise to avoid an action. By this means, anyone may abuse another with impunity. The disallowance of the answer is nothing. For it is good for the residue.
I doubt whether an action lies in this case, for the words are contradictory. Inasmuch that if he justifies his answer, there is no scandal.
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.