Sparrow v. . Maynard
53 N.C. 195
N.C.
1860
Check Treatment

The words complained of are elaborately set out in a declaration, and the substance of them is that on an indictment in a criminal court in Baltimore, in the State of Maryland, against one Thomas B. James for obtaining goods under false pretenses the plaintiff, who appeared as a *Page 150 witness for the said James, committed willful and corrupt perjury. The declaration, however, nowhere averred that by the laws of Maryland perjury was, or now is, punishable with an infamous punishment.

Exception was taken on the trial to this defect in the declaration, and was sustained by his Honor, who nonsuited the plaintiff, from which he appealed to this Court. The question presented for our consideration is whether the declaration sets out matter that, in law, constitutes slander; for if it does not, according to Brown v. Dula, 7 N.C. 574, the plaintiff was properly nonsuited in the court below.

Words actionable per se — that is, say, where no special damages is alleged — must impute an infamous offense. This is well settled bySkinner v. White, 18 N.C. 471, and Wall v. Hoskins, 27 N.C. 177. The infamy of the punishment seems to be the criterion by which the effect of words to degrade, socially, is judged, and by which their actionable character is determined.

If the words do not of themselves import such offense, they must be helped out by the averment of matter to give them their proper and the requisite signification.

Where words charge an act committed in another State, we cannot certainly know, without aid, that any offense against law is imputed. That depends upon the law of the State, of which we do not take judicial cognizance. It is necessary, therefore, to complete information as to the character of such words, that it should be averred, and, of course, proved what the law of the State is where the act is located.

The principle with regard to words of the class we are now considering is settled by Shipp v. McCraw, 7 N.C. 466, and Wall v. Hoskins, 27 N.C. 177. It is thus settled, not upon the ground that peril to the plaintiff must be shown as an ingredient in slander, for peril is not necessary, but because the law, where no special damage is alleged, has thought proper to annex social loss only to charges of that class. Contumely is said to be the gravamen of the action, and a legal inference of that can only be drawn from the imputation of felonious or other infamous offenses.

We do not wish to be understood as saying that the inference of social loss will be drawn in this State from every charge of an offense committed in another State which by the laws of that State is punished infamously. That will depend upon the light in which it is (197) regarded here. But upon that discussion we do not enter. *Page 151

We are of opinion, therefore, that in a declaration for slander in charging the plaintiff with perjury in the State of Maryland it must be averred that by the laws of Maryland perjury is an offense to which is annexed an infamous punishment. What it is necessary to aver, it is necessary, according to a well established principle of pleading, to prove. Allegations without proofs, and proofs without allegations, are equally unavailing.

PER CURIAM. Affirmed.

Cited: Harris v. Terry, 98 N.C. 134; Gudger v. Penland, 108 N.C. 599.