I concur in the opinion delivered.
Livingston, J.I am unfortunate enough to differ from the court.
If the words used, be not in themselves actionable, the judgment must, in my opinion, be arrested, notwithstanding the plea of justification, on which the plaintiff so much relies, as evidence of the defendant’s intention or meaning to charge him with perjury. It is the import of the words themselves, and not the defendant’s intention, which is the criterion of their being actionable or not. This meaning cannot be assigned to them merely by an innuendo., or depend on a secret intention, but must be collected either from the criminal sense in which the expressions are usually understood ; or, from the colloquium which led to them, it must appear they could have no other meaning. Let a man’s intention be ever so mischievous or malicious, if his reproaches, however strong, impute no crime, nor bring the party of whom they are uttered into danger of legal punishment, he can be no more responsible than one who intends, but does not perpetrate a crime. Nor will any subsequent explanation by him, confer a right of action for words not actionable at the time they were spoken, or in the manner in which they were used. This explanation itself may be the ground of a suit, as being a new slander, but it can never make that actionable which was not so before. Were one to declare against another for calling him a fool, would the plaintiff be permitted to shew that the defendant intended to call him a thief? Nay, would the defendant’s own confession in open court to that effect support a declaration of this kind ? The action is brought for the injury which the words are calculated and supposed to have produced ; not for the intention from which they proceed. This is precisely the case here. The defendant had «charged the plaintiff with swearing to a lie. These words, it is admitted, are not actionable, when not applied to swearing in a judicial proceeding, but are laid generally, without any colloquium from which it can appear that they were used with reference to some proceeding, wherein the plaintiff had been examined as a witness. It must be seen, by apt words in the declaration, that the defendant referred to such proceeding, or, whatever his intention may have been, those who heard them could only consider the plaintiff as a liar, which, however discreditable or disgraceful, would not have given a right of action, notwithstanding the case in 1 Buls. 40. Reasonable as the rule there laid down may be *79that words, “ tending to the infamy, discredit, or disgrace of the H party,” are actionable ; the law is certainly otherwise. They must contain an allegation of “ some crime liable to punishment, “ some capital offence or other infamous crime, misdemeanor,” &c. As those then, who were present when this supposed slander was propagated, must have formed their opinion from what fell from the defendant; they could not suppose he meant to charge the plaintiff with perjury, unless he had made use of other expressions, than those which are set forth. If then there were no injury, or cause of action at the time of filing the declaration, how is it possible that the plea, which perhaps will never be seen or heard of by those to whom the words were addressed, can confer one, and that too, by relating so far back. I am apprized however that the plaintiff is not altogether without authority on this point. It Is that of Drake v. Corderoy. The defendant had there said of the plaintiff that he was forsworn, without mentioning in what court or on what occasion. In his plea of justification, he stated in what court he took the oath, and that it was false. The court there say that the uncertainty of the declaration is cleared up by the de? “ fendant’s expressing in hjs plea, that he intended to speak of the is oath he had taken in that particular court.”
This case proceeds on a supposition that the intention with which words are spoken is material. It may be so as it respects the measure of damages, but not as' it regards the right to recover. No malice or evil intention can render actionable, words in themselves innocent. I have examined every case cited in the margin of this one, in support of the decision, (and they are numerous,) but not one of them is in any respect like it. They are cases on contracts where one party or the other, in the course of pleading, has admitted some fact, which was material, and which the court would not afterward permit him to contest or deny ; but here, the fact admitted by the justification is immaterial, because slander can never consist in what a man intends to publish, but in what he does actually declare ; and so it was determined in Badcock v. Atkins, which is a very strong decision in favor of the defendant, and at open war with the one just examined. It was doubtful from the declaration, whether the words spoken applied to the plaintiff. This fact however was admitted by the plea, but the court say “ the declaration was not " good, and although the defendant by his plea confesses that he intended them of the plaintiff, yet that shall not help the " *80declaration which is insufficient.” This case it is true is many years older than Drake v. Corderoy. It is not however on this account that I give it a preference) especially as it may be con-. s*dered as overruled by the latter judgment, but because it appears to me more reasonable, and more agreeable to common sense than the other, for the more we reflect on the subject, the less will we be able to conceive how any one can be af. fected or injured in his reputation, by slander which consists in mere intention, without any overt expressions to carry such intent into effect. In the case of Oldham, v. Peake, there was a colloquium concerning the death of one Dolly, and the manner of the defendant’s charging the plaintiff with it, was equivalent to a charge of murder.
But if the plea of justification, be not a sufficient cause for not arresting the judgment, it is said the words are actionable, inasmuch as the defendant alleged that the plaintiff stood indicted for what he then charged him with. Here we must again recur to the words, and if they do not contain an imputation of a crime or offence, the allegation of an existing indictment will not alter the case. It is very possible, that a person, from ignorance in a grand jury or other cause, may be indicted for a matter not crimina], but unless what is charged, be so, it is no slander. Were one to say to another, are you a mahometan or a jacobin, for which you stand indicted, would these words, on account of such addition, be actionable ? Certainly not. Now as no man can legally be indicted or punished for being a liar, his being called so, and being charged with being indicted, as such, can give him no right of action any more than his being charged with being indicted for any other immorality not punishable by law. I am not for extending the action for words,but for confining it as much as possible within its present limits. Abusive expressions which expose a man to no punishment are beneath the dignity of the law, and unworthy of legal cognizance. A man of character cannot be affected by them, and he who has none, should not have his angry passions gratified by an appeal to courts of justice, whose time may be much more Usefully employed in attending to other matters. The judgment in my opinion must be arrested. I concur however in the opinion of Mr. Justice Spencer, as to the pleading.
Thompson, J. Gave no opinion, not having heard the argument. Tompkins, J. Had been concerned.