The principal question presented upon the first twelve counts of the declaration, is, whether the trial in which the alledged false swearing took place, was a judicial proceeding. It appears, a certain matter of controversy was pending, before the Register of the land office, in DeKalb county, wherein James L. Lewis, by virtue of the pre-emption law of -Congress of the year 1838, was claimant of a quarter section of land, a moiety of which was claimed by one Scroggins adverse- • ly to Lewis. That the plaintiff was called upon as a witness by Lewis in support of his claim — that he was sworn to testify in behalf of Lewis, by a notary public, and that it was in reference to the testimony so given in, that the defendant accused him of swearing falsely.
The act of Congress of 22d June, 1838, “to grant pre-emption to settlers on the public lands,” gives to settlers on the public lands, under certain limitations not necessary to be noticed, « all the benefits and privileges of an act, entitled an act, to grant preemption rights to settlers on the public lands, approved May 9, 1830,” with a proviso, that when more than one person had settled on, and cultivated any one quarter section of land, each should have an equal share, or interest. [1 Land Laws, 574.]
This act does not provide for the settlement of controversies, where more than one person claimed a pre-emption upon' a quarter section of land, but by reference to the act of 1830, which is in effect embodied in the act of 1838, it appears by the third section, that “ the proof of settlement and improvement, should be made to the Register and Receiver, of the land district in which such lands may lie, agreeably to the rules to be prescribed by the Commissioner of the General Land Office, for that purpose.”
It is very clear, that the Register and Receiver were acting in a judicial capacity, in thus ascertaining the facts upon which a pre-emption was to issue, and so it has universally been considered by the General Government. Such was the opinion of Mr. Butler, the Attorney General, as expressed upon this law, in answer to inquiries upon this subject. He says, “ In weighing the evidence, and deciding on its sufficiency, these officers act in a judicial capacity,” and he proceeds to say, no other officer of the *514government can reverse their decision. [2 Land Laws, 84, No. 57.] To the same effect is the communication of the Commissioner to the Register and Receiver at Tallahassee. [Id. 729, No. 682.]
This being then a special judicial tribunal, created by Congress, it can only act in the mode, and upon the subjects pointed out in the law. The power being delegated to the Receiver and Register jointly, cannot be exercised by one of them separately, and such separate action would be as destitute of legal validity, as would be the joint action of both, upon a subject not within their cognizance. A reference has been made to the act of 24th May, 1824, for the correction of errors in entries at the land office, 1 Land Laws, 378, by the second section of which power was given to either the Receiver, or Register, to administer the oath to the party, who desired to change his entry, which was to be transmitted to the General Land Office. This act is upon an entirely different subject, in no manner connected with the present, as the Receiver, or Register, receiving the affidavit had no judicial power conferred on them beyond the power of administering the oath, and can have no influence whatever upon the present question.
It results from this view, that the proceeding before the Register alone, was extrajudicial — that he did not constitute the Court, appointed by Congress for the ascertainment of the disputed facts, and thatconsequently,theoath administered, not being in the course of a judicial proceeding, perjury cannot be assigned upon it, or predicated of the testimony, however wrong in a moral point of view it might have been, to have stated a falsehood upon such examination.
These considerations relieve us from the necessity'of inquiring whether the oath, though administered by a notary public, who as such had no power to administer it, might not be considered as the act of the Court, and administered by its direction. It also relieves us from the consideration of the numerous counts in detail, in many of which it might perhaps be doubted, whether the words as charged are actionable.
The two last counts of the declaration which charge the speaking of words actionable in themselves, stand upon a different footing. The accusation of perjury, implies within itself, every thing necessary to constitute the offence, and if the accusation had re*515ference to testimony delivered extra judicially, the onus lies on the defendant of showing it. [Jackson v. Mann, 2 Caine’s Rep. 91; Wood v. Clark, 2 John. Rep. 10.] And therefore in such cases no colloquium, showing that the charge related to material testimony in a judicial proceeding is necessary.
It is however urged, that we must understand the two last eounts as referring to, and adopting all the first count, except the words spoken, and that therefore the declaration itself shows, that perjury in its legal sense, was not charged. This is doubtless true, if the declaration could be so interpreted, but we do not 'understand the reference in the two last counts, to the preceding, to be any thing more, than an adoption of the formal part of the first count, which for the sake of brevity, is thus silently incorporated into these, and considered as if again repeated. So considering these counts, they are good, and the demurrers to them were improperly sustained.
There is no special damage alledged, as supposed, in these eounts of the declaration. The general charge, that in consequence of the words, “ divers of his neighbors have refused to have any transaction, acquaintance, or discourse with him,” &c. would not have authorized proof of special damage, and amounts to no more than a general allegation of damage, sustained by the speaking of the words.
Let the judgment be reversed and the cause remanded.