JOSEPH RINEHEARDT vs. FELTON W. POTTS. Where, in speaking of a trial before a magistrate, in which the plaintiff had been a witness, the defendant said that "he (the plaintiff) had sworn falsely," these words import that the plaintiff had committed perjury and are, in themselves, actionable. This Court cannot act upon affidavits offered in the Court below. It is the province of that Court exclusively to determine the facts, and the Supreme Court can only review so much of the judgment, as involves matters of law, strictly. Appeal from the Superior Court of Law of Macon County, at the Fall Term, 1844, his Honor Judge BATTLE presiding. This was an action on the case for slander. The words charged in the declaration and proved were, that the defendant, in speaking of the testimony given by the plaintiff, on the trial of a warrant before a magistrate against the defendant and two others, Davidson and Enloe, in which they were charged with a forcible trespass in taking a horse, said "he had sworn falsely." The defendant relied upon the plea of justification, and introduced testimony, tending to establish the truth of the charge, which was met by testimony on the part of the plaintiff, tending to prove, that the evidence, which he gave before the magistrate, was true. It appeared on the investigation of the charge against the defendants for the forcible trespass, that the defendant, Potts, was an officer and as such had levied an execution on a horse, as the property of one Wikle, and taken him into possession and delivered him to Davidson to keep; that he was secretly taken from Davidson's stable and was afterwards found in the stable of the plaintiff's father, with a chain locked round his neck and fastened to one of the logs of the stable; that Potts, Davidson and Enloe went there to get him, but were forbidden by the plaintiff's mother to take him; Rineheardt v. Potts. and that Davidson and Enloe, notwithstanding such prohibition, prized up the logs of the stable and took him out, the plaintiff and his mother both being present and objecting to it. The plaintiff swore, that Potts assisted in getting the horse from the stable, and in that it was that the defendant, Potts, said he committed the perjury. In his argument to the jury, the defendant's counsel contended, that neither Potts, Davidson nor Enloe had committed any forcible trespass, for that in law they were justified in taking the horse in the manner they did, but no point of law was raised to the Court, that the plaintiff could not have committed perjury on the trial of the warrant, and that therefore the words were not actionable. So far from it, the whole argument of the counsel was addressed to the jury, insisting that the evidence sustained the plea of justification. The jury returned a verdict for the plaintiff. The defendant moved to set it aside, upon an affidavit, the substance of which was, that, in making up their verdict, each juror put down what he thought should be the amount of damages, that these several sums were added up, and the aggregate was divided by twelve and the quotient determined upon as the verdict. The Court refused the motion. The defendant then moved for a new trial, because the Court had not told the jury, that the words were not actionable; but the Court held, that, as the objection had not been taken before, it could not be raised for the first time on a motion for a new trial. The motion was accordingly refused and judgment given for the plaintiff, from which the defendant appealed. N. W. Woodfin and Edney, for the plaintiff. DANIEL, J. In a colloquium relative to a trial before a magistrate of a State's warrant against the defendant and two others, when and where the defendant had been Rineheardt v. Potts. sworn and examined as a witness, the defendant said "That Rineheardt (the plaintiff) had sworn falsely." These words were, in law, to have that sense and meaning placed upon them by the Court and jury, that the bystanders affixed to them. The hearers of the said words spoken could not, from the subject matter of the conversation, understand the defendant to mean any thing else, than that the plaintiff had committed perjury, in his evidence on that trial. The words, spoken under the circumstances they were, were actionable of themselves, for they, in effect, charged the plaintiff with having committed wilful and corrupt perjury. Secondly: The defendant offered the affidavit of Dowdle, to shew to the Court, that the jury had misbehaved themselves in the manner of making up their verdict; and, on this affidavit, he moved that the verdict should be set aside and a new trial granted. The case sent up here only states, "that the Court refused the motion." We do not know upon what grounds the Judge refused the said motion; it may have been because he did not believe Dowdle. The defendant did not pray the Court to give the reason for rejecting the motion; and, as we cannot see that it was in fact over-ruled against law, we cannot say that there was any error in the judgment of the Judge upon this part of the case. We have often stated, that this Court cannot act upon affidavits offered in the Court below. It is the province of that Court exclusively to determine the facts, and we can only review so much of the judgment, as involves matters of law, strictly. We think the judgment must be affirmed. PER CURIAM. Judgment affirmed. THE COMMISSIONERS OF THE TOWN OF ASHEVILLE vs. JAMES B. MEANS. The commissioners of an incorporated town have no right to impose any taxes, but such as are expressly authorized by the Act of incorporation. A power to enact bye-laws, &c. for the good government of the town, of itself, confers no right to levy taxes. Appeal from the Superior Court of Law of Buncombe County, at the Special Term in June 1846, his Honor Judge BATTLE presiding. This was an action, commenced by a warrant before a single magistrate, to recover the sum of twenty-five dollars, which the Board of Commissioners for the town of Asheville had imposed, as a tax upon the defendant as a retailer of ardent spirits. It was admitted, that the defendant resided and did business, as a retailer, within the limits of the town; and the plaintiffs contended that they were authorized to impose and collect the tax sued for, by virtue of the Act of 1840, ch. 58, entitled "An Act to incorporate the town of Asheville in the County of Buncombe and to appoint Commissioners thereof." The defendant insisted, that the Act referred to did not confer the power upon the plaintiff's to impose the tax sued for, and of this opinion was the Court. Upon the intimation of this opinion, the plaintiffs submitted to a judgment of non-suit and appealed. N. W. Woodfin and Edney, for the plaintiffs. DANIEL, J. The Judge was of opinion, that the Act of Assembly mentioned in the case, did not confer the power on the commissioners, to lay the tax on the defendant, for the non-payment of which he was sued. The third section of the Act empowers the commissioners of Asheville Commissioners of Asheville v. Means. to lay a tax, annually, on the property and inhabitants of the said town, not exceeding ten cents on each hundred dollars valuation of real estate in the said town, and ten cents on every taxable poll, as they shall deem necessary for the repair of the streets and for the good of the said corporation. It seems that the Legislature has expressly conferred on the commissioners the power of taxing but two objects, to wit: the real estate, and polls within the limits of the town. The Legislature, designating two objects of taxation, intended, as it seems to us, to exclude from the taxing power of the commissioners every thing else. It would have been very imprudent legislation, to have permitted the commissioners to tax any and every thing in the town they might think fit, and that, without limit in the amount of the tax. The powers conferred on them, to pass bye-laws for the good government of the town, does not authorize them to make bye-laws to lay taxes on any other things than those expressly named by the Legislature. We think that the judgment must be affirmed. PER CURIAM. Judgment affirmed. |