BROWN v. KINCAID.
Slander — inducement—arbitration—minutes of the court — oath to arbitrators— arrest of judgment.
The statute arbitration does not take away the common law right of parties to arbitrate the controversies.
The omission to state on the minutes of the court where the submission is, that an award was returned, cannot be objected to in an action of slander, for a charge of perjury before the arbitrators.
The fact of arbitrators being sworn may be proven by parol.
Inducement, or the matter necessary to make words actionable, which are not so of themselves, must be set forth in the declaration, and the words complained of connected with it.
Slander. The declaration alleged, that a suit had been pending between Kincaid, the plaintiff, and Brown, the defendant, before a justice, which was submitted to the arbitrament of J. K. and J. E. That on the trial of said cause, before the arbitrators, the plaintiff was sworn and examined as a witness, as to his book account, of less than eighteen months’ standing, which he claimed to offset, and that the defendant, in speaking of the trial, the plaintiff, and his evidence, said, “ You swore a damned lie, and I can prove it.”
Plea — not guilty, with notice that in the account exhibited, there were items for three days' writing, cutting wood, and hauling cut up corn; and that the plaintiff swore all of these items were just and true, when he knew they were untrue and false.
On trial, the plaintiff, after he had proven by the justice that he was a justice, and acted as such, offered a transcript from his docket to prove the proceedings bad before him.
To this evidence, JBrazee, for defendant, objected.
1st. That the proceedings were not judicial, because there were but two arbitrators, when the law requires three.
2d. That it does not appear the arbitrators were sworn.
3d. That it does not appear that any award was ever returned to the parties.
Johnston and Allen, contra.
BY THE COURT.
The motion is overruled; Parties may submit to the arbitrament of any number of men. The statutory arbi*39tration *does not take away the common law right. If it be [38 necessary to prove that the arbitrators were sworn, that fact may be proven by parol. The omission to return an award to the parties, if true, is no objection here, more than it would be upon a charge of perjury, committed by a witness before a court or jury, to urge that the court or jury could not agree upon a verdict and judgment. Verdict for the plaintiff, for twenty-seven dollars and fifty cents.
Srazee moved in arrest of judgment,
because there was no colloquium set forth in the declaration.
BY THE COURT. It is true, as claimed by the defendant, that where words are not actionable in themselves, but become so by reason of their relation to some other thing, the plaintiff must set forth, as inducement, the matter relied upon in the declaration, and show the relation which the words complained of have to such matter. This declaration does both. It sets forth the case, the trial, the oath, the testimony given by plaintiff, and that the words complained of, were spoken of the plaintiff, the trial, and the evidence. The motion is overruled.
Judgment on the verdict.
[Common law mode of arbitration is in force in Ohio; State v. Jackson, 36 O. S. 281, 284.]