
    Jacobs vs. Fyler.
    Words spoken in reference to a judicial proceeding and which impute false swear, ing to one of the witnesses—e. g. “ he has sworn false to my injury six or seven hundred dollars"—amount to a charge of perjury, and are therefore actionable per se.
    
    In an action for words of this character, the •materiality of the testimony in reference to which they were spoken, though averred in the declaration, need not be proved, but will be presumed.
    As a general rule, it is to be intended that what a witness has sworn to is material Per Cowen, J.
    In slander for words charging false swearing in a judicial proceeding, if the words themselves were not so qualified as to come short of imputing perjury, it will be no defence that the testimony in reference to which they were spoken was immaterial. Per Cowen, J.
    Where the words in themselves amount to a charge of perjury, the plaintiff need not show that a suit was pending, or that the words referred to any suit in particular. Per Cowen, J.
    A pending suit and a colloquium respecting it are only necessary in those cases where, without them, the hearer would be left in doubt whether the oath of the plaintiff might not have been voluntary. Per Cowen, J.
    The case of Bulloch v. Coon, (9 Cowen, 30,) commented on and explained.
    In slander for words charging the plaintiff with having sworn falsely in a pending suit, the declaration averred the suit and a colloquium respecting it, but omitted the name of one of the defendants ; and, at the trial, the circuit judge refused to regard the variance. Held, that he did right.
    Slander, for words imputing perjury, tried before Moseley, C. Judge, at the Onondaga circuit, September 30th, 1841. The action was brought by Amasa Jacobs against Asa Fyler. The declaration set forth a suit tried at a circuit court in Onondaga county, between Matthew L. Winne, plaintiff, and the said Asa Fyler, defendant; averring that Jacobs was there sworn and gave material testimony on the part and behalf of the said Winne, &c., and that the words complained of were spoken of and concerning the said Jacobs and his testimony so given in said suit, See.
    
    On the trial, the proof was of a suit in which Matthew L. Winne was plaintiff, and Asa Fyler and Orrin Fyler were defendants ; and that the present defendant, in speaking of the suit after it had been tried, said, that Jacobs (the present plaintiff) had sworn false and ought to be dealt with in the church. On another occasion he said to one Aylsworth, referring to the same suit, that Jacobs had sworn false to his injury of six or seven hundred dollars. The defendant objected, 1. That the proof varied from the declaration in respect to the suit in which the plaintiff’s alleged testimony was given ; 2. That there was no sufficient 'evidence of his having been sworn in the suit mentioned in the declaration ; 3. That the materiality of the testimony, if any had been given, was not shown. The circuit judge overruled these objections, and submitted the cause to the jury; whereupon the defendant’s counsel excepted. Verdict for the plaintiff. The defendant now moved for a new trial on a bill of exceptions.
    
      J. A. Spencer, for the plaintiff,
    insisted, that the several objections taken at the trial were well founded, and should have been allowed. He cited 3 Stark. Ev. 1143, 3d Am. ed. ; Bullock v. Koon, (9 Cowen, 30 ;) M'Claughry v. Wetmore, (6 John. Rep. 82 ;) Crookshank v. Gray, (20 id. 344, 349 ;) Ross ads. Rouse, (1 Wend. 475 ;) Chapman v. Smith, (13 John. Rep. 78, 81 ;) Power v. Price, (12 Wend. 500, 16 id. 450, S. C. on error.)
    
    
      B. B. Noxon,
    contra, cited in answer to the 1st point, 2 Saund. Pl. & Ev. 796, 7 ; id. 807 to 809 ; May v. Brown, (3 Barn, & Cress. 113 ;) Potter v. Hopkins, (25 Wend. 417 ;) The East Boston Timber Co. v. Persons, (2 Hill, 126 ; 2 R. S. 343, 4, 2d id. ; id. 328. In answer to the 2d and 3d points, he cited Power v. Price, (16 Wend. 450 ;) Stone v. Clark, (21 Pick. 51 ;) Carter v. Andrews, (16 id. 1.)
   By the Court, Cowen, J.

If it was necessary to show the fact that the plaintiff was sworn as a witness, the slander itself impliedly admitted it. That is sufficient. There was no objection that the proof was .secondary in degree.

As a general rule, it is to be intended that what a witness has sworn to is material; and when he is charged with having sworn falsely in a judicial proceeding, the charge imports perjury. (Power v. Price, 12 Wend. 500, 502 ; 16 id. 450, S. C. on error ; Stone v. Clark, 21 Pick. 51.) If the defendant mean to escape on the ground that the plaintiff’s testimony was in truth immaterial, and so not perjury, he must show that fact on his part. Indeed he must go much farther. He must prove that the slanderous words themselves were so qualified as to come short of imputing the crime of perjury. The injury consists in the fact that the defendant ostensibly charged the plaintiff with perjury. The hearer can know nothing of what actually passed in court to qualify the real nature of the falsehood imputed. Of what possible effect by way of exculpation or mitigation can it be, after telling the plaintiff’s neighbors that he had been guilty of a crime, to go farther and show that he was innocent 1 The proposition comes to that. The plaintiff is sworn as a witness. The defendant says he swore falsely. No hearer can presume that he had been telling an idle story having no connection with the cause, for no court would listen to such a story ; and therefore the charge must be interpreted as one of perjury. How then can it take from the slander that the plaintiff in fact swore to nothing material 1 If the defendant said so, very well; then there was no slander ; but the whole comes down to the words themselves. (Stone v. Clark, 21 Pick. 51 ; Carter v. Andrews, 16 id. 1.) It is not even necessary to prove that a suit was pending, or to show that the colloquium referred to any suit in particular, where the words in themselves amount to a charge of perjury, as it appears to me they did here. (Sherwood v. Chase, 11 Wend. 38, and the cases there cited ; Gilman v. Lowell, 8 id. 573, 577.) Take the words addressed to Aylsworth: “He has sworn false to my injury six or seven hundred dollars.” No one would understand this to be extrajudicial swearing, or telling a white lie. The words, per se, import perjury. A pending suit and a colloquium concerning it are necessary in those cases only where, without them, the hearer would be left in doubt whether the oath might not have been voluntary. (Gilman v. Lowell, 8 Wend. 573, 577.) If thé words are incompatible with its being so, the slander is only aggravated by the defendant going behind them, and showing that the plaintiff took a legal or judicial oath and stated facts which throughout were utterly immaterial and necessarily innoxious. The case of Bullock v. Coon, (9 Cowen, 30,) related to a charge in the face of the arbitrators and audience while the plaintiff was testifying, that he was swearing to a lie. The case turned wholly on the degree of prool which was received at the circuit to show the jurisdiction of the arbitrators. When it was said that materiality should also have been shown, it may have been true of the particular case for reasons not appearing ; but it was going beyond the general rule, and beyond the point on which the new trial was granted. Even in respect to the latter, it would, I apprehend, have better accorded with the course of modern and well considered authority, to have held that ostensible jurisdiction was enough to render the words legally pernicious, and that the bond of submission need not have been produced.

If the words in the case before us were actionable independently of the suit and oath recited, and the colloquium alluding to that suit, then the question of variance is unessential. It can hardly be said that here was any variance. The declaration recites a suit of Winne v. Asa Fyler. The suit proved , was in truth between those parties; but Orrin Fyler was also defendant. There is no doubt, however, that if this was a misrecital, the pleading was amendable within the statute, and, according tó our settled course of practice, if the statute were inapplicable.

New trial denied.  