
    Roberts vs. Champlin.
    UTICA,
    July, 1835.
    In slander, charging a party with perjury in testifying as a witness on the trial of a cause, the plaintiff is bound to show that the evidence charged to-be false was material to the issue, to prove or disprove which the witness Was called.
    Error from the Yates common pleas. Roberts sued Champlin in an action of slander. The plaintiff alleged that he had been sworn and testified as a witness in a suit before a justice of the peace, in which Champlin was the plaintiff and one Burtch was defendant, and that in a coversation respecting the plaintiff and the testimony given by him in that suit, the defendant charged the plaintiff with having sworn false and perjured himself. There was also a count charging the defendant with imputing to the plaintiff the crime of perjury generally, without reference to any particular suit. On the trial of the action of slander it was proved that the suit of Champlin against Burtch was an action of trespass quare clausum fregit, that Roberts was sworn as a witness on the trial of that suit, and testified that Champlin had said that-7ie would sue Burtch from Starkey to Benton, i. e. from one town to another, which was the whole amount of his evidence. Several witnesses proved the words alleged in the declaration, bait testified that the false swearing imputed to the plaintiff had reference to the testimony given by him on the trial between Champlin and Burtch. The counsel for the defendant insisted that the evidence given by Roberts on the trial of the suit of Champlin against Burtch was not material to the issue then tried, and that therefore the words for the speaking of which this action was brought were not actionable, and moved that the plaintiff be nonsuited. The court granted a nonsuit, and the plaintiff sued out a writ of error.
    
      C. P. Kirkland, for the plaintiff in error.
    I. L. Wendell, for defendant in error.
   By the Court,

Savage, Ch. J.

False swearing in a cause, unless to some fact material to the issue, is not perjury, and is not the subject of indictment or punishment; and as this class of slanderous words are actionable in themselves only when they impute a crime punishable by law, it follows, that to charge a man with false swearing simply is not actionable, unless reference is made at the time to testimony given wherein the crime of perjury might have been committed. In an action of this nature, where the words Spoken do not necessarily import perjury, the plaintiff is bound to show that he swore under such circumstances that he might have been guilty of the crime. He must therefore prove that the testimony alluded to by the defendant and charged as false, was material. In this respect the plaintiff failed, in the court below, in sustaining his action upon the words which impuie/tiZse swearing. Whether the plaintiff had said he would sue Burtch from Benton to Starkey or not, was totally immaterial to the issue then on trial. It did not prove nor disprove that Burtch’s children or cattle or geese had trespassed upon the plaintiff, nor could it affect the damages. Thus far, therefore, the court below were clearly right. To some of the witnesses the defendant added, that the plaintiff had perjured himself. When this was’ said, and explained to mean the testimony alluded to, the charge carried with it its antidote. It was impossible that perjury could have been committed in the testimony to which allusion was made; the words, therefore, are not actionable, any more than those of false swearing. To say that A. B. committed perjury in an extra-judicial affidavit, or any oath not sanctioned by law, is not actionable, because the legal technical crime of perjury could not have been committed. The same consequence must follow where the charge is made of immaterial testimony. The facts sworn to by the plaintiff were no more legal material testimony in the cause, than if the oath had been taken out of court, or before a person not authorized to administer it. The materiality of the testimony is as essential an ingredient in the crime of perjury as the legality of the oath itself.

I am aware that this doctrine is liable to serious objections. The same injury may be done to the character of the accused by a charge of false swearing or of perjury, when perjury could not be committed, as if it could ; and it may produce the same or even greater tendency to a breach of the peace. But we find the law settled, that words of this description are not actionable unless they import a charge of perjury. It is also settled, that any words imputing a crime in terms, may be so qualified and explained by concomitant circumstances, as to become not only neutralized but even innocent. From the application of these principles to this case it results, that the words spoken were not actionable.

The court below decided correctly, and their judgment must be affirmed.  