
    Power vs. Price.
    ín slander, where the plaintiff is charged with false swearing on the trial of a cause, and the words are not per se, actionable, the plaintiff is bound to prove that the testimony given by him, in reference to which the charge is made, was material to the point in issue in the cause in which he was sworn as a witness.
    It seems that where the charge is general, the law may perhaps presume that some part of the testimony was material; but if the charge is confined to a particular fact sworn to, such presumption will not be indulged, but it must be affirmatively shown that the fact was material to the issue. 'Where there is no dispute as to the facts sworn to, the question whether the testimony was or was not material to the point in issue is a question of law.
    ERROR from the Ontario Common Pleas. Price sued Power in an action of slander, for charging him with swearing false as a witness, on a trial in a justice’s court, in a cause in which Power was plaintiff and M’Lowth and Osgood defendants. The charge was general, that Price had sworn false upon the above occasion. In the declaration the trial was se t forth, and it was alleged that Price was examined as a witness ; but it was not averred that the testimony given by him was material to the issue. The suit before the justice was for taking and selling a quantity of hay belonging to the plaintiff, by virtue of a warrant issued by the defendants as the trustees of a school district, to collect a tax voted at a district meeting held on the 22d May, 1830, which was alleged to be an adjourned meeting from the annual meeting held on the tenth of the same month. The plaintiff contended that the proceedings of the meeting of the 22d May were void, because the annual meeting had been adjourned for a year, previous to the adoption of the resolution to have a special meeting on the 22d May. Price testified on that trial on the subject of the adjournment, gave an account of the proceedings of the meeting, and. that he made a motion for its adjournment until the 22d May. After the trial, Power told him that he had sworn false in giving his testimony, inasmuch as he had often told him that the annual meeting was adjourned for a year pre-vio as to the adoption of the resolution to adjourn to the 22d May, and that he had now sworn that he did nol recollect such fact, when in truth he did recollect it. The defendant insisted that the plaintiff was not entitled to sustain his action, because he had failed to show that his testimony, charged to be false, was material to the issue tried; and that from the evidence which had been given, it was apparent that his testimony was irrelevant or immaterial. The court charged the jury that the plaintiff need not prove affirmatively that the testimony given by him on the trial before the justice was material, and that if they were satisfied that a trial had been had before the justice, in which the plaintiff was sworn and testified as a witness, and that the words charged in the declaration had been spoken, the plaintiff had sustained his action ; if, however, from the proof exhibited before them, they were of opinion that the testimony of the plaintiff before the justice was immaterial, then the plaintiff was not entitled to recover ; but at the same time instructed the jury that the court were of opinion that the testimony given by the plaintiff, on the trial before the justice, was material. The jury found a verdict for the plaintifi'for $300 damages, on which judgment was entered. The defendant sued out a writ of error.
    
      J. C. Spencer, for the plaintiff in error.
    The common pleas erred in instructing the jury that the plaintiff below was not bound to show that his testimony on the trial before the justice was material, 9 Cowen, 30, 1 Wendell, 475, and they also erred in expressing their opinion that such testimony was material; its materiality was a question of fact which should have been submitted to the jury, who should have been permitted to pass upon it, uninfluenced by the expression of the opinion of the court. 3 Wendell, 102, 418. 4 id. 642. 7 id. 411. The testimony of the plaintiff is not alleged in the declaration to have been material. On its face, and unexplained, it was not so material that perjury could have been assigned of it, nor was its materiality shown by evidence. Without such proof, the plaintiff was not entitled to recover.
    
      ,S. Stevens, for the defendant error.
   By the Court,

Nelson, J.

The common pleas undoubted-]y erred in laying down the position, that the plaintiff was not bound to prove that the testimony, which he gave on the trial before the justice, was material to the point in issue, in respect to which the charge of false swearing was made by the defendant; it is an essential ingredient in the crime of perjury, and must be averred and proved. 6 Johns. R. 82. 13 id. 81. 20 id. 349. 9 Cowen, 34. 1 Wendell, 477. 2 Chitty’s Cr. L. 456. If the charge is general, and proof be adduced that the plaintiff was a witness, and gave evidence on the trial of a cause, the law may, perhaps, presume that some part of his testimony was material: but if the charge is confined to a particular fact sworn to, such presumption ought not to be indulged : it should appear affirmatively that the fact was material to the issue. Although the law may reasonably enough intend that some part of the testimony given by a witness on a trial is material, the presumption would be too violent that the whole was so ; and without such presumption, it cannot be said that a specified part is material.

The common pleas, however, were right in instructing the jury that the evidence in this case showed that the testimony charged to be false, was material to the point in issue before the justice. When there is no dispute as to the facts, the question whether the testimony was or was not material to the point in issue, is a question of law. The suit before the justice was brought by Power, against the trustees of a school district, for property taken under a warrant issued by them, and the ground of the action was, that the district meeting, .at the time they voted to raise the tax, was illegal. The ¡plaintiff there was examined, and testified in reference to that point on the trial. Power alleged that the annual meeting had adjourned over, and was dissolved previous to the vote of •adjournment to the 22d May, on which day the inhabitants of the district met and voted the tax. The plaintiff swore that he had no recollection of the fact alleged by Power, and Power ¡charged him with swearing false in so testifying. To show that the meeting was held without authority, was pertinent to the issue; and the testimony of the plaintiff having an immediate bearing upon that point, was material.

Judgment affirmed.  