
    *Aldrich vs. Brown.
    In an action of slander, where the words are alleged to have been spoken charging perjury, in reference to a particular transaction, as where the defendant is charged with having spoken words imputing perjury to the plaintiff, in giving testimony as a witness in a certain cause, the plaintiff is bound to prove the words as laid, and is not at liberty to give evidence of a general charge of perjury.
    This was an action of slander, tried at the Otsego circuit in September, 1831, before the Hon. Robert Monell, one of the circuit judges. The declaration contained several counts, in all of which, words were laid to have been spoken by the defendant, imputing to the plaintiff the crime o{ perjury, but the counts also contained other defamatory words not actionable per se, and the former as well as the latter were alleged to have been spoken in reference to the testimony of the plaintiff as a witness, on the trial of a certain cause mentioned in the declaration. On the trial, the plaintiff offered to prove that the defendant had charged him with perjury ; which evidence was objected to, unless accompanied by proof that the charge was made in reference to the testimony of the plaintiff, upon the occasion specified in the declaration. The circuit judge sustained the objection, and subsequently, upon another ground, deemed unnecessary to be here stated, nonsuited the plaintiff. This court set aside the nonsuit as erroneously granted, but upon the question above stated, confirmed the decision of the circuit judge.
    H. Denio, for the plaintiff.
    C. P. Kirkland, for the defendant.
   By the Court,

Nelson, J.

The words being laid as spoken in reference to the testimony of the plaintiff upon a particular occasion, the plaintiff was bound to prove them as laid, and was not at liberty to give evidence of a general charge of perjury ; for if permitted to-do so, he might take the defendant by *surprise, who was bound to answer only to the charge contained in the declaration. What is said by Mr. Starkie in his treatise on evidence, in reference to a precise local description of an injury sustained by the diversion of a water course, is very applicable to this case : “ The precise description (he says) identifies the injury, and so far ascertains its nature and extent, as to distinguish it completely from an injury of the same kind committed in a different situation.” Starkie’s Ev. part 4, page 351. See also idem, page 861. Besides, upon a general charge of perjury, the defendant might have justified by showing the plaintiff to have been guilty of the crime at any time previous to the speaking of the words ; but by the specific charge set forth in the declaration, he was confined in his defence to that particular instance. 2 Chitty’s Pl. 257, 260, 361.  