
    *Haight against Morris.
    1. A writ of error will lie upon a judgment of non-suit.
    2. An action will lie for saying of another, that he had committed perjury on a trial in the court of another state. Sed qucre.*
    3. A copy of the record of a trial in the Court of Sittings of New York, though certified only by the clerk of the Supreme Court of that state, may bo given in evidence. Sed quere,
    
    The state of the case will fully appear by the following assignment of errors, joinder in error, and bill of exceptions, taken in the Court of Common Pleas of the county of Monmouth, viz:
    
    New Jersey Court of Appeals, of the term of May, in the year of our Lord one thousand eight hundred and twenty-one. Charles Haight against Jonathan Morris, on writ of error to the Supreme Court, on judgment in case.
    And the said Charles Haight, by Lucius Horatio Stockton, his attorney, comes now here before the Court of Appeals, in all causes of law in the last resort, and saith, that in the record and proceedings, and also in rendering of judgment of non-suit against him in the Court of Common ■Pleas of the county of Monmouth, and also in the Supreme Court of the said state of New Jersey; there is manifest error in this, to wit, that it appears by the record that he brought an action in the Court of Common Pleas, in the said county of Monmouth, against the said Jonathan Morris for the speaking of certain false, slanderous and defamatory words by the said Jonathan, of and concerning him, the said Charles; and that this action of trespass on the case was prosecuted by writ, a proper declaration, on which a plea was filed by the said Jonathan, and on which an issue was joined, which came on to be tried before a jury of the county of Monmouth, in said Court of Common Pleas, and on which trial it appears, by the record, that the said Charles gave full and sufficient evidence of the speaking of said false, slanderous and defamatory words by the said Jonathan Morris, of and concerning the said Charles Haight; notwithstanding which the said Court of Common Pleas, or a majority theréof, did, on certain feigned, false, fictitious, insufficient and frivolous pretences, refuse to suffer a * verdict of the jury so as aforesaid duly summoned to try the issue so as aforesaid joined, between the aforesaid parties to be taken and rendered, but did unlawfully order a judgment of non-suit to be rendered against the said Charles Plaight, and notwithstanding the said Charles Plaight did sue out a writ of error before the said Supreme Court, whereby 'all the aforesaid matters and things were made 'manifestly to appear before them of record, yet the said court, or a majority of said court, did unlawfully affirm the judgment rendered in the court below, whereby the said Charles Plaight had judgment of non-suit, rendered against him; wherefore, for these grievances, and other manifest errors and imperfections, appearing in the record of the said proceedings and judgment of non-suit, rendered against the said Charles Haight, whereby he is greatly oppressed, harassed, endamaged and aggrieved, he, the said Charles Haight, doth pray that the said judgments of non-suit against him may, by this honorable court, be reversed, annulled and for naught holden.
    Lucius Horatio Stockton, Att’y of Plaintiff.
    
    And hereupon the said Jonathan Morris, by Garret D. Wall, his attorney, freely comes before the said governor and council, in the said Court of Appeals in the last resort in all causes of law, and says that there is not any error in the record and proceedings aforesaid, or in giving the judgment aforesaid — and he prays that the said Court of Appeals in the last resort in all causes of law, here may proceed to examine, as well the record and proceedings aforesaid as the matter aforesaid above for error assigned, and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed, &c.
    Garret D. Wall, Att’y of Deft in Error.
    
    Be it remembered, that on the twenty-eighth day of July, A. D. 1819, the issue joined, as by the record of the declaration and plea in this case will appear, came on to be tried at Freehold, in and for the said county of Monmouth, before a jury of the country, regularly summoned, empannelled, tried, chosen, sworn and affirmed to try the issue so as aforesaid joined by and between the said parties in the plea aforesaid, viz. (naming the jury, &c.) And the plaintiff, to maintain the issue joined on his part, did offer in evidence a certain record of a trial and judgment of the Supreme Court of the state of New York of John *Quay v. The Eagle Fire Company of New York, which was read; and did also offer a copy of a record of the judicial proceedings of the sittings in and for the city and county of New York, certified and attested, as by the same copy wfill appear, to which the counsel of the defendant objected, and did contend that the said evidence of the said copy was inadmissible and unlawful; and the counsel of the plaintiff contended that it was admissible and lawful, and the court delivered an opinion that it was unlawful and inadmissible, and did reject the same; whereupon the counsel of the plaintiff did propose a bill of exceptions to the said opinion of the court, and prayed that a bill of exceptions may be sealed, according to the statute in such case made and provided, which is accordingly done the day and year first above written.
    And the said counsel for the plaintiff, to-prove and maintain the issue so as aforesaid joined on his part, did further offer in evidence, to prove before the said jury, by the testimony of David Craig, Esq., a witness produced and offered on his part, that the said David Craig, Esq., was personally present at the city of New York, in' the month of December, in the year of our Lord one thousand eight hundred and sixteen, at the trial of the cause wherein one John Quay was plaintiff against the Eagle Fire Company of New York defendant, whereof mention is made in the record so as aforesaid given in evidence by the said Charles Haight to the court and jury in the present action; and that the said Charles Haight was offered, sworn and examined as a witness in the 'said court on the part of the said Eagle Fire Company of New York, to the admission of which testimony so as aforesaid offered to be proved on the part of the said Charles Haight,' the plaintiff, the counsel of the said defendant, learned in the law, did then and there object and insist, before the said court, that the said testimony was inadmissible and unlawful, and the said counsel of the said plaintiff did then and there’ contend that the said testimony was competent, admissible, and lawful; and the said court did then deliver and declare their opinion, that the said testimony aforesaid was inadmissible, incompetent, and unlawful, and did reject the same and declare that the said David Craig should not be sworn to give the testimony so as above offered on the part of the said Charles Haight, to which said last mentioned opinion of said court the said counsel of the *plaintiff did propose this bill of exceptions, and, according to the statute in such case made and provided, did pray the said court to seal the same, which is done accordingly by the said court, the day and year above written.
    And ■ the said Charles Haight, the' plaintiff, further to maintain and prove the issue so as aforesaid joined on his part, did prove in evidence, by the testimony of William Bowman, a witness produced, sworn, and examined on his behalf, who said he was at the house of Colonel Barnes Smock about the 30th August, of the year before last, and heard Jonathan Morris, the -defendant, speaking of Charles Haight, the plaintiff, and that the said Jonathan Morris, at that tinao, said that Charles Haight was a rascal and a rogue — that ho had took a false oath, and was a damned perjured rascal; that the family of Colonel Barnes Smock, his wife, and sister were present at the time; that they were eating breakfast, and that the witness ait that time worked for Colonel Smock. And the said William Bowman being cross-examined on the part of the defendant, did further testify, that they were talking something about the burnt buildings and some trial at New York, but cannot tell head or tail, or remember anything certain that was said about the trial at New York ; that what he heard the man say he has told ; that soon after the words spoken witness went out to his work; that witness never, at first, told Mr. Ilaight what he had heard, until Mr. Haight had heard he had been present, and came and asked him about it. And the said Charles Haight did prove, by the testimony of the said Colonel Barnes Smock, a -witness produced, sworn, and examined on his behalf, who said that defendant came to the witness’s house on the 30th of August, A. D. 1817, and settled an account, after which he stayed to breakfast; that witness told defendant that he had heard that on Quay’s trial, in New York, defendant had insinuated that witness had set fire to the buildings; defendant said that w7as one of Charles Haight’s damned lies; that Haight was a rascal and rogue, and had taken a false oath, and was a damned perjured rascal (they wore talking of the trial in New York, in which J. Quay -was plaintiff and the Eagle Fire Company defendant); he said that Haight had took a false oath about a certain tree; Morris repeated the expressions witness has mentioned several different times ; Morris said he would not countenance Haight or come into his company— *he was a damned scoundrel; Morris walked the room, and appeared much irritated against Haight; that witness’s wife, who is now so ill that she cannot come to court, was present, and checked Morris for what he said; that William Bowman was at that time in the employ of witness, and at the breakfast table, but that he went out as soon as he had eat his breakfast. And being cross-examined, on the part of the defendant, further said, that the conversation run on the trial before mentioned in New York; Morris said that Haight, among other things, had sworn false about a certain tree, which Morris alleged Haight had sworn was near his brother’s gate, when the tree was not there; Morris made a general charge against Haight of perjury, and when he was asked by witness wherein, he answered one thing was about the tree; the witness did not understand Morris as confining himself to the tree, but made no other specification. And did further prove in testimony, by John Lloyd, a witness produced, sworn, and examined on his part, that on th'e return, as witness thinks, of the defendant from the trial at New York, the witness saw him at the house of Thomas Little, innkeeper, at Red-bank, and heard him talking considerably about said trial and of the plaintiff; that Morris used many very harsh expressions concerning Mr. Haight, the plaintiff, the particular terms of which witness cannot at this time remember; but they, in their general tendency, charged Mr. Haight with perjury, Morris said that on the trial Haight had told a damned lie about a certain • tree between the gate of William Haight and the house late of Edmund Williams; the witness remembers that Morris said he believed Haight to be a perjured man; he seemed very much embittered against him, and made use of many harsh expressions ; that a number of people were present at the time at the tavern. 'And being cross-examined by the counsel of the defendant, did further say, that he is not absolutely certain whether Morris alleged that Haight had sworn false in saying that a tree of a particular kind was in a certain place, when no tree was there, or whether it was that Haight had sworn that one kind of tree was in a certain place, when another kind of tree was there. And did further prove in testimony, by John Grant, a witness produced, sworn, and examined on his part, that he heard defendant speak of plaintiff several different times, more than once; that he heard him speak of plaintiff, as witness thinks, on the *Sunday after the return from the trial, when a number of persons were present; that Morris observed that the trial had gone against Quay, and that Mr. Haight had sworn falsely about a certain tree; that he had sworn that a black walnut tree had stood near William Haight’s gate, and that he had sworn to a damned lie ; that Haight had drilled or trained a negro to swear against Quay, and that Haight was a damned rascal, and had sworn to a damned lie; that he had sworn to a damned lie, for the negro had sworn differently; that the witness heard Morris use the like expressions at another time, but cannot recollect distinctly the time, place, or who were present. And being cross-examined on the part of the defendant, said that the falsity of the oath, as Morris stated it, was that there was no tree there; and the witness has looked several times, and saw no such tree there.
    On which testimony the plaintiff' resting his case, the counsel of the defendant, learned in the law, did insist, before the said court, that the said case, so as aforesaid made out on the part, of the plaintiff, did not contain any evidence whatever, on his part, proper to he laid before the jury, on which the said jury could find a verdict for him, and did pray of the said court then their opinion and judgment, that the said plaintiff should be called to suffer a non-suit; but the counsel for the plaintiff did then and there insist, before the said court, that the evidence so as aforesaid given by him was evidence which ought to he laid before the jury, and did pray of said court to deliver their opinion and judgment, that on the whole matters aforesaid the case of the plaintiff should be submitted to the said jury, and that he ought not to be non-suited ; whereupon the said court then and there did declare and deliver their opinion and judgment, that the whole matters so as aforesaid offered by the plaintiff did not contain any evidence which ought to be submitted to the said jury, but that the said plaintiff ought to be called to suffer judgment of non-suit; on which the counsel of the plaintiff did propose this their bill of exceptions to this opinion of said court, and pray that the same should be sealed, which is accordingly done the day and year above written.
    On which such proceedings were afterwards had before the justices of the Supreme Court of Judicature of the state of New Jersey, on a writ of error removing the record of the said proceedings *and judgment before them, as that on the second Tuesday of November, A. D. 1820, it was by the said court adjudged and considered that the said judgment, so as aforesaid rendered against the said Charles Haight in favor of the said Jonathan Morris, should in all things be affirmed, &c.
    
      Frelinghuysen, for plaintiff in error,
    contended — I. That the copy of the record of the judicial proceedings of the sittings in and for the city and county of New York, certified under the' hand and seal of the clerk of the Supreme Court of New York, was good evidence.
    II. That it was competent to prove by a bystander who was present, that a witness was sworn upon a former trial, and that it need not be proved by the record of that trial; that the evidence, therefore, of Craig- was admissible.
    III. That the words spoken by Morris were actionable— 1. They were actionable under the second count of the declaration, which charged that the defendant spoke the words generally, and that the defendant could not justify himself by confining it to a particular charge; that the plaintiff gave positive evidence on this point, and it was so far proved, at least, that it should have been left to the jury ; for where there was any evidence the court could never non-suit. That the word perjured imports an act committed, and therefore,
    
      2. If the defendant undertook to justify himself (in accusing the plaintiff of perjury) by shewing that when he made such accusation he referred to a circumstance sworn to by the plaintiff on a trial in the state of New York, which not being material to the issue, could not therefore be perjury, it was incumbent on him to show that the evidence was immaterial.
    3. But it is actionable to say of a man in this state, that he committed perjury in the state of New York. All scandalous words that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, or impair his trade, are actionable. 3 Bl. Com. 124; 2 lisp. Dig. 79. It may be said that a person could not be punished in this state for committing perjury in New York, and therefore to say of a man, that he committed perjury in the state of New York, would not bring him in danger of legal punishment. But the answer to this is, that although the plaintiff might not be amenable to our law had the ^charge against him been true, yet under the laws and constitution of the United States he might have been demanded as a fugitive from justice, and have been punished, if guilty, in the state of New York. 14 John, Bep. 234; 2 Wils. 300; 2 Nsp. 81.
    After the attorney general had closed his argument, L. II. Stockton, who was associated with him, cited the following additional authorities. 6 Bac. Abr. 206, Slander B. 3; 1 New York Term Rep. 348, 349; Doug. 171, 374-5; 5 Term Rep. 669.
    
      Wall, contra, said
    1. That the Court of Common Pleas of Monmouth did right in overruling the minutes of the Court of Sittings. That this was material evidence, or it was not. If not material, then it was rightly overruled on that ground; if material, then it was not authenticated in the proper manner. It appears by the paper that there is a clerk of sittings. The minutes of the sittings are no part of the record of the Supreme Court — that relates only to the postea. It ought to have been authenticated under the act of congress or proven as at common law, by a sworn copy. This was not attempted. As it is, it is but the copy of a copy.
    
    
      2. The evidence of David Craig, to prove that Haight was sworn as a witness on the trial in New York.
    This in some measure depends on the first. The great and leading rule of evidence is, that the party must give the best evidence. If a matter to be proved is a matter of record you must give the record; you cannot, by failing to produce the record, substitute in its place the frail memory of witness; you cannot, by omitting to furnish yourself with the highest and best evidence, make room for the inferior. The record here ought, as the highest and most certain evidence, to have been produced. He was not competent to prove the identity of Charles Haight, because the proof that he was sworn as a witness lay at the foundation of the matter — without that the identity was nothing.
    I. But these are mere minor points. The great question is, was the court right in ordering the plaintiff to be non-suited? The question is agrave and important one, and opens to our discussion the ground and foundation of slander.
    There are two counts in the declaration. The first is for a charge of perjury committed in the courts of justice in New *York, and is confined to that altogether. The second count is the same in fact. It is dependent on the first, and has relation to it. 2 Wils. 114. But even if this was questionable, the words proved have relation to the New York trial. The testimony of Bowman and Smock is to be taken together — they relate to the same conversation; and although Bowman relates only detached parts, what he has omitted is supplied by the testimony of Smock. Thirs Bowman “ testifies that Morris, at the house of Smock, said Iiaighfc had taken a false oath, and was a damned perjured rascal; that they were talking about the burnt buildings and some trial in New York. Smock, who was present at the conversation alluded to by Bowman, says that the conversation “ run on the trial in New York, and that Morris said that Haight had sworn false about a certain tree, which Haight swore was near his brother’s gate, when there wms no tree there.” That Morris made a general charge, against Haight, of perjury; and when he was asked wherein ■ — he answered, one thing was about the tree. Here it must be observed, that plaintiff can only prove and recover upon the words laid in the declaration; the other words have nothing to do with the matter.
    I shall contend that these words are not actionable — 1. Because they impute to the plaintiff a crime which is not punishable by the laws of New Jersey.
    2. That the words, as explained, do not impute any crime at all.
    1. Actions of slander will lie for words which are actionable per se, and words which are actionable because attended with special damage. 3 Blaek. 123-4. Words actionable per se, as if a man maliciously and falsely utters any slander or false tale of another which may endanger him in the law, by impeaching him of some heinous crime, as to say that he is perjured, hath poisoned another, &c. 2. Which may exclude him from society. 3 Selw. FT. B. 1056; Finch 3 B. 2 e. 185; 6 Bao. 2u5, a.; 3 Bos. $ Ful. 374. 3. Or may hurt his trade or livelihood. 4. Or which may cause special damage. The crime imputed must be punishable by statute law or common law. 3 Selw. 1056 ; Salk. 696 ; Cr. E. 502. To impute to any man the mere defect or want of moral virtue, moral duties, or obligations which render a man obnoxious to mankind, is not actionable. 3 Wils. 187; 6 Term Rep. 694. The same rule is laid down in New York. *5 John. 191, Broker v. Coffin. In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be actionable. So also in Pennsylvania the rule is the same. 1 Bin. 542; 3 Berg. § Raw. 260-1; 5 Bin. 218. If, then, it must subject him to punishment by common law or statute law, where and in what court must it subject him to punishment ? In Pennsylvania? in China? in France? No ! — but in New Jersey. An action lies for saying of a man, he did treason in the Low Countries: for a person may be tried and punished in England for treason in the Low Countries, for he is triable in England by statute 35, 8 Hen. 6 Bae. 206; 1 Com. 249, D. 1; 1 Rol.. Ab. 63, p. 32. It is no answer to say, that by the laws and constitution of the United States he. may be demanded, and taken to the state where the offence was committed. The principle is, that it must subject him to punishment here. Nor will it do for gentlemen to argue about the reasonableness of the rule: it is a positive regulatidn, founded on wise principles. The action of slander is not a favorite of the common law. It is not known in the juridical history of Great-Britain until the 3d JEdw. It is reasonable, therefore, that the rule should be fixed. A further proof of the' rule may be drawn from the words which were formerly actionable, such as words charging another with witchcraft, &c., and which have now ceased to be actionable, since the'Statute'making witchcraft punishable, has been repealed.
    Again, if this is not the rule, how happens it that there is no instance of any action in the English books for words imputing a crime out of the jurisdiction of the English courts. The language of all the precedents is uniform, “ to subject him to the pains and penalties of the laws of England for such crime.” This speaks volumes. 2 Chit. 355; 8 Rep. 163, Vynior's case. Hobart 270; Cro. Ch. 528; Cro. Jac. 386. But if the words be actionable at all, they ou^ht to have gone farther, and proved that, by the laws of New York, perjury was indictable. We cannot take notice of the statute laws of New York, or that the common law prevails there — it must be proved. By the laws of Lycurgus, theft was no crime in certain cases,' — it was rather enjoined. These things all differ in different countries. Polygamy, &c., is allowed in some countries, and forbid in others.
    *3. The words were not actionable at all, oven if they imputed a crime in New Jersey, because they did not charge him with swearing false upon a matter material to the cause in question. All the evidence shews that the charge of perjury was in swearing that a walnut tree stood at a particular place, and no tree was there. This is a fair interpretation of the words. 3 Black. C. 123, n. Here, in each instance, the words were accompanied by an explanation. Perjury is a crime committed when a lawful oath is administered, by any one that hath authority, to any person, in a judicial proceeding, who swears absolutely and falsely in a matter material to the cause in question. 1 Bin. 545 ; 3 Inst. 164. The plaintiff shewed, in his declaration, that the defendant had a wife yet living, and that defendant said, “ thou hast killed my wife.” This was not actionable, as defendant cannot be put in jeopardy. 4 Rep. 16 a; Snag v. Gee, 6 Bac. 208; 1 Com. 271, F. 15; Wharton’s Digest 565, sec. 24.
    IT. No writ of eri'or will lie in this case. A plaintiff who voluntarily suffers a non-suit, cannot bring a writ of error. He elects to go out of court. 2 D. & E. 282; 2 Wm. Bl. 1222; 2 Tidd’s Frac. 798; Thom. Syst. Arrang. 499, 500; 4 Jac. L. D. 407, Non-suit; 4 Term Rep. 437; 4 Sup. to Vin. Abr. 61, F. 2; 1 Wash. 89, 138, 185; 2 Bin. 234, 248; 4 Ibid. 84; 1 Serg. & Rawle 360; 1 Blac. Rep. 670.
    
      R. Stockton, on the same side, contended
    1. That the evidence offered on the part of the plaintiff was properly overruled. The first piece of evidence, which was rejected by the court, was the minutes of the Court of Sittings of New York, shewing certain matters which did not appear on the postea or in the record of the judgment, and if was properly rejected, because it was not exemplified under the seal of the court whose proceedings it recorded. The paper itself shewed that there was a clerk of the sittings, and the presumption was that he had a seal, yet it was exemplified only by the clerk of the Supreme Court. The act of congress requires the proceedings to be exemplified by the clerk of the court in which the proceedings took place. 1 Laws of the U. S. 115, see. 1; Phil. PJvi. 302, note.
    
    2. The court did right in rejecting the evidence of Craig, *because the plaintiff had shewn, by the paper already produced, that there was a record of the proceedings,. which W'as the highest' testimony; and his failure to have that record properly authenticated could not authorize him to introduce inferior and parol testimony.
    II. But even admitting all the facts which were proved, and which the rejected evidence could have proved to be true, yet the non-suit was proper, both on the declaration and evidence.
    The great questions upon which this case turns are — 1. Are words imputing the crime of perjury in New York actionable in New Jersey, without special damage ?
    2. If they are actionable, whether* it was not incumbent on the plaintiff to have proved that, by the law of New York, perjury is indictable; that the sittings where the cause was tried was a court of competent authority to try the cause and administer the oath ?
    3. Whether it is charged with sufficient certainty, that the defendant imputed to the plaintiff the crime of perjury in New York ?
    Upon the first head, viz. that words imputing the crime of perjury in New York are not actionable in New Jersey, without special damage. Words, in order to be actionable, must charge a crime which, if committed, would subject the plaintiff to criminal punishment, not in foreign courts, but in the courts of New Jersey. That this was the criterion, lie argued, was proved by the requirement of the common law, by the books of authority, by the total absence of any dictum in any book of the common law to the contrary. 1. In England, the crime must subject to punishment in a criminal court of the kingdom. Cro. Ch. 229, 329, 393, 436; Salk. 694, 696; Stark. 30, 38; Cro. Eliz. 880; 4 Bac. title Slander, 486, pl. 40, 41; Roll. 63; 1 Com. Dig. 249, D.
    
    2. The absence of all cases from the English books. The case cited from 14 John. 233, ought not to be considered as an authority; because it was not argued before the Supreme Court, and it is erroneous in principle. It destroys the rule of the common law without giving any other.
    3. The general rule among all nations is, that one nation takes no notice of the municipal laws of another, especially its penal laws. Whenever they come in question, they must be alleged *and proved like facts. Bark. 268. 1 B. Wms. 432. Cowp. 174. 2 Past. 260. 2 Cranch. 236. If one state cannot take notice of the municipal and penal laws of another, how can they sustain a suit which rests upon those laws ? The only answer given to all this is, that under the constitution of the United States, though the crime is only punishable in New York, yet the party may be arrested in this state, and sent there for trial. But this is no answer : for the rule of law is not “ that if he is punishable anywhere the words are actionable;” he must be punishable by the laws of New Jersey for the act imputed to him. This constitutional arrangement is mere matter of state policy between independent governments. It is often introduced into treaties, and amounts to nothing more than that criminals shall be delivered up.
    
      Secondly. But if the words are actionable, was it not necessary to have given some evidence of the laws of New York, that perjury was there indictable and punishable? Mr. S. contended that it was. It was no answer to say, that perjury is an offence against all laws. This court cannot take judicial notice of the laws of the state of New York-
    
      The declaration ought to have averred, and it should have been proved, that the Court of Sittings had jurisdiction to try the cause, and to administer the oath. The rule seems to be, that whenever the perjury imputed has reference to a transaction in a particular cause, the authority to administer the oath is essential. 3 Chit. Plead. 355. 8 Went. Plead. 268-9.
    The authority of the court to administer the oath is essential to the crime of perjury, and it cannot be imputed without reference to an oath in such court. An indictment for perjury would be bad without it. 2 Chit. Cr. Law 286. Stark on Slander 89.
    The question is reduced to this, can the courts of New Jersey take judicial notice of the authority of the courts in New York, without allegation and without proof? The English cases put it on this ground — if the court cannot take judicial notice of the authority of the court where the perjury is alleged to have been committed, the plaintiff cannot recover.
    3. But if the non-suit was not right on any of these grounds, yet the plaintiff ought to'have charged and proved all such matters' as would shew that the crime imputed was a perjury which *could be criminally punished in New York. It ought to have been charged and proved that the matters upon which the perjury was imputed, was in giving evidence on a point material between the parties on the trial of the issue. 3 Buis '. Pep. 150. 1 Viner 408, pi. 13. 1 John. Pep. 506.
    
      L. H'. Stockton replied.
    
      
      As the Court of Errors merely reversed the judgment, without assigning any reasons, it is impossible to know whether they determined upon all the points raised in the argument, or one only. Their decision, therefore, cannot be conclusive upon either.
    
   The Court of Errors (with the exception of Judge Bowne, who was excused from Voting) unanimously reversed the judgments of the Supreme Court, and- the Court of Common Pleas of the county of Monmouth.  