
    *FRANKLIN COUNTY,
    DECEMBER TERM, 1832.
    JUDGES-HITCHCOCK AND WRIGHT.
    WAGGONER v. RICHMOND.
    Slander — affidavit to account — perjury—no slander to charge one of an offence which could not be committed.
    It is competent in slander to inquire as to the pecuniary ability of the defendant.
    An affidavit made to an account to be filed before a justice, is not authorized by law, and no perjury can be committed by swearing falsely in it.
    It is not actionable to accuse one of perjury in reference to such oath, because perjury could not be committed by it.
    Slander. Words, you are perjured. Plea, not guilty, with notice that plaintiff did commit perjury in swearing to an account to prepare it for a set-off on the trial of a cause before a justice of the peace.
    The plaintiff proved by Hart/, a witness, that the defendant said of the plaintiff, he was a perjured rascal. The witness was then asked what were the defendant’s pecuniary circumstances.
    
      G. Swan, for the defendant, objected to this.
   BY THE COURT.

The question may be asked. The circumstánces of the parties may be shown to the jury upon the question of damages. It is obvious that what would ruin one man might be a sum so trifling in the estimation of another as to be no punishment whatever to him.

O. Parish, for the plaintiff,

objected that the affidavit was extrajudicial and void — no perjury couldbe committed by such swearing, and therefore such matter is no bar to the action.

G. Swan, contra.

G. Swan cross-examined the witness,

who said the defendant, when he uttered the slander, was talking about the affidavit that the plaintiff had made before the trial at the justice’s, and it was in reference to that only that he charged the plaintiff with committing perjury.

Swan then moved for a non suit.

Parish opposed the motion.

O. Parish argued to the jury.

The witness answered that he was a wealthy man.

The plaintiff then rested.

The defendant offered in evidence the affidavit described in the notice.

BY THE COURT. The evidence is inadmissible; this kind of affidavit is not within the statute defining perjury. Whatever offence the party may have committed by swearing falsely to this affidavit, it is clear to us, no legal perjury was committed.

*BY THE COURT. The evidence tends to prove the case; [174 its effect is for the jury The motion is overruled.

THE COURT, to the jury. The charge here is perjury; but if the evidence satisfies you that the conversation and charge related to the affidavit made before the trial at the justice’s court, and was so understood, it must be so limited by you; and inasmuch as perjury could not be committed by the affidavit, the charge could not be perjury. Upon the same principle, to charge a man with being a murderer because he killed a dog, would not sustain an action. If you find that was the case here upon the evidence, the defendant is entitled to your verdict; 20 John. 344.

Yerdict and judgment for the defendant.

[Defendant’s wealth considered in estimating damages; Hayner v. Cowden, 27 O. S. 292, 297.]  