Aldrich v. Brown

11 N.Y. 596

• Court: New York Supreme Court
• Decided: May 15, 1834
• Status: Published

Opinion

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.