M'Claughry v. Wetmore

6 Johns. 82

Opinion

Per Curiam.

The defendant charged the plaintiff, with swearing false, as a witness m a court of justice, on a point material in the cause. These words so charged are actionable, if spoken maliciously; for they import perjury. To charge a person with taking a false oath in a court, has been held actionable, and this charge is synonymous. (Com. Dig. tit. Action upon the Case for Defamation, D. 5. 7.) In the case of Michell v. Browne, cited in 1 Roll. Abr. 70. pl. 45. it was held not actionable to say, “ He hath delivered false evidence and untruths, in his answer to a bill of chanceryj” but the case assigns the reason for it, that many things in a bill are not material to the matter in variance, and peradventure the charge applies to such matter.” In the present case the declaration states that the plaintiff was swearing to a matter material when he was so charged. In Stafford v. Green, (1 Johns. Rep. 505.) the charge was, that he swore false before ’squire Andrews ; but there was no colloquium stated, to show that it referred to a trial, or other legal-occasion ; and though there was an innuendo to that purpose,. yet it is certain that the want of a colloquium is not cured-by an innuendo; for that can only explain but not enlarge the meaning of the words, without the aid of a colloquium. (8 East, 427.)

After verdict, we must conclude that the malice was proved. If under any circumstances those words so spoken may be actionable, the suit is now to be sustained, and the motion must be denied.

Judgment for the plaintiff.