#### WILSON, BY HIS FRIEND *v.*OLIPHANT.

Slander — false swearing — material evidence — perjury—mistake of the court.

A charge of false swearing to be actionable, must relate to some swearing, which, if false, would be peijury.

If a witness testify to material matter, and also to that not material to the issue, upon which no perjury could be committed, and one say of the latter testimony only, it is false, no action will lie; but if the parties have made up an immaterial-issue, or evidence has been improperly admitted that will not avail asa defence to a charge of false swearing, even though the judgment is reversed or a new trial is awarded for such error.

If the evidence related to matter in issue, the mistake of the court in the law regulating its admission, will not avail the slanderer of the witness as a defence.

Error to the Court of Common Pleas. It appeared by the record that Oliphant had a note on Wilson payable in money. He sent it to one Nelson in a letter, to be collected, without giving any directions to receive any thing in payment but money. In a suit on the note the above facts were proven by Oliphant, and also that Wilson before the suit, had delivered corn to Nelson in discharge of the note, and that Nelson agreed to deliver it up. This was the whole evidence. In speaking of this evidence, Wilson said *he swore a lie.*The judgment was for the plaintiff below, and to reverse it this writ of error is prosecuted.

' *Goddard,*for the plaintiff in error,

contended that it appeared by the record that the evidence before the justice was immaterial, and therefore, as perjury could not be committed by such false swearing, the charge that he swore a lie in that matter, could not impute perjury or sustain the action. The law and the form of the declara*154tion, require of the plaintiff in slander to aver that the testimony spoken of, was material, and it was requisite to prove such averment. He cited 1 *Dess. R.*461; 6 *John. R.*82; 20 *John. R.*344.

*S. W.*Culbertson, contra,

contended that the evidence as to which the words were spoken, was material.

Hitchcock, J.

The principle in such case is, that the charge of false «swearing must relate to some matter which, if false, would be perjury. To say of another’s testimony in court, he swore false, is held equivalent to a direct charge of perjury, and actionable; but if at the time of speaking, the words are qualified so as to show, that the matter of which he spoke was of immaterial statements of the witness, wherein perjury could not be committed, the words are not actionable. Is such the case here? The words spoken related to the whole evidence of the witness. There were no' qualifying words in the defamation; but, it is sought to elicit that qualification as an inference of law; because in strict law the whole evidence on the defence was improper. The trae question is, was the testimony material to the matter in hearing? Suppose an issue is made up and tried, and a witness testifies upon it, and is charged with swearing falsely: Would it be competent for the accused to show, when sued for the slander, that in strict law the issue was immaterial and should have been stricken out? Suppose farther, that the judgment should be reversed for error in admitting the evidence and a new trial awarded, would that do away the slander? Could you incorporate this legal inference upon the slanderous words published as qualifying words, or as connected with the slander? We think not. So we understand the cases in New York, 13 *John. Rep.*81, and 20 *John. Rep.*384. If the words applied to the whole evidence, they are actionable, but if the witness testified to some things material to the issue, and some *immaterial,*and the slander only related to the latter, and was so undérstood, then no action can be maintained for speaking them. In this case the matter on trial before the justice was, as to the payment in corn. Suppose the justice mistook the law, and allowed that to be relied upon which was no legal defence, and that, as it appears to us, is all the plaintiff in error can claim, yet it was in fact the matter or issue tried before him, and the testimony was material to that matter.

The judgment is affirmed with costs.