#### Jonathan Sibley *versus*Thomas Marsh.

In an action for slander in saying the plaintiff *<f*took a false *oath99*before referees, the defendant pleaded the general issue, and also in justification that the words were true *;*and offered evidence in support of the special plea. It was *heldf*that notwithstanding a justification was pleaded, the defendant had a right* under the general issue, to show that the words spoken had relation to the plaintiff’s testimony on immaterial points and so did not import a charge of perjury.

Action of slander. The declaration alleged that the defendant uttered and published of and concerning the plaintiff, certain defamatory words, *vis.*“ He is a damned liar ; he took a false oath, and I can prove it.” In the declaration there was a colloquium respecting a reference entered into, under the statute, between the defendant and one Gould, at which reference the plaintiff was duly sworn as a witness and testified; and there were innuendoes explaining the words to be a charge of perjury.

The defendant pleaded the general issue, and special pleas in justification alleging the words to be true.

A trial was had before *Parker*C. J. The report of the judge stated, that the plaintiff proved the speaking of the words. The defendant then offered to prove, under the general issue, that the plaintiff, in his testimony at the reference, said some things which were not true, which were not material to the subject of inquiry before the referees ; and he contended, that as there was no direct charge of perjury in the words uttered, the jury ought to consider that the charge of false swearing related to those matters of testimony which would not amount to perjury. But the judged ruled, that as the defendant had pleaded in justification, and so taken upon himself to prove that the plaintiff had sworn falsely in points which were material, he could not be allowed under the general issue so to limit the application of the words spoken, but that the jury should determine from the whole evidence, whether the innuendoes averred in the declaration were maintained or not. The defendant contended, that the jury ought to have taken this matter into consideration in mitigation of damages, if not in defence, under the general issue ; but there was no motion for so making use of the above facts The evidence relating to them *41vas before the jury, but whether it influenced their minds or not, on the question of damages, could not be ascertained.

*Sept. 30th.*

*Oct. 4th.*

The defendant, in support of his pleas in justification, produced witnesses to prove the testimony given by the plaintiff an the trial before the referees, and this evidence was left to the jury, together with such explanations as were given on the part of the plaintiff by the testimony of other witnesses ; and the jury were instructed to find the several special issues for the defendant, if they were satisfied that the plaintiff had knowingly testified falsely in the manner stated in the pleas, or either of them, taking into consideration each plea separately ; otherwise to find these issues for the plaintiff.

The jury returned a verdict, on all the issues, in favor of the plaintiff.

The defendant moved for a new trial because of the ruling of the judge in regard to the evidence offered on the general issue, and because the jury ought to have been instructed to take that evidence into consideration in mitigation of damages.

*Hoar*and Tufts, for the defendant,

cited Stark, on Slander, 55 ; *Stafford*v. *Green,*1 Johns. R. 506 ; *Ward*v. *Clark,*2 Johns. R. 10 ; Bac. Abr. *Slander,*B, 3; *St.*1826, *c.*107.

*Barton, contra,*

cited *Fowle*v. *Robbins,*12 Mass. R. 498.

*Per Curiam.*

As the defendant charged the plaintiff with false swearing only, which does not necessarily imply perjury,1 it was proper that the jury should have considered whether the words spoken had relation to facts immaterial to the inquiry before the referees, of which a false account under oath would not constitute' the crime of perjury.1 There seems to have been an inadvertence in drawing up the report. According to the recollection of the judge who tried the case, there was no direct motion to introduce the evidence under the general issue, but to have the evidence introduced under the special pleas applied to the general issue. It should seem that the jury may *42have thought they had no right to consider under the general issue the evidence which was received to support the special pleas. The report might perhaps be amended at the discretion of the judge, but under the circumstances we think it proper to grant a new trial.

1

 A charge of false swearing is actionable, where it necessarily conveys to the mind of the hearer an imputation of perjury; otherwise not. *Sherwood*v. *Chase,*11 Wendell, 38. See *Hopkins*v. *Beedle,*1 Caines’s R. 347; *Crookshank*v. *Gray,*20 Johns. R. 344; *Dayton*v. *Rockwell,*11 Wendell, 140; *Pratt*v. *Price,*11 Wendell, 127; *Gilman*v. *Lowell,*8 Wendell, 573.

1

 See *State*v. *Hathaway,*2 Nott & M'Cord. 118; *Wilson*v. *Nations,*5 Verger, 211.