#### Chapman *against*Smith.

*A*declaration in slander, charging that in a certain cause before a court of three justices *o£*the peace, constituted under the act concerning apprentices and ser■yanis, to hear and determine 4& certain, cause between the people of the state of *IFew*Y&rfcznd the defendant, the plaintiff was examined on oath,. administered by *the said count,*they having full, power to administer the same, and had given evidence foraud in behalf of the people; and'that the defendant spoke of and concerning the plaintiff and the prosecution,and the evidence given- by the plaintiff on the trial, and a point material to the prosecution, these words, 4fe. you have % s.wornto a damned lie, and I can prove it,” is go©!; there being. a sufficient averment of the jurisdiction of the court; and ■ the false title of the cause may he- rejected ás surplusage.

THIS was a writ of error to the court of common pleas of *Seneca*county. ;The declaration was for slander, and contained six counts. . ■'

The first count stated, that a prosecution had beeh depending before a court of three justices of the peace of the county of *Se.7ie.ta,*legally constituted, agreeably to the act entitled, an act concerning apprentices,and servants, passed 20th of *February.,*1801, to hear and determine a certain cause between the people, of the state *oí Jfcw-Y uric,*on the complaint of *Ebcnezcr Cartei'line,*jun., and the defendant below, which prosecution- or cause had been jately tried, And,the said *Smith,, the*plaintiff below, had been, and was, examined on oath,, administered by the court so holden by. the said justices, they, having full power and complete authority to administer the same, and had given his- evidence for and in behalf of the said people ;, and. that the defendant-below, well knowing, &c., and intending, ,&c., in a certain discourse' which he had with the' plaintiff below, in the presence and hearing, &c„ spoke to, and of, and concerning the- plaintiff "below, and concerning' the said prosecution, and concerning the evidence-given by the plaintiff on.’the trial, and'on-á point material in and to thé prosecution, these words; *“*You have sworn to a damned lie, and 1 can prove it.” . , . ’ .

Thé 2d, 8d, and 4th counts were the same, varying'only the words charged.. • -

The 5'1'h and 6th counts not being noticed, by the court, it is unnecessary to state them. • -

■ The court below gave judgment,'generally, for the defendant, in-error, on the verdict.' The cause was submitted to the court, without'argument. , ■ ■'

Spencer, J.,

delivered the opinion of the éourt. 'It Is objected, that thé judgment below being general, it ought fo be reversed ■for defec ts in the four first counts.; and if those counts are defective the judgment cannot be supported.

• „ The defects aré supposed to-consist in this, that it is not sufficiently alleged that the three justices had' jurisdiction of the *79ter set forth in the *colloquium;*and that there is no avermentthat the matters sworn to by the plaintiff below, were material. It is alleged in the declaration, in reference to the counts-ob-jected to, “ that a certain prosecution had been depending-*before a court*of three justices, of the peace of the county of *Seneca, legally constituted, agreeably to the act*entitled, an act concerning "apprentices and servants, passed 20th of *February,*Í801, to hear and deterihine a certain, cause betwéen the people of the state of *New-York,*onthe complaint of *Ebenezer*Carter-line$ jun., and the said *Titus Chapman,*defendant, and which said prosecution, or cause, had been lately tried at the town, &c. ; and on such trial the said *Ellcanah Smith*had been, and was, examined on oath, administered by the court, so hplden by the said justices, *they having full power and complete authority to administer the same,*and had given his evidence for, and on the part and behalf of the said people, at,’’ &c. The declaration then states, that the defendant below spoke and published to, and of, and concerning the plaintiff below, and of and concerning the said prosecution, which had been so depending as aforesaid, and of and concerning the evidence by the plaintiff below given, on the said trial,, as such witness as aforesaid, and on a point material in and to the prosecution, these false, scandalous, malicious, and defamatory words, that is to say: *■“*You (meaning the said *Ellcanah)*have sworn to a damned liej and I (meaning the saidTffws) can prove it.” •

The other three counts are substantially t-he same- .

The jurisdiction of the justices is supposed to be destroyed by the allegation, tha" they were constituted to hear and determine a cause between the people of the state of *New-York,*on the complaint of *Ebenezer Carterline,*jun., and *Titus Chapman,*.defendant: if they had not jurisdiction, then it is conceded that the false swearing would not be perjury, and the words would not be -actionable. The averments that the court was legally constituted, agreeably to the act concerning apprentices and servants, that the plaintiff was examined before that court on ©ath, and that they had full power and complete authority to ■administer the same, fully show a jurisdiction in the justices. By reference to the act under, and agreeably to, which it is averred the court of three justices was legally constituted, it will appear, that they had power and authority only to decide concerning the misusage of an apprentice or servant, by his *80tester or mistress, x>r of misbehaviour of the apprentice towards his master or mistress ; this act confers no authority upon three justices, to try any matter wherein the people Of the state airé concerned, ..."

After verdict,, we are, I think, warranted- in rejecting, as surplusage, the false title of the suit, The' three justices were convened under the act stated, and it was a plain misconception^ that the people ofthe state were concerned, but that misconception did not deprive them of jurisdiction. It was thfe very *gist*of the inquiry in the court below, as we must intend, whether* the three justices had power or not to administer an oath to thé plaintiff below; it having been averred, in the declaration, that the court was legally constituted, and; that they had full powers and complete, authority,, to administer the oath,.'the plaintiff below could not have.recovered á verdict *without showing it.*It is a rule Of the common law, that surplusage will not vitiate, after* verdict; *uiiH per inutile non vüiatur;*and, therefore, where, in *.trover,,*the plaintiff declared that, on the third of *March,*he was possessed of goods, which came to the defendant’s hands, and that, afterwards, to wit, On the first of March, he converted them to his own .use, it was held to be cured, after verdict... (2 *Tidd's Pr.*827., and the cases referred to.) '. ' ,

The cáse has frequently occurred in this court, that justices of the peace, in making returns to *ccrtiorarisj*have stated that thé cause was tried under the repealed act of 1808,-and. we have uniformly held, that a mistake of the act did not affect their jurisdiction. This can be considered in no other light than a mis-! entitling of proceedings, before magistrates authorized by statute to act, ' Suppose these magistrates had discharged the apprentice' from his. indentures, could it he contended that they were trespassérs,-on the ground of a defect of jurisdiction,- mere» ly because, they erroneously supposed the people of the state' • itere parties to the proceeding ? I should suppose not, .

In several cases wb have;' decided, that charging á person with swearing falsely before a justice, without a colloquium¡¡showing that it referred to .a trial, of other legal-occasion, was not actionable. (1 *Johns. Rep.*505. 8 *Johns. Rep.*109. 2 *Johns. Rep.*10.) But in *M'Claughry*v. *Wetmore, (6 Johns. Rep.*82.,) we say* that to charge a person with taking a false Oath in a court, has been held actionable. In-that case it was averred^ that the plaintiff was duly .sworn, and was testifying to *81a point materia] between the parties; and, of course, that averment fortified and strengthened the particular case; but it is manifest, from the opinion of the court, that the judgment would not have been arrested, had that averment not been contained in the declaration; we expressly said, that, after verdict, we must conclude that the malice was proved, and that if, under any circumstances, such words are actionable, the suit is to be sustained.

In the present case, there is an averment, that the words were Spoken of and concerning the evidence given by the plaintiff below, and on a point material in and te the prosecution ; but if this averment had not been made, I should still be of the opinion that, after verdict, we must intend that the words were spor ken in relation to material evidence. In *Pangburn*v. Ramsay, (11 *Johns. Rep.*142.,) it was decided, that where there isa defect, imperfection, or omission, which would have been fatal on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts, defectively or imperfectly, stated, or omitted, and without which it is not to be presumed the judge would direct, or the jury would have given, the verdict, such defect, omission, or imperfection is cured by the verdict. On the trial it would have been competent, to either party, to inquire in reference to what part of the evidence given, the words were spoken; and if it had appeared that they were spoken of evidence entirely immaterial, it is not to be presumed that the plaintiff below would have obtained a verdict. The verdict, therefore, shows, that it must have been proved that the words were spoken of material testimony. This principle, in my apprehension, applies, with equal force, to both objections ; for the plaintiff could not have succeeded in the court below, without showing that the justices had power to administer the oath to him.

Judgment affirmed.