#### Niven *against*Munn.

inA hnderatfor •plSHsf# 4w1th «¡Twft^cS tice'sMurt^in stated that the* risdiction, 'ey* mony was given pEi?nt,a u agood •, 8ift6r ■eerdict.’

satt)6 certainty is net repérjnryen¿ for

THIS was a motion in arrest of judgment in an • action of sender, in which a verdict was given for the plaintiff.

' The declaration- contained two-counts- y the first count stated that the defendant, in a certain discourse which he had of and concerning, the trial- of a certain cause between *David Mmn*and *John Wilson,*then lately had, before *Samuel Barnard,*Ésq. a justice of the peace, in and for the County of *Sullivan,*and of- and, concerning the testimony of the plaintiff, who ivas sworn * ^ * *•,*t 1 ^ as a witness, by the said *Samuel Barnard,*(he being a justice as - aforesaid,, and having foil power and; lawful authority to administer an oath,.) on.the Rial of the-cause, and testified ás ¿witness therein,- spdke and published, concerning - the plaintiff, these false,, scandalous, malicious, and defamatory words,. *lc whát he*(meaning the plaintiff) *has sworn: to isa damned lie,’1'1*(meaning thereby, that the plaintiff had perjured himself on the trial of the said cause.) ■ • ' ' «

- The *colloquium,*words charged, and *innuendoes,*iff the second count, were the same as in the first. ■ / ';

*Brackett,*for the plaintiff,

objected, preliminarily, that the whole, record' Ought to be produced, and not the declaration merely,'in which the defect is alleged.* .

*Beits,*for the defendant.

He cited' .1 *Caines' Rep.*349. 8 *Johns. Rep.*109. *Hawk. P. C. B.*2. ch. 25. s. 57. 1 *Hawk. P.*C. ch. 69. s. 4, *l Term Rep.*69. 6 *Johns. Rep.*82. 2 *Chitt.*Pl. *258. 4 Bl. Com.*137, 138.

*Brackett,*contra.

*

*1 Salk. 77. 825.*

Thompson, Ch. J.

It has not been ,the practice, in this court, to produce the whóle record, bütthedeclárationonly,adding that a yerdic't has been found for the party.

Platt,' J.?

delivered the opinion of the court.

*49This is a motion in arrest of judgment, after verdict .for thé plaintiff, In an action of slander.

I think *both counts*in the declaration are good.

To say of another, that “he has sworn falsely,’? or that “he has sworn to a lie,” is not actionable,.without a colloquium of its being in a cause pending. *(Hopkins v. Bedle;*1 *Caines,*347. *Stafford*v. *Green,*1 *Johns. Rep.*505.)

*Samuel*Barnard, Esq.r one of the justices of the peace, in anc£ for the county of *Sullivan ;*and of and concerning the testimony of the said *Niven,*who was sworn as a witness On the trial of the same cause, by *Samuel*Barnardi (he being a justice as aforesaid, and having full power-and lawful authority to administer an oath,) and testified as a witness on the trial.” All that is wanting to render this a complete and formal definition of *perjury,*is, 1st. That it is not expressly averred that the timony spoken of. was upon a *point material*in the Gause. Herfe is a colloquium; The words,.“ what *he has sworn to, is a damned lie,”*are averred to have been maliciously spoken in a discourse, “ of and concerning the trial of a Certain 'cause between *David Munn*and *John Wilson,*then lately had before testimony of *Niven*was in a cause in which the justice *had jurisdiction ;*and, 2dly. It is not expressly stated that the tes-

But it was well said, in the cause of *Miller*v. Miller, (8 *Johns. Rep. 74.,)*that “ it is not necessary, in order to render words actionable, that there should be the samé certainty in stating the crime imputed, as in an indictment for the crime.”

The present case, I think, exemplifies the truth of that proposition. The discourse to which the words related, was sufficiently explanatory to effect the purposes of slander and such as could leave no reasonable doubt that it was intended, by the. defendant, to accuse the plaintiff of *perjury.*Besides, the averments are to be construed less strictly *after Verdict.*

The plaintiff is entitled to judgment.