Phincle v. Vaughan , 12 Barb. 215 ( 1851 )

By the Court,

Harris, J.

There is nothing in the words, as laid in the complaint, which in any way connects them with a judicial proceeding. In themselves, therefore, they are incapable of a slanderous meaning. Such words, before they can be made significant of crime, must be connected with some proceeding in which perjury might have been committed. (1 Starkie on Slander, Wend. ed. 22.) It must appear from the accompanying circumstances to have been meant and understood that the false swearing was such as would constitute the offense of perjury. This rule is settled by a line of authorities too inveterate to be questioned. (Stafford v. Green, 1 John. 505. Hopkins v. Beedle, 1 Caines, 347. Ward v. Clark, 2 John. 10. Vaughan v. Havens, 8 Id. 109. Crookshank v. Gray, 20 Id. 344. Rouse v. Ross, 1 Wend. 475.)

But when the words convey to the mind of the hearer an imputation of perjury, the charge is actionable. Thus, in Pelton v. Ward, (3 Caines, 73,) the charge was that the plaintiff had sworn to a lie, for which he stood indicted. It was held that the words necessarily involved a charge of perjury. So the words “ he has sworn falsely and I will attend to the grand jury respecting it,” were held to be actionable, in Gilman v. Lowell, (8 Wend. 573.) “ An intimation,” says Savage, Ch. J. “ that the plaintiff was indictable for swearing false, necessarily contains an assertion that he has committed the crime of perjury.” (See also Jacobs v. Fyler, 3 Hill, 572 ; Coons v. Robinson, 3 Barb. S. C. R. 625.) In the latter case it was held that a charge that the plaintiff swore false, meaningly to cut the defendant’s throat, amounted to an imputation of perjury. So, in this case, I think the words, “ yon have sworn false, when under oath, and if you had your deserts, you would have been dealt with in the time of it,” might naturally be understood as intended to charge the crime of perjury. To render the plaintiff liable “ to be dealt with,” for false swearing, he must have willfully sworn falsely, in a judicial proceeding. All this, therefore, is embraced in the assertion that the plaintiff had deserved to be dealt with for his false swearing.

[Albany General Term, December 1, 1851.

If therefore, the amendment had been allowed, I should have been inclined to hold that the words, if proved, would have been sufficient to sustain the action. But whether the amendment should be allowed or not, was a question addressed to the discretion of the judge. His decision is not, therefore, the subject of review. Upon the pleadings, as they came before him, the nonsuit was clearly right. By those pleadings, too, this court must be governed, even though it may see that the judge acted under a misapprehension as to the effect of the amendment, if allowed. To grant a new trial, under the circumstances which this case presents, would be, in effect, to reverse the decision of the judge at the circuit in refusing leave to amend the complaint. This can not be done. For this reason I am of opinion that the judgment at the circuit should be affirmed.

Judgment affirmed.

Harris, Parker and Wright, Justices.]