M'Kinly v. Rob

Where, in an action for slander, the declaration alleged, that words were spoken of and concerning the evidence given by the plaintiff, on a complaint, made by him, before a Justice of the Peace, on the 20th of March, 1820 ; and the proof was, that the complaint was made before the Justice on the 8 th of March, 1820 % Meld, that the variance was not material» Where the words, charged to have been spoken, impute to the plaintiff the crime of perjury, without any qualification or explanation, the defendant, to make out a justification, must prove, that the plaintiff, in giving his evidence, wilfully and corruptly swore false» It is not enough, to prove, that the facts sworn to, by the plaintiff, were not true, though it proceeded from mistake and misapprehension»

tiff, on a com THIS was an action for slander, tried before Mr. Justice Platt, at the Montgomery Circuit, in November, 1831. The declaration charged, that the defendant, on the 15th of June, 1821, at Johnstown, fkc. in a certain conversation, &c. falsely, &c. spoke of and concerning the plaintiff, and of concerning the truth of the evidence given by the plainlt made by him, on oath, before Abel a Justice of the Peace, on the 20th of March, 1820, at Amsterdam, cic, against one R. Slyter, for perjury, &c., the following words, vis.: “ He, (meaning the plaintiff,) had sworn false j” (meaning that the plaintiff had sworn false, and committed perjury, in giving his evidence before the Justice.) The defendant pleaded the general issue, with notice of justification. At the trial, Abel Dunning, a witness for the plaintiff, testified, that on the 8th of March, 1820, the plaintiff entered a complaint before the witness, being a magistrate of Montgomery county, against Reuben Slyter, for the crime of perjury, which complaint was made on the oath of the plaintiff} that, afterwards, on the 20th of March, 1820, Slyter was brought before the witness, on a warrant, to answer to the charge made by the plaintiff; and the plaintiff was then sworn as a witness, on the examination. The defendant’s counsel objected, that the plaintiff ought not to be permitted to prove any thing which the defendant may have said in relation to the evidence given by the plaintiff on the complaint, as that was made on the 8th of March, but was alleged, in the declaration, to have been made on the 20th of March ; and that the plaintiff ought not to be permitted to prove any thing which the defendant might have said in relation to the evidence given by the plaintiff on the 20th of March, as that evidence was given on the examination of the plaintiff, but not on the complaint made by him to the Justice, as stated in the declaration. But the Judge overruled these objections. The plaintiff proved the words to have been spoken by the defendant, as stated in the declaration. The defendant’s counsel, in opening his defence to the jury, among other things, stated, that if the jury, from the evidence to be introduced on the part of the defendant, should be satisfied, that the evidence given by the plaintiff, before the Justice, was not strictly and literally true, though the plaintiff might have testified through misapprehension, or mistake, the defendant’s justification would be made out, and he be entitled to a verdict. The Judge ruled, that in his opinion, the defendant would fail in making out a justification, unless' he proved, that the plaintiff wilfully swore false; and in his charge to the jury, the Judge, among other things, stated, that the defendant, in order to make out a justification, was bound to prove, that the plaintiff had, in giving his evidence before Jl. D., the Justice, wilfully and corruptly sworn false 5 that if the plaintiff, in giving that evidence, had, by mistake, misrepresented a fact, it was no justification to the defendant 5 and that it required the same evidence to sustain such a justification, as to maintain an indictment for perjury. The jury found a verdict for the plaintiff, for 500 dollars damages. A motion was made to set aside the verdict, and for a new trial.