#### Studdard v. Linville.

L From Stokes. J

Words to be slanderous must be spoken with an intent to slander, and must so be understood bv the hearers.

A defendant sued for slander, in charging the plaintiff with perjury, attempted to justify by proving that in a collateral matter, plaintiff had sworn falsely: held, that perjury may be committed in swearing falsely to a collateral matter with intent to prop the testimony on some other point: but such collateral matter must be material to the point in disputei if it be to a point, the existence or non-exisience of which cannot affect the question in dispute, it does not tend to pre. vent the due administration of justice, and therefore is not perjury.

Case for words spoken, charging the plaintiff with having committed perjury in a deposition which he had made.

Studdard had given his deposition in a suit in Equity, between one Campbell and the defendant, in which Stud-dard swore to a conversation between himself and Lin-ville, as to the state of mind of Linville’s father; and stated that Linville had told him that his father was'not more capable of taking care of his property, than a child of eight years of age.

*475In reference to this deposition, Limille had said, that if he had ever told Studdard so, he miist have been out of his senses; that he (Limille J would not have taken the oath for all Studdard was worth. On another occasion he said, speaking of Studdard, “ that a man had sworn crooked; it was too weak, and wanted strengthening; he thought a main spring made of ear leather was as good a thing as could be got:” and on another occasion he said, speaking of the deposition, that « he never had told Stud-dard, nor any other person, that he, S., had sworn he had; he rather thought if he had, he would have sworn false; that he intended to get testimony to do away that of Studdard.”

The Court instructed the jury, that words alleged to be slanderous, must, if unexplained, he taken by them in their common and ordinary sense: -how would those standing by and hearing them understand them ? If they should believe that it was the intention of the defendant to charge the plaintiff with perjury, and the words he made use of were such as to convey such intention to the minds of the by-standers, that they would be slanderous, and entitle the plaintiff to a verdict. They were the exclusive judges of the intention of the defendant, in speaking the words in the present case.

In the course of the trial, defendant, in support of the plea of justification, proved, that when Studdard, in giving his deposition, related this conversation, as to old Linville’s state of mind, the defendant asked him where they were when it took place, and how they were employed? to which Studdard replied, they were «on the south side of a spring, running off theland which defendant had purchased of Schweinite, with a pocket compass.” Lin-mile then asked Studdard, whose compass they had obtained? Studdard replied, Darius Mastin’s. Darius Mas-tin was acting as clerk to the magistrates who were taking the deposition, and instantly denied that he had loaned Studdard a compass: Studdard then said, thathehad *476obtained it from Matthias Mastín, the father of Bariusi On the trial, both Matthias and Bañns Mastín swore that they had not, cither of them, loaned Studdard the compass.

Upon this part of the case the jury was instructed, that a witness under examination could be guilty of perjury as well in a matter that ivas collateral to the main issue, as in the main issue itself: that if he swore falsely in a collateral matter, with the intention thereby to confirm and strengthen his evidence upon the'main point, it was perjury in him, if done knowingly: that if the defendant had satisfied them that the plaintiff, in that part of his oath relative to the compass and the survey, had knowingly sworn falsely with such intention, of thereby giving greater effect to his oath as to the main fact, that it would be a complete justification. If on the contrary, they should be of opinion, that, though that part of the oath was false, yet, that the plaintiff in taking it was influenced by no such corrupt motive, it would not amount to a justification, but would go in mitigation of damages; and of this intention they were the judges.

A verdict was returned for the plaintiff, assessing his damages to glO — The defendant moved for a new trial, because of misdirection in matter of law, and a finding contrary to evidence. New trial refused, judgment and appeal.

J. Martin, for defendant.

The charge of the Judge was incorrect in this case.

1st. Because he directed the attention of the jury to the intention of the party in speaking the words, instead of confining their view to the import and meaning of the words uttered by him. The first inquiry always ought to be, is the import and meaning of the words slanderous? If it be answered affirmatively, the malicious motive will be inferred; but if negatively, no bad motives will aid the action.

*477The only-inquiry as to the corrupt motive, is, whether the false oath was taken knowingly, and wilfully; if it was, the corrupt motive is implied in law. (2 Chitty$83.)

Thata perjury may-be.committed in a. collateral matter. foreigmto the issue, then trying, is -, established; in 1 Murphi 124.;.

2mlly, Because the. charge upon the.plea of,¡justification, directed the attention of ¡the. jury to. the inquiry, whether in the- false .oath- relative*to the compass,. hp-intended-¡to strengthen, his-oath upon.tbe main point in controversy; whereas, the only inquiry which they, could;make wag, whether the false oath-wag. wilfully and knowingly taken.,.

The opinion, of the.court was delivered by

Henderson, Judge.

Three reasons are assigned,upon- the record-wherefore there, should be a new trial. We can only notice-thefirst and third, the second being, for. errpr in fact. The reason .first assigned, is,,that the- Judge erred in. instructing the jury, that if they, believed it was-the indention of. the defendant to charge the plaintiff .with perjury-, &c.; that he.ought to have instructed them, that.if;they believed that the defendant meant ¡to .charge the plaintiff with-per, jury, then-, ,&c. The difference is.scarcely perceptible.. In fact,-., I think- there, is none.. But-take it ¡as -the.defendant would have us,.viz. that the jury understood fromitj that slander, consisted-in the intent to utter slanderpus words; althougfiihe- words might: not-be understood,-by-the hyp, standees (which is a,very forced interpretation..) This definition is abundantly- corrected-by the. other,parts of the charge, for, throughout he refers the slander* to the intent of the speaker,. and ¡the understan d ing, of the. hearers,. But .upon the words-thenjsel ves, tile defen d ant ’scon st rue - tion is not warranted, There is no substantial difference between: intending to..-charge, and meaning, to charge. The latter word is not¡more referable. to, .the. hearer; than tbo-former.- They both refer to. the-speaker, and .* it- wa-g *478as to liis intent or meaning that the Judge was then call-^ne Mention of the jury.

Upon the third reason, I think the plaintiff, and not the defendant has ground of complaint. Upon this poirttthe Judge informed the jury, that a witness could as well be guilty of perjury in a matter that was collateral to the main point, as on the main point itself; that if he swore falsely in a collateral matter, with an intent to confirm and strengthen his evidence upon the main point, it was perjury, if done knowingly; that if the defendant had satisfied them, that the plaintiff, in that part of his oath relative to the compass and survey, liad sworn falsely, knowingly, with such intention of thereby giving greater effect to his oath as to the main point, that it would be a complete justification; but if in taking such oath, he was influenced by no such corrupt motive, (to wit, that of giving greater credit to his false oath on the main point,) it did' not amount to perjury. The intent to prop the false oath on the main point, and not the materiality of the fact sworn to, is made the essence of the crime of perjury. Perjury is an offence against the due administration of justice. The false oath must be material to the point about which the oath is taken; if believed, it must prevent the due administration of justice; it must either be to the very fact in issue, orto some fact relevant thereto, that is, to some fact from which the jury may lawfully infer the fact in issue. And this relevancy is matter of law; the inference is matter of fact. Whether the survey was made, and whose compass was used, was neither the fact in issue, or relevanfthcreto, whether the.witness gave his evidence with an extraordinary grave and solemn countenance with intent to strengthen his evidence upon* the point in issue, could justas well bo assigned as a perjury; (6 East Rep.) as his statement of facts was totally immaterial, and the facts might or might nut exist; without at all effecting the question in dispute. The reasoning of Judge Uocke., in delivering the opinion of the late Superior *479Court in the case of the State v. Street, (1 Mur. Rep.) contains principlessimilarto those contained in thecharge ,. , . * ■ . , _ ' ot the presiding Judge. I think them dangerous, and destructive of the land marks of our law, and thereby ren-deping the judiciary arbitrary. Had the plaintifi asked for a new' trial, he should have had it.

Judgment affirmed.