#### JESSE P. GODETTE v. S. B. GASKILL.

(Filed 22 September, 1909.)

Witnesses — False Testimony — Damages.

A witness is not liable for damages for alleged willful and false testimony given by bim in a former case, upon tbe ground that by reason thereof the plaintiff had lost his suit in the former action. Such action would not lie at common law, and there is no statute authorizing it.

Appeal by plaintiff from O. E. Allen, J., November Term, 1908, of GRAVEN.

W. D. Mclver and R. A. Nunn for appellant.

No counsel contra.

*53Clark, C. J.

Tbis is an action for damages against tbe defendant for willful and false testimony as witness in an action formerly tried, wbicb bad been brought by tbe plaintiff against one Eowen, alleging that by reason of such false testimony of tbe defendant tbe plaintiff bad lost bis suit against Bowen.

There is no precedent in tbis State, but an action on tbis ground has been brought in other jurisdictions, wbicb have uniformly held that such actions cannot be maintained. It was so held as far back as Damport v. Sympson, Cro., Eliz., 220, and Eyres v. Sedgewick, Cro., Jac., 160. Subsequently a statute was enacted authorizing such action in certain cases, but even that statute, it seems, is now deemed obsolete in England.

It was held that such action does not lie. Dunlap v. Glidden, 31 Me., 439; Phelps v. Stearns, 70 Mass., 106; Cunningham v. Brown, 18 Vt., 126; Bostwick v. Lewis, 2 Day (Conn.), 456; Smith v. Lewis, 3 Johns (N. Y.), 165, 169; Grove v. Brandenburg, 7 Blackf. (Ind.), 235. And this is true of subornation of perjury. Taylor v. Bidwell, 65 Cal., 490; 1 Cyc., 687; 22 A. & E., 698. Rice v. Coolidge, 121 Mass., 393, bolds that one not a party to tbe action in wbicb tbe perjury was committed may maintain an action for tort against one who suborned witnesses to swear falsely in that action, whereby plaintiff’s character was defamed.

Tbe authorities above cited rest upon two grounds: (1) There was no precedent for such action, and, indeed, tbe precedents were against it. (2) It “would overbale,” as Chancellor Kent says, in 3 Johns, 166, tbe decision of tbe former case, to which, tbe plaintiff in tbe new action bad been a party. We think there is a third reason, in that it would multiply and extend litigation if tbe matter could be re-examined by a new action between a party to tbe action and a witness therein; and, more than that, witnesses would be intimidated if their testimony is given under liability of themselves being subjected to tbe expense and annoyance of being sued by any party to tbe action to whom their testimony might not be agreeable. It would give a great leverage to litigants to intimidate witnesses.

Witnesses who swear falsely are liable to indictment. It is not to be contemplated that grand juries shall willfully and oppressively find indictments; but if a civil action lay in such cases, a litigant smarting under tbe loss of bis suit could subject witnesses to tbe annoyance and expense of litigation at will. Such action did not lay at common law, and we have no statute authorizing it.

Tbe judgment of nonsuit is

Affirmed.