Majority
p. 621* Graham against Woodhull
Headnote
in slander, for saying of the plaintiff that he was peijured, and a particular perjury pleaded in justification, the court will, on affidavit of the ab-senco of the witness by whom it was to be proved, give leave to amend by pleading another perjury, on payment of costs.This was an action brought against the defendant for saying that the plaintiff had been guilty of perjury. To this the defendant had pleaded the general issue, and a jus
p. 622moved for liberty to plead another plea, or to give notice of special matter, to be given in evidence on the general issue, in addition to the pleas already pleaded. The application was founded on an affidavit stating the above facts, and also that the pleas were delivered in August last, and issue soon after joined; that at the time of pleading the above pleas, one Gfleeson, who could have proved the truth of the above justification, was in New York, or its vicinity, and the defendant relied on being able to produce him at the trial; but, that since that time, G'leeson had quitted this state, and was gone, the defendant knew not whither; that the charge of perjury was true, and that, under the idea of being able to have the benefit of G-leeson’s evidence, the defendant had not given notice of justifying by proof of another perjury by the plaintiff before the recorder of New York, on an application for relief under the insolvent law. The defendant’s plea of justification is confined to that before the master. The other may, even allowing it to be true, have taken place long since. The question, therefore, is, whether the court will allow a subsequent perjury, admitting it to have been committed, to justify a former charge of perjury. This is an action of slander, and out of the general rule of amending and ad ding pleas. The declaration is general; and, foi ¿my thing that appears, both perjuries might have- preceded the action, nay, contemporaneous, as they might be in relation to the same discharge. We only ask to amend on the usual terms of paying costs.
tification, setting forth a particular perjury committed in an examination before Thomas Cooper, Esq. one of the masters in chancery.
Hoffman
Bogert, contra.
Hoffman, in reply.
p. 623
After some little conversation on the bench, in which it was conceived this practice might possibly lead to hunting for instances of perjury, the court granted the motion, on ^payment of costs, saying they could not [*498] make any distinction between actions of slander and other cases.[1]
Motion granted.
[1] [1] See Lent v. Butler, 3 Cow. 370 ; Williams v. Cooper, 1 Hill, 637 .