Majority
p. 140Dayton vs. Rockwell.
Headnote
Words charging a party with swearing false, in an affiadavit made to obtain a warrant from a justice, are actionable, if the affidavit contain any material fact proper to be submitted to the justice on such application, although on certiorari the affidavit would not be held sufficient to justify the issuing of the warrant.
p. 142
Demurrer to declaration. The action is slander. The plaintiff, in the first count, stated by way of inducement that one Silas Butler, an inhabitant of Hadley, having a family, being indebted to him in a sum of money, and he, the plaintiff, being in danger of losing the same, and having a good cause of action against Butler, did make and subscribe an affidavit or oath before S. Gray, Esq., a justice of the peace of Hadley, who had lawful authority and full power to administer an oath in the premises, and did administer the same to the plaintiff on the said affidavit, to wit, on the 17th January, 1831, at Hadley, as authorized by the 4th sub. § 17, art. 2, tit. 4, part 3, of the revised statutes, in which the plaintiff swore, among other things, that he had good cause of action against Butler, and thereupon, the justice issued a warrant in favor of the plaintiff against Butler, according to sub. 4, § 17, aforesaid; and such proceedings were thereupon had before the said justice, that a judgment was rendered by him against Butler. Yet the defendant, knowing the premises, but intending to injure the plaintiff in his good name, &c., afterwards, to wit, on &c. at, &c. in a certain discourse which he had with the plaintiff, and of and con-cerning the plaintiff and of *and concerning the said affidavit, spoke these words : “ You swore false about that judgment you got against Butler ; you swore out a warrant against Butler, in a concern you had got your pay on before, for the purpose of cheating me out pf what I had against Butler.” The second count lays the words as spoken in the second person, he swore false, fyc. The third count contains the same matter of inducement as the first; it sets forth the affidavit, made by the plaintiff, in these words : “ Sara-toga county, ss. Orange Dayton of Hadley, in said county, being duly sworn, says, he has a good cause of action against Silas Butler, against whom he now makes application for process by warrant, and the ground of such application is, that he cannot safely proceed by summonsand then charges the speaking of the words as in the first count. The fourth count is like the third, referring to the affidavit, and laying the words as spoken in the third person. To each count the defendant put in a general demurrer.
J. Ellsworth, for the defendant,
insisted that the affidavit, concerning which the words were spoken, not being such an affidavit as would justify the issuing of a warrant, was not an oath or affirmation necessary for the prosecution of a private right, and therefore purjury could not be assigned upon it.
C. P. Kirkland, for the plaintiff.
By the Court,
The defendant relies upon the point, that the affidavit upon which the charge of perjury is founded not being drawn pursuant to the statute, is not such a material or necessary proceeding as to be the subject of perjury. By the revised statutes, persons shall be adjudged guilty of perjury, as follows : Every person who shall wilfully and corruptly swear, testify or affirm falsely, to any material matter upon any oath, affirmation or declaration legally administered, 1. In any matter, cause or proceeding depending in any court of law or equity, or before any officer thereof; 2. In any case where an oath or affirmation is required by law, or is necessary for the prosecution or defence of any private right, or for the ends of public justice ; 3. In any matter or proceeding *before any tribunal or officer created by the constitution or by-law, or where any oath ma)r be lawfully required by any judicial, executive or administrative officer. By the article which treats of the commencement of suits, and the service and return of process in justices’ courts, the justice is authorized to issue a warrant, 1. When the defendant is a non-resident of the county; 2. When the plaintiff is a non-resident, and tenders security for any sum which may be adjudged against him; 3. Where it shall appear to the satisfaction of
p. 143
the justice by the affidavit of the applicant or of any other witness, that the person against whom such warrant is desired, is about to depart from the county with intent not to return thereto; and 4. Where the defendant is an inhabitant of the county, having a family, or a freeholder of the same county, and it shall in like manner appear, to the satisfaction of the justice, that the plaintiff will be in danger of losing his debt or demand unless such warrant be granted. 2 R. S. 228, § 17. The 19th section also declares that in the cases last mentioned, the person applying for a warrant, shall, by affidavit, state the facts and circumstances within his knowlege, showing the grounds of his application, whereby a justice may the better judge of the necessity and propriety of issuing such warrant. This was clearly a case where an affidavit was required by law for the prosecution of a private right, and where of course, if the party making the affidavit swore falsely, he would be guilty of perjury, if the facts sworn to were material. Among the facts and circumstances necessary to enable the justice to determine whether a warrant should be issued, it was very material for the justice to know whether the plaintiff had any cause of action against the defendant which was cognizable in a justice’s court. The affidavit asserts that fact; and should the plaintiff be indicted for perjury, and the fact thus sworn to disproved by sufficient testimony, he would undoubtedly be convicted. The question then would be, not whether the affidavit was sufficient to authorize the justice regularly to issue a warrant; not whether the proceedings of the justice were regular, but whether the fact sworn to was material. Had the affidavit contained the facts that Silas Butler was about to leave the county, not to *return, or any other facts and circumstances (not the opinion of the plaintiff) showing that the plaintiff would be in danger of losing his debt or demand unless a warrant should be granted, there could be no doubt of the materiality of the whole affidavit. But the materiality of each fact must be judged of by itself, not by its connection with other facts ; the proceedings of the justice might perhaps be set aside, because the affidavit did not contain sufficient facts and circumstances to authorize the issuing of the warrant, but still the party making the affidavit would be responsible for any wilful falsehood contained in it which was material. The affidavit was made before an officer authorized by law to administer the oath, and in a proceeding where the fact sworn to was material; and if false, the crime of perjury was committed. In this view of the subject, the several counts of the declaration are good, and the demurrer cannot be sustained.
Judgment for plaintiff on demurrer, with leave to defendant to plead on payment of costs.