Hutchins v. Blood — 25 Wend. 412

Majority

p. 315

*Hutchins vs. Blood.

Headnote

In slander, for charging a party with false swearing as a witness in a cause, it is not necessary, to render the charge actionable, that the evidence in respect to which the charge is made, should be so material as to establish the action or the defence; it is enough if it form a material circumstance in the chain of testimony.

Error from the Onondaga 0. P. Blood sued Hutchins in slander, for charging him with swearing false as a witness in a suit prosecuted by Hutchins against one Way, in a justice’s court. The action was for work and labor, to which Way had pleaded the general issue. Blood testified that Hutchins told him that he was doing work for Way, who wished him to take his pay out of his (Blood’s) store ; that he, the witness, subsequently spoke to Way on the subject, who agreed to pay him. That he, however had given no credit to Hutchins on his books, or made any charge against Way, not knowing the amount of Hutchins’ demand ; and that subsequently Hutchins told him that he would not make the turn. He further testified that a night or two be

p. 316

fore the trial, Hutchins admitted to him that he had agreed to make the turn, but would not make it, as Way had refused his order. When Blood had thus testified, Hutchins said “ that is falseand for the speaking of those words, the action was brought. On these facts beings^hewn the plaintiff rested, and the defendant moved for a non-suit, on the ground that the evidence given by Blood was not material to the issue on trial; which motion was overruled by the court. The counsel for the defendant then requested the court to charge the jury, that as the plea in the cause of Hutchins against Way was simply the general issue, and the evidence of Blood did not prove a payment, such evidence was not material to the issue then on trial, and the plaintiff in this action was therefore not entitled to recover. The court refused so to charge, and on the contrary instructed the jury that the evidence was material: to which charge the defendant excepted. The jury found a verdict for the plaintiff, upon which judgment was entered. The defendant sued out a writ of error.

*J. R. Lawrence, for the plaintiff in error.

D. Pratt, for the defendant in error.

By the Court,

The suit before the justice involved the question of payment by the defendant, or at least an agreement on the part of the plaintiff, to receive it in a particular way, for the work or labor done ; either of which would have constituted a good defence, and the testimony of Blood tended, directly, to establish the fact. It is quite clear that it is not necessary to shew to what particular degree the point in respect to which a party is charged with false swearing, was material to the issue ; it is sufficient if it be circumstantially material. Still less is it ne.c.essary that the testimony should be full to establish the issue on one side or the other, to make it material; it may be indispensable in the course of the trial, and still fall far short of establishing the issue. If it goes to prove a material circumstance, or link in the chain of evidence making out a cause of action, or defence, it is sufficient to predicate perjury upon. 2 Russell on Crimes, 522. And within this rule the judgment of the court below was clearly right.

Judgment affirmed.