Ross v. Rouse , 1 Wend. 475 ( 1828 )

By the Court,

Sutherland, J.

The words proved were, substantially, that the plaintiff had sworn falsely upon the trial before the arbitrators. These words are not actionable in themselves. A witness may swear' falsely without committing perjury. If the whole testimony given upon that trial by the plaintiff, was immaterial, then no action can be sustained against the defendant for having said it was false. The evidence alleged to have been false, must be shown to have been material. (Hopkins v. Beedle, 1 Caines, 347. Chapman v. Smith, 13 Johns. R. 81. Crookshank v. Gray, 20 Johns. R. 344.) Henry A. Wisner testified, that he was the attorney and counsel for Ross upon the arbitration between him and Timothy Rouse ; that the sole matter in dispute between the parties before the arbitrators, was as to the extent of the privileges which Ross was entitled to under a written and sealed agreement between him and Rouse, in a house and farm which he bad then recently sold to Rouse; and that the testimony of the plaintiff, Anthony Rouse, which the defendant declared was false, related exclusively to the conversations between the parties before the written agreement was executed; that the testimony was objected to at the time as improper, and the arbitrators admitted that it was illegal and improper, but said they would hear the whole story.

There is nothing to contradict or impeach the testimony of Mr. Wisner. The fact, that the submission to the arbitrators did not, in terms, confine them to a determination of the rights of the parties under the sealed contract, is not material. Wisner swears positively that the extent of Ross’ privileges, under that contract, was the only matter in dispute before the arbitrators. If so, then the testimony of the plaintiff was entirely immaterial; and though admitted by the arbitrators, ought not to have had, and evidently had not, any influence upon their determination of the cause. The judge, however, ruled, that as the arbitrators permitted the testimony to be given, although they declared it was immaterial, and as the witness testified under the sanction of an oath, and under the belief .that he was giving material testimony, required by the arbitrators, the words spoken by the defendant in relation to that testimony, were actionable.

The test is not whether the witness believes his testimony to be material; but whether, if false, he can be indicted for perjury. If it is in fact immaterial, whatever may .be the opinion of the witness, though it be falseáis not perjury. The charge was erroneous, and a new trial must be granted.

New trial granted.