Cook vs. Bostwick, 12 Wend. 48

By the Court, Savage, Ch. J. The judge was right in submitting to the jury to determine in what sense the words were spoken. If spoken with a malicious intent, and with the view to defame, they were actionable. The jury have found that they were so spoken, and the verdict is sustained by the evidence. That the defendant intended to impute perjury to the plaintiff, is evinced by his declaration that he would have him indicted for perjury. The defendant ought not to be excused on the ground that perjury could not have been committed.

If, in truth, the plaintiff had not attended at Almond village as a party to a suit, he had sworn false ; if he did attend, he had sworn the truth. That could not be determined by the fact of his being arrested over the county line, though near the justice’s office. The allegation made by the defendant was, that he was not attending a suit, and it was admitted on the trial that he was so in attendance. That was the only point of the affidavit, and that was denied by the defendant when the charge of perjury was made. Had the defendant not been so attending, he was guilty of perjury. New trial denied.