Wolbrecht v. Baumgarten

Breese, J. Although there might be a case where this court would set aside a third verdict as being entirely without evidence to support it, or for a gross misdirection of the court as to the law, we do not think this is such a case. We do not discover any error "in law, and as to the evidence, though not entirely satisfactory, it is sufficient to sustain the verdict. It may be questionable whether the defendant in charging the plaintiff with swearing to a lie particularized with sufficient distinctness in what part of the evidence the perjury was committed. One witness states it in one way, and another, another way, and it was fairly left to the jury to decide it. If in speaking in reference to a judicial proceeding, in which a plaintiff was a witness, a defendant should charge him with swearing to a lie, the case would be made out, though it might not appear that the person speaking- the words, alluded to any particular part of the evidence. If it be insisted on the defense, that the words were spoken of a portion of the evidence, not material,-it would be for him to show it. Without all the evidence given before the justice of the peace was before us, we could not say that this detached portion of it was, or was not material. The doctrine is, that a declaration for slander need not aver that the evidence given by the plain-* tiff on the trial was material; especially is it so, where the words are actionable per se, as in this case, under our statute. They are made actionable by our statute, even if spoken without reference to a judicial proceeding. If then, it be thought the evidence was not material, and the plaintiff is not obliged to allege in his declaration that it was material, it follows, for the defendant to avail of it, that he must show it by way of defense. The case must be a- very strong one for a defendant where this court would interfere to set aside a third verdict on grounds such as here set up, especially when the two preceding verdicts were in favor of the plaintiff. The judgment must be affirmed. Judgment affirmed.