¶1This case came up on error to the district court for Milwaukee county, on a judgment given on a trial at the June term of this year.
¶2The slander complained of by the plaintiff and charged against the defendant (although stated in all the modes and changes in which such matters may be set out in a declaration), was substantially that the defendant had charged the plaintiff with false swearing as a witness in the trial of a cause before a justice of the peace. The proof was, that “in October, 1852, the said defendant (referring to a trial before had before one Messenger, a justice of the peace, in which said Rowe was plaintiff, and the said Yliet defendant, in regard to some mill-irons and an account), the said defendant, in the presence and hearing of the witness and others, said to the said plaintiff: “ You swore to a lie in the suit before Messenger, and I can prove it by Esquire Prentiss; you swore false, and I can prove it.” It was further proved “ that on 14th of August, 1840, a cause was tried before Johu A. Messenger, a justice of the peace, in an action of assumpsit, in which the said Rowe was plaintiff, and the said Yliet was defendant, upon which trial the said Yliet was called upon by the said Rowe to testify, and was thereupon sworn as a witness in the cause, and did give evidence, and that something was said on that trial about an account and mill-irons.” Accompanying the general issue, was a notice to the plaintiff by the defendant, “that he would on the trial, give in evidence and insist that the said plaintiff, in giving his testimony on said trial before Messenger, had committed willful and *416corrupt perjury.” Under this notice the defendant gave no evidence, and the cause here resting, the court charged the jury as follows : “ That by the aid of the colloquium and averments in the declaration, the words “you have sworn to a lie, and I can prove it,” or “you have sworn false, and I can prove it,” became actionable. These words are not per se actionable; hence it becomes necessary to make out the case by necessary proof. It must appear on the trial, that a trial was had as set forth in the declaration, and that the plaintiff there testified or gave evidence material to that issue. In this case there is no evidence of the materiality of the evidence given by the plaintiff on that trial. The materiality of the testimony given by the plaintiff on the former trial is a matter of law for the court to determine. A notice of special matter is in ease of the defendant, and he can use it or not as he pleases. He may or may not rely upon it. It is not an admission of the matter charged in the declaration. The plaintiff is bound to prove the facts set forth in his declaration, or the facts necessary to make out his case, notwithstanding the notice filed. It is not a special plea that confesses and avoids. A notice when relied upon precludes all such evidence in mere mitigation as goes to repel the inference of malice, or relates to the manner and occasion of the speaking. A plea or’ notice relied upon, admits the malice and is properly to be used in aggravation.” The jury found a verdict for the defendant, and the plaintiff excepted to the charge of the court, the correctness or incorrectness of which is now the matter of inquiry, and more particularly that portion of it which declares it in this case incumbent on the plaintiff to prove the materiality of the evidence given by himself on the trial, at which the false swearing is alleged to have been done.
¶3The charge of perjury is per se actionable, because it directly imports a crime for which a man may be punished. This proposition is so well established as to *417make a reference to authorities in its support wholly unnecessary.
¶4The charge of false swearing (although in. common acceptation tantamount to a charge of perjury) is not actionable per se, but only becomes so by force of attendant circumstances. Perjury can only be committed by swearing falsely before a competent tribunal, and to matter material to the issue as that would imply the malice necessary to constitute the crime, but to swear falsely to matter not material (although highly reprehensible in a moral point of view), would be held to be an idle and foolish act, but wholly destitute of that ingredient (malice) so necessary to constitute the crime of perjury. And inasmuch as it is a principle of law, weE established, that a plaintiff must make out his whole cause of action, and regarding this as a necessary part of the plaintiff’s action in this case, it was incumbent on him to prove that the swearing alleged to have been false, was material to the trial in which it was done, and of the materiality of which the court was to determine. Vaughan v. Havens, 8 Johns. 109; Thompson v. Lusk, 2 Watts, 17; Chapman v. Smith, 13 Johns. 78; Power v. Price, 12 Wend. 500; Hopkins v. Beedle, 1 Caines, 347; McKinley v. Rob, 20 Johns. 357; Ross v. Rouse, 1 Wend. 475.
¶5When we examine the evidence adduced in the district court by the plaintiff, in support of the charge of false swearing, we fuEy concur with that court, that there was no evidence of the materiaEty bf the testimony given on the trial before the justice of the peace. We also concur in the correctness of the balance of the charge, and affirm the judgment with costs.