¶1Lennenwas the plaintiff below, and Whitsel, the defendant. The complaint charges, substantially, that on, &c., at, &c., a certain writ for the assessment of damages, was in the hands of Jacob B. Locke, the sheriff: of Hamilton county, upon which the sheriff, as commanded by said writ, on the 26th of March, 1855, impanneled a jury and proceeded to trial, under said writ, in due form, &c.; that the plaintiff was duly sworn, on said trial, as a witness, and was then and there examined, and gave his evidence as a witness on the same trial. And that defendant contriving, &c., on, &c., at, &c., in a certain discourse, &c., falsely and maliciously spoke and published of and concerning the plaintiff, and of and concerning said trial, and of and concerning .the evidence so given by the plaintiff on said trial, these false, malicious, and defamatory words, to-wit: You, meaning the plaintiff, swore a damned lie; and I, meaning the defendant, can prove it, &c. Damages are laid at 5,000 dollars.
¶2Defendant demurred to the complaint; but his demurrer was overruled; and thereupon he answered. Verdict for the plaintiff. New trial refused, and judgment rendered.
¶3In support of the demurrer, it is insisted that the complaint is defective, because it does not allege that the evidence given by the plaintiff was material to the issue.
¶4In Wilson v. Harding, 2 Blackf. 241, the Court say: “ Where there has been a trial before a competent tribunal, it will be presumed that the testimony given on that trial was material. To charge a man with perjury, in reference to a trial where perjury might be committed, is actionable.”
¶5This is, no doubt, a correct exposition of the law, and when applied to the point under consideration, at once shows that the ground assumed in favor of the demurrer, is not well taken.
¶6The judgment is affirmed with 10 per cent, damages and costs.