Woodworth, J.
delivered the opinion of the Court. The verdict and judgment having been entered on the third count only, the first question is, whether it contains a good cause of action. It will be admitted, that the words of themselves are not actionable ; swearing to a lie does not necessarily imply that the party has, in judgment of law, perjured himself. (Hopkins v. Beedle, 1 Caines, 347.) In order to sustain an action on the words charged, it is necessary there should be a colloquium, referring to the extrinsic circumstances, in relation to which the words were spoken. (1 Chitty’s Pl. 382. 6 Term Rep. 691. 8 East, 430.) In the present case, it will be seen, that in the first count, the averment is, that the words were spoken of and concerning the plaintiff, and of and concerning the trial and the evidence given by the plaintiff in that cause: These averments are sufficient to show the application of the words, and being applied to the evidence given, the count contains a good cause of action.
The third count contains in substance the same averments, not by giving the title of the cause, and stating so particularly as in the first count, but with equal certainty, by referring to the preceding parts of the declaration. It charges, that the defendant published the words of the plaintiff, and of and concerning the action tried as aforesaid, and of and concerning the evidence of the plaintiff given on the sa%d trial as aforesaid i Now, as this reference cannot be mistaken, if the preceding counts are sufficient, it follows that the third count is not defective : The finding of the jury on the 1st, 2d, and 4th counts for the defendant, throws no impediment in the way; it has no connexion with the question We are considering; it is enough, that the whole declaration is before us, and that the plaintiff may refer to preceding parts in support of the third count.
The next inquiry is, whether thát part of the evidence .given by the plaintiif relating to the distance, and to which *349ihe words spoken by the defendant refer, was material. If the defendant had said, “ the plaintiff has sworn to a lie,” in reference to her testimony, and added nothing more, the words would apply to the evidence generally; and, if any pari had been material, this action would be sustained. But it turns out in proof, that the defendant did not speak of the whole evidence given as false, but merely of that part which related to the distance; it therefore became necessary for the plaintiff to show, that this was material on the trial. If it has not been done, the plaintiff has not laid a foundation for a recovery, inasmuch as the evidence averred to be false, is not shown to he material. On the trial of this cause, it was competent to either party to inquire, in reference to what pari of the evidence given the words were spoken, and if it appeared they were spoken of evidence entirely immaterial, the plaintiff cannot recover. This doctrine is fully recognised in Chapman v. Smith, (13 Johns. Rep. 81.) The material fact to which the witness testified, was the injury done to the steer by the defendant’s dog. The distance merely, from the house to the comer where the injury was done, could not be material. The charge is not that the witness testified falsely as to worrying the steer, or that there were such obstructions in the way that the witness could not have seen, but is confined singly to the distance, which the witness thought was thirty or forty rods. I do not perceive the materiality of this part of the testimony. The witness stated, that she saw the dog attack the steer; she was farther questioned as to the place where she was standing at the time. Her answer may be considered material, so far as it goes to support the principal fact proved. If the witness testified that she was standing at a place within view, this would be in support of the principal fact, and consequently material; but here the charge has reference solely to the computation of distance made by the witness; whether true or false, it did not affect the question then on trial. The witness said there were no obstructions in the way; this also may be considéred material, bt ause it is somewhat in corroboration of the evidence given a-, to the plaintiff’s injury, by showing that the witness was ■ a situation to see distinctly what took place. A ch;uj|^o f9jse swearing, in this *350respect, would be actionable. Admitting the distance to be one hundred and six rods, and that the witness said thirty or forty, the distance, in either case, would not prevent a distinct view; perhaps, in the one case, the marks of the steer, or the degree of injury, might be more perceptible than in the other; but to these her testimony did not refer. She stated that she saw the dog worry the steer; whether the distance was thirty or one hundred and six rods, she might with equal certainty, prove that fact. Beyond all doubt, any credible witness standing at the distance of one hundred rods, and testifying to the principal fact, as the plaintiff has done, would be entitled to belief. If this be correct, then it follows, that stating the distance to be thirty rods, cannot be material; the witness was sufficiently near to observe all that she has stated. On a review of the whole case, it does not appear, thpt the defendant charged the plaintiff with swearing falsely, as to a fact material to the issue on trial, and consequently the words are not actionable.
The exception to the opinion of the Court below, in refusing a nonsuit, was well taken. It becomes unnecessary to examine, whether the words spoken were true. The crime of perjury is not imputed. It very satisfactorily appears, that none was committed. No criminality attached to the plaintiff, for the mistake as xo the distance; it w^ts opinion merely, and that given with some hesitation. The witness did not profess to speak with certainty ; she said she knew nothing of distances. According to the view I have taken of this cause, the charge of the Court was incorrect; and the judgment ought to be reversed, and a venire de novo awarded, returnable before the Court below.
Judgment reversed, accordingly.