Opinion of the court delivered by

Was the above charge correct? We are of opinion it was. The words spoken, and which are repeated in the plea and averred to be true, is an accusation of perjury. If it had been in an indictment, that accusation could have been no stronger.

What is the difference between an accusation made by an individual, and one for the same matter made by the state? The only difference is in the consequences; the state, if she accuse and sustain her accusation, inflicts punishment; an individual, if he accuse and sustain the accusation of record, fixes upon the accused the deepest stain, and makes the evidence of it accessible to all the community.

What is the issue to be tried? not the speaking of the words, for the speaking is admitted by the plea, but the fact, has the party accused been guilty of perjury? To prove or fix the charge upon the plaintiff in a civil case, should require the same quantum of proof which would be required to convict him upon a criminal prosecution.

The record evidence of a suit with the averment of an oath having been taken falsely in that suit, is as much before the jury in the civil action as on the indictment, so is the fact of oath against oath, and therefore the rule of evidence to bring out the fact of perjury must be the same in both cases.

The analogies of law certainly make it so, and we believe that the authorities are express upon the point. 2 Starkie 878, 879: Phil. Ev. 112 113.

Judgment affirmed.(a)