By the Court,
Marcy, J.If the plaintiff was under oath at the time the defendant uttered the words set forth in the declaration, and was then testifying in a pending cause, they are actionable, unless it should appear that the matter about which he was giving testimony was immaterial to the issue to be tried when the oath was administered to him.
Two questions are presented for our consideration: First, Did the second instrument create a new cause, or so much so that it became necessary again to swear the witnesses who had been sworn on the first meeting of the arbitrators % Secondly, If this was not so, and the second instrument made matters material that were not embraced in the first submission, would a witness be guilty of perjury if he wittingly misstated to the arbitrators facts material under the second instrument, but which were not so at the time the oath was administered to him ? .
The words spoken by the defendant are not per se actionable, but they are made so by certain circumstances: the pendency of a cause before the arbitrators, the oath taken by the plaintiff as a witness in that cause, and his examination as such witness. These circumstances the plaintiff must aver in his declaration and prove, as was decided in this very cause when it was formerly before this court. (9 Cowen, 30.) The pleadings do not accompany the case, but it was said on the argument that the declaration stated the arbitration to be pending between Nathaniel Payne and Thomas Thompson. This I presume, is correct; for if it had been otherwise, there would have been a fatal variance in relation to the proof concerning the oath taken by the witness. When he was sworn to testify, they were the only parties to the *535issue, and there could not have been at that time any pretence that there was any other party. But it is said that when the plaintiff did testify to what the defendant alleged to be a lie, the parties were Nathaniel Payne, Thomas Thompson and Calvin Thompson. Whether this be so or not, must be determined by the inspection of the second instrument.
A question arose as to what was included in the first submission. The extent of what Thomas Thompson contended for was that such part of the private account of Calvin Thompson against Payne as he had paid at Payne’s request and with his assent, was within the first submission. But it will be perceived that the second instrument embraces much more than the matter involved in this dispute. It includes the whole of Calvin Thompson’s account against Payne, whether it had been paid by Thomas Thompson or not. Furthermore, it embraces Payne’s account against Calvin Thompson, which was certainly in no way in dispute, and by no possible construction could have been brought within the first submission. By the last instrument the arbitrators had power to bind both Payne and Calvin Thompson as to their respectice private accounts, and the award was to be a perpetual bar of all claims and demands of each against the other; no such matter was included within the scope of the first submission. The fact cannot be controverted that the instrument of the 15th March, 1826, brought new matters before the abitrators, subjected to their power another person, and enlarged that which they had over the former parties. These are strong facts to show that the new instrument was more than a modification of the original submission.
If the arbitrators, acting under the powers given to them by both instruments had awarded a large sum to be paid by Payne, would his sureties, Carmichael and Koon, have been bound by the award ? I apprehend not. They could have said in exoneration of themselves, that the arbitrators had passed upon matters not contained in the submission to which they had become parties or sureties. Had Payne revoked the powers of the arbitrators, on which instrument would he have, been liable? The last clause in the second instrument does not, by the natural imjfort of its language, refer to the *536additional powers conferred thereby, but to the general authority of the arbitrators. If Calvin Thompson ha^d revoked, could the arbitrators have properly entertained jurisdiction over him, or awarded on his account or on Payne’s account against him ? On this question I think there can be no doubt, and it is very difficult to see how he could derive power to control or affect the proceedings of the arbitrators, unless he was a party to the submission.
Again: it is a general principle that those only who are parties to the submission shall be bound by the award. (Kyd on Awards, 42.) Will it be seriously urged that Calvin Thompson was not bound by the award 1 He agreed to submit his accounts against Payne, and engaged, under his hand and seal that the award should be a perpetual bar to them. If it had not .been the intention of Payne and Thomas Thompson to bind him, and if they had not supposed' that they had done enough to bind him, they would not have estimated the damages they might suffer by a revocation of the powers he had given to the arbitrators at five hundred dollars, and exacted of him a covenant to pay that sum. In any point of view in which the case can be presented, Calvin Thompson appears to be a party to the submission. The accession of an entire new party, and the addition of new matters of dispute, made a new submission. My opinion is that when the plaintiff was examined before the arbitrators the last time, it was in a different cause from that in which he was sworn and examined the first time, and when the defendant made the charge against him he was not under the .obligation of the oath he had formerly taken.
My views on this point render it unnecessary to examine the question whether if the parties enlarged the powers of the arbitrators after a witness had been sworn, and thereby made that material which was not so when the oath was taken, he .could be convicted of perjury in relation to what was rendered material after the oath was administered to him. I am inclined to think that in testing the materiality of whdt a witness swears to, reference should be had only to the issue as it was when the .oath was administered.
Judgment for defendant.