It is certainly true that the plaintiff may reply nul tiel record to a plea of the pendency of another action, [1 Saund. on Plead. 18,] and such is the form of the replication to which the counsel for the plaintiff in *141error has referred in 1 Wentworth. The plea of mil tiel record, should conclude' with a verification by the record, and where the replication merely denies the existence of a record, which is relied on by the plea as a defence to the action, it should contain a similar conclusion. [2 Saund. on Plead. 754, 755; 1 Chit. Pl. 556, 557.] But where the plea contains matter of fact as well as matter of record, it should not conclude with a verification by the record, but with a verification to the country. [Id.; 1 Saund. on Pl. 18; 6 Johns. Rep. 26; 2 Id. 227.]
In the case before us, the replication does not merely put in issue the existence of a record to establish the fact relied on by the plea, but it goes beyond this, and in effect affirms that if there was another suit, the record of which would show it to be identical with the present, yet in point of fact, the causes are different. Or in other words, it is so framed as to allow the plaintiff upon the production of a record by the defendant which would support his plea, to show that the matter in controversy in the suit first instituted was not identical. That such extrinsic proof would be admissible, we think does not admit of doubt.
In Robinson v. Windham, 9 Porter’s Rep. 397, it was held that under the general issue in an action of assumpsit on a note, it was allowable for the maker to show, that the property for which the note was given was not such as the payee warranted it to be; and that in an action subsequently brought to recover' damages for a breach of the warranty, a special plea was good which alledged that the same matter had been litigated in the suit upon the note, and the judgment therein rendered, remained unreversed, or in any manner vacated. In later adjudications, we have determined that it was competent for parties to look out of the record and show by extrinsic proof that any matter within the issue was a subject of controversy. And such is unquestionably the weight of authority.
This course of reasoning indicates, that where there is a record which would establish the plea of another action pending, the plaintiff is not bound to deny its existence, but if in truth the causes are dissimilar, he should be allowed to show it. *142And to let in such proof, the' replication should be adapted to it.
It may however be supposed, that the replication should contain a new assignment of the cause of action. Where a person has two causes of action for a breach of contract, for one of which he has already obtained a judgment, and to ah action for the other the defendant pleads the judgment recovered, the plaintiff should new assign, and show that the action was brought for a different breach of contract from that for which the judgment pleaded had been obtained. In all cases, it is said, where the defendant applies his justification to a different cause of action from that to which it is applicable, the plaintiff must new assign. [6 T. Rep. 607; 3 B. & C. Rep. 235.] New assignments are also adopted for the purpose of ascertaining with greater precision and exactness, the place or time which has been alledged only generally in the declaration. [2 Saund. on Pl. 684; 1 Chit. Pl. 601, et post.] But we are not aware that the doctrine of new assignment has ever been applied to a plea in abatement, such as that we are considering. Be this however as it may, it cannot be necessary for the plaintiff to new assign, in order ta let in proof of an extrinsic fact, which does not contradict, but merely limits the operation of a record. The citations from 1 Chitty, 614-15, and 6 Johnson, Mi supra, recognize the sufficiency of such a replication. This view of the question has led us to the conclusion, that the replication is an answer to the plea, and the conclusion proper.
The demurrer to the declaration is not several, but to all the counts jointly, and if either of them was good, it was ' rightly overruled. The words charged in each count to have been spoken, are per se, actionable, and without considering whether the second and third counts contain the necessary allegations, we think the first certainly does. If it be objectionable in any thing, it is in being too verbose. There was no necessity for the declaration to alledge specifically, that the slanderous words were such as imputed the crime of perjury, according to the laws of this State. This is apparent, and such an allegation could not have made it more obvious. The false swearing which the defendant is said to have imputed to the plaintiff was, first, in deposing that he was ac*143quainted with the character of,the impeached witness, and second, in expressing the opinion that from such knowledge he was worthy of credit. If he was unacquainted with the witness’ character, it is perfectly clear that his testimony was false, and the inference would be, that it was intentionally, and of course corruptly so.
The consequence is, that the judgment must be affirmed.