delivered the opinion of the Court.
As to the first assignment, the defendant pleadAnot guilty to the third count, and issue was joined thereon. The plea in abatement was, there'fore, properly considered as a nullity, and the defendant in the action has no grounds to complain, that the plea in abatement and the demurrer thereto, were not noticed or disposed of; for on his plea of not guilty, the case appears to have been tried on its merits.
As to the second assignment and bill of exceptions, the words stated in the first and second counts make a positive and direct charge of perjury, and stand in no need of a colloquium or inuendo. The words proved are different in their imports, and do not convey the legal idea of perjury, nor could they without explanation, form the foundation of an action. To say that the plaintiff swore to falsities before a justice, imputes no crime, technically speaking, and is very different from saying she had wilfully and corruptly perjured herself.
The words proved, did not support the first and second counts in the declaration.
The words proved in support of the third count, did not make a direct charge of larceny, and were equally insufficient to sustain that count. The judgement of the Circuit Court must be reversed. The cause will he remanded if the counsel for the defendants in error think that on a new trial, the proof will better conform to the charges made in the declaration.
Judge Crenshaw not sitting.Reversed and remanded.