Swart agt. Borst. Notice of this order was served on the defendants and on the defendants' attorney in this suit, on the same day. On the 20th day of May, 1858, this suit came on for trial on the above facts. BREWSTER & DAVIS, for defendants. HOGEBOOM, Justice. The case of Averill agt. Patterson, in the court of appeals, (10' How. Pr. Rep. 85,) decides that to effect a discontinuance, an order must be entered. Hence the first suit was not discontinued when the Schoharie circuit commenced on the 17th of May. There was nothing that I discover up to that time, which would have prevented the plaintiff from entering judgment in the first action. No answer or appearance had been put in, unless the notice of motion to set aside the judgment was an appearance. I can see no good reason for commencing the second suit. It seems to have been wholly unnecessary. The case above cited, further decides that where a plea or answer of a former suit pending is interposed, it is competent for the plaintiff to discontinue the first suit, and a replication of such discontinuance is a good answer to the plea. Assuming that this means that the plaintiff may discontinue the first suit after the commencement of the second, and after the answer is put in, which certainly allows him a great deal of latitude, inasmuch as it allows him thus to defeat a plea or answer which may have been interposed in perfect good faith, still I think the plaintiff has not taken the proper steps to enable him to avail himself of that reply to the defendants' answer. True, he was not obliged to reply—and he is permitted to occupy the same position as if he had put in a reply. But assuming that he must or may be deemed to have interposed a replication that the former suit was discontinued, has he proved it? The issue must be deemed to have been joined at the time the notice of trial was served. At that time, at all events, there was no discontinuance. Can the plaintiff discontinue at Walrath agt. Nellis. any time before the actual trial comes on, so as to defeat the defendant's answer? If so, he may wait circuit after circuit, if the cause is not reached, and ultimately enter his order just before the actual trial, and then impose all the costs upon the defendant. I think this cannot be so, I think the discontinuance must be effected at least by the time that the issue is regarded as perfected and the cause noticed for trial. This not having been done in the present case, the defendants are entitled to judgment as having sustained their plea of a former suit pending. SUPREME COURT. CHARLES WALRATH agt. ABRAHAM NELLIS. The words spoken and complained of in the action of slander in this case, were: "I would not swear to what Charles Walrath has, for the town of Palatine or county of Montgomery,-Peter J. Wagner is honestly mistaken, but Charles Walrath is wilful." Held, that no innuendo was necessary. No one could fail to be impressed with the distinction intended to be made between the two men. One was honestly mistaken in swearing, while the other had sworn wilfully, and that the whole town of Palatine, or the whole county of Montgomery, would be no consideration for such swearing. The words im-. port perjury. Schenectady General Term, January, 1859. Present, C. L. ALLEN, JAMES, ROSEKRANS and POTTER, Justices. THE Complaint avers the uttering of these words with ref erence to the plaintiff's testimony, in a suit pending before a justice of the peace, viz: "P. J. W. is honestly mistaken, but you are wilful," with similar expressions, varying the reference to the plaintiff from the second to the third person. It was distinctly alleged that "P. J. Wagner," the first individual referred to, had been a witness in the same cause, and Walrath agt. Nellis. that by this charge the defendant meant that the plaintiff was "wilful in his testimony," so rendered; and that he designed to have it understood that the plaintiff had committed perjury. The same count contains this alleged remark, made by the defendant: "I would not swear to what Charles Walrath has, for the town of Palatine, or county of Montgomery." The defendant interposed a general demurrer to this count of the complaint. H. SACIA, for plaintiff. GEO. YOST and A. BOCKES, for defendant. By the court-POTTER, Justice. If the words charged in the first count of the complaint are actionable per se, the omission in the innuendo, that the words were understood by those who heard them, in a sense to make them actionable, is entirely immaterial. This allegation is only necessary where the words are either ambiguous, ironical or insinuated. Words in the latter sense, are equally actionable as if made in direct terms; but in pleading in such cases, it is necessary to aver that the defendant, by means of the words so insinuated or so ironically or ambigu ously spoken, meant to be understood by the hearers, and was understood, as charging the plaintiff with the crime imputed. (Gibson agt. Williams, 4 Wend. 320; Andrews agt. Woodmansa, 15 Wend. 232; 5 East, 463.) In the words charged in this case, there is nothing ironical, nothing insinuated, and I can see nothing ambiguous in them, if we take them all together; and they are all charged as being spoken at the same time. The court will always hold upon demurrer in actions of slander, that words are to be understood according to their natural import and according to the ideas that they are calculated to convey to the ordinary mind. Whenever words which would otherwise be regarded as ambiguous, are accompanied with a key or explanation of the intent of the utterer, that conveys to the mind of the hearer the imputation of crime, no innuendo is necessary. As for in The People agt. Robertson. stance, to charge that the plaintiff "has sworn to a lie,” would not be actionable; but adding the key to it, "he has sworn to a lie, and done it meaningly to cut my throat," was held actionable, per se. (Coon agt. Robinson, 3 Barb. 625.) "He has sworn false," would not be actionable, but " he has sworn false to my injury six or seven hundred dollars," it was held, per COWEN, J., imputed perjury, per se. (Jacobs agt. Tyler, 3 Hill, 572.) "He has sworn false, and I will attend the grand jury respecting it," is slander per se. (Gilman agt. Lowell, 8 Wend. 573.) No innuendo in this case was necessary. The words are: "I would not swear to what Charles Walrath has, for the town of Palatine, or county of Montgomery. Peter J. Wagner is honestly mistaken, but Charles Walrath is wilful." Is there any ordinary mind that would fail to be impressed with the distinction intended to be made between the two men? One was honestly mistaken in swearing, while the other had sworn wilfully, and that the whole town of Palatine or the whole county of Montgomery, would be no consideration for such swearing. As it strikes my mind, these words import perjury, and the complaint is, therefore, good. The order of the special term should be affirmed. Order affirmed. SUPREME COURT. THE PEOPLE ex rel. FEDERAL DANA agt. JOHN ROBERTSON and others, Commissioners of highways of the town of Fenner. Where referees appointed by a county judge to hear an appeal from an order of commissioners of highways refusing to lay out a road, reverse the decision of the commissioners, and proceed to lay out the road, they must give the three days' notice to occupants required by the statute, (1 R. S. 514, § 62,) in order to The People agt. Robertson. give them jurisdiction to proceed. That is, their proceedings in laying out the road without giving such notice are void for want of jurisdiction. Madison Special Term, December, 1858. MOTION for a peremptory mandamus. MASON, Justice. This case comes before the court on a motion for a peremptory mandamus to compel the commissioners of highways to open a road. The jury of freeholders certified the road to be necessary, and commissioners refused to lay the road, and they appealed to the county judge, and he appointed referees, who after hearing the case, reversed the order of the commissioners, and laid out the road, and the defendants must be compelled by the writ of mandamus to open the road, unless the objections to the proceedings show that the order of the referees laying the road is invalid, on account of defects in their proceedings, which affect their jurisdiction to make the order. These will now be considered. The application to lay out a new road and discontinue an old one, may be embraced in same application, (2 Hill's R. 443,) and whether the proceedings to discontinue the old road are valid or not, will not affect the new road, if that is properly laid out. There is nothing in the objection that the referees laid out the road on a route differen tfrom that embraced in the application. The referees are undoubtedly limited to the route certified by the freeholders. (1 Cow. R. 142; 2 W. R. 453.) There has been a substantial compliance with this requirement in the case before us. The referees, however, most certainly erred in laying out the road, without giving three days' notice to occupants of the lands through which this road runs. (1 R. S. 514, § 62.) Chapter 455 cf the Laws of 1847, section 8, declares that these referees shall possess all the powers and discharge all the duties heretofore possessed and discharged by the three judges, and give the same notices heretofore required to be given under said title referred to. The 87th section of the road act, |