Braden v. Walker

Reese, J.

delivered the opinion of the court.

This is an action of slander brought against plaintiff in error for words, imputing perjury, spoken by the wife, of the plaintiff below. Issue was joined upon a plea of, not guilty. The defendants pleaded a special plea, which averred that plaintiff, on the occasion set forth in the declaration, had sworn to facts specified in the plea, which were not as sworn to, and that the statement was untrue and false, and the defendant therefore justified, &c. Plaintiff replied to this plea and issue was taken thereon.

. On the trial, the court charged that the plea in question, although very informal, in substance imputed perjury; and that unless the defendants had proved that plaintiff had wilfully and corruptly sworn to what he knew to be false, they should on that issue find for the plaintiff, in which case the filing of 'the plea ought to aggravate the damages. The charge of the court upon the point states truly, what a valid plea of justification, in the case, ought to have been, but not correctly what. the plea in question imported and in fact was. Evidence showing the statement of the plaintiff to have been false in the particulars designated, would have maintained the plea. To be sure the finding would have been immaterial — and so it would have been, if the defendant had proved the oath of the plaintiff to have been wilfully and corruptly false, in material particulars, because the strength of the proof could not have aided the weakness of the allegation. If defendants had obtained a verdict upon this plea, judgment must have been arrested. It was, therefore, error in the court, to state that the filing of such a plea should have all the effect against the defendants in aggravation of damages, that would have resulted froiñ a plea imputing wilful and corrupt perjury. For this reason the judgment must be reversed, and a new trial be awarded.