
    Fowlks vs. Long.
    In an action for slander the defendant pleaded justification» and after the testimony was submitted to tlie jury the defendant moved the court to amend his plea of justification? so as to embrace any speaking of the words imputed before action brought. The defendant insisted that the amendment should beailowed only on condition of a mistrial and continuance. The court allowed the ameñdment'without íhé condition: Held, that this was erroneous. 'The amendment should have been allowed, a mistrial entered, and the cause continued.
    Fowlks sued Long in the Circuit Court of Obion county, for defamatory words spoken of him. The declaration avers, that plaintiff, Fowlks, filed his petition ni the Federal District Court at Jackson, on the 21st day of March, 1842,-for- the purpose of being declared a bankrupt, and obtaining a discharge from his debts, and that his -petition was duly sworn to, and thatfhe defendant charged him with having committed wilful and corrupt perjury in swearing to the said petition, and the accompanying schedule of his effects, &c.
    The defendant pleaded: 1st. Not guilty. 2d. Statute of limitations, and 3d. That on the 22d day of March, 1842, in the county of Obion, the plaintiff filed his petition in bankruptcy in the District Federal Court for'West Tennessee, held at Jackson, together with an inventory of the property, rights and credits of him the said plaintiff, of every kind and description, which inventory the plaintiff swore was true to the best of his knowledge and belief; whereas, in truth and in fact, said inventory was not true, and did not contain the property, rights and credits of every kind and description of him the said plaintiff; in this, that it did not contain a note on William Bond and James Holomon for $100, nor a two horse wagon, nor two pistols, nor a tract of land of 150 acres, lying in Obion county, -nor all of his hogs, or horses, or cattle, nor sundry notes, accounts and judgments due him the said plaintiff.
    And that the said plaintiff “did thereby, in swearing to said petition in bankruptcy and inventory aforesaid, on the 22d day of March, 1842, falsely, wilfully, and corruptly commit wilful and corrupt peijury; wherefore, the said defendant, after the filing of said petition and inventory; and before the filing of any amended or supplemental petition or inventory, spoke and published of and conperning the plaintiff the words charged in the declaration.”
    Issue-was taken on these pleas, and the case was-submitted to a jury at the October term, 1843, Harris, Judge, presiding.
    In the progress of the trial the plaintiff moved the court to amend his declaration, by inserting in each count thereof the venue. This motion prevailed, and the amendment was ordered. In the further progress of the cause, after all the testimony had been heard, and all the arguments of counsel had been heard, except the concluding argument on behalf of the plaintiff, the counsel for the plaintiff took the following position, to wit: that the defendant’s plea only justified the speaking the words after the filing the first inventory on the 22d March, 1842, and before the filing of the supplemental inventory on 3d 'of August, 1842, and that as the proof showed that the words were spoken after the filing of the supplemental schedule, the defendant could not under the plea justify speaking such words.
    The defendant’s counsel then moved the court to amend the ■plea by striking out of it the following words; “and before the filing of the supplemental schedule,” so as to make the plea broad enough to cover the speaking of the words charged, at any time after the 22d March, 1842. To the allowance of this amendment the plaintiff objected, but the court overruled the objection and ordered the amendment. The plaintiff then moved the court that a mistrial be entered and the cause continued, which was objected to by the defendant, but the words charged in the declaration having been fully proven by the plaintiff to have been spoken after the filing of the supplemental schedule, and proof in regard to the truth of the same having been fully heard without objection, the court was of the opinion, that the whole transaction was fairly before the jury, and overruled the motion to which the defendant excepted.
    The jury rendered a verdict in favor of the defendant. A motion for a new trial was 'made and overruled, and plaintiff appealed. The testimony was not brought up.
    
      Fitzgerald and Rains, for the plaintiff.
    
      Totten and Gibbs, for the defendant.
   Reese, J.

delivered the opinion of the court.

The plaintiff was a petitioner and applicant for the benefit of the bankrupt law of the United States, before the District Federal Court for West Tennessee; and this action is brought against the defendant for imputing to the plaintiff perjury, in taking the oath which verified the schedule accompanying the petition. The petition and schedule were filed in May, 1842, and in September of the same year, there was filed a supplemental or amended schedule.

The defendant pleaded three pleas, namely, the general issue, the statute of limitation, and a special plea of justification. The last plea alleged, that the plaintiff was guilty of perjury in the oath verifying the first schedule; and specified the omission of property and credits in that schedule, and averred, that the words spoken by him of the defendant, and therein justified, were spoken before the filing of the supplemental or amended schedule. Upon all three pleas, issue was taken.

Upon the trial of the case, after all the proof had been heard, and after the argument of counsel to the jury had been commenced and nearly concluded, the counsel for the plaintiff insisted, that having proved the words stated in the declaration, to have been spoken after the time of filing the supplemental or amended schedule, the words so spoken were not embraced by the very terms of the plea, and were without justification. Thereupon, the defendant’s counsel moved the court, that he be permitted so to amend the plea of justification, as to make it general in its terms, and so as to embrace any speaking of the words in the declaration set forth, that might have taken place before the bringing of the action. This was opposed altogether by the plaintiff’s counsel; and if such leave was given, it was insisted by them, it should be done on the condition of the defendant’s consenting to a mistrial and continuing the cause. But the objection was overruled in both particulars by the court. The amendment was permitted, the case proceeded, and a verdict was rendered in favor of the defendant.

The only question here is, whether the Circuit Court, in permitting the amendment in question, without annexing thereto as a condition the continuance of the cause, acted erroneously. We have manifested in many cases the reluctance with which this court will enter upon the delicate and difficult task of supervising and controlling the discretion of the Circuit Judge in questions of practice relating to the conduct and management of cases on trial before him. For obviously the point of view from which he surveys all such questions is more favorable than our own for a full and just perception of what it may be right and proper to do. But in this case, from the state of the pleadings as it existed before the trial, we are enabled to perceive, that if the plaintiff and his counsel knew that they could prove the actionable words to have been spoken after the filing of the second schedule, they were as secure in their preparations for the trial, if they chose to make the defence, as if no plea whatever of justification had been filed. And although the Circuit Judge might have thought, from what appeared before him, that this preparation was in fact made upon a contrary supposition, he had no right judicially to believe so; and although the amendment was proper in itself, he should by all means have allowed it only upon the condition of continuing the cause.

Let the judgment be reversed, the cause be remanded, and a new trial be had in the case.  