
    Braden and Wife vs. Walker.
    An invalid and insufficient pica of justification in an action of slander, upon which no judgment Could have been rendered, is entitled to no weight in aggravation of damages under the plea of not guilty.
    Moore sued Braden before Burch, a justice of the peace for Claiborne county, on a note executed by Braden to Moore.As a defence to the action, Braden produced an order in these words: “Mrs. Sarah Collins, you may give that pot and kettle to John Braden, that I have levied on, as he has settled the tax with me for Green, this 28th day of March, 1843.
    N. H. 'Moore.
    Test — Jonathan Walker.”
    There was endorsed on the order the following words: “I protest this order, this 21st April, 1843.
    Sarah Collins.”
    Walker being introduced as a witness in this case, stated, that the object of the order was merely to release the officer’s levy, and not to convey the property mentioned in-the order to Braden, or that said Moore should be liable on it. He also stated, that Sarah Collins was willing to give up one of the vessels mentioned in the order. Walker was the only witness, and judgment was rendered for the plaintiff on the note.
    After the. trial Sarah, the wife of Braden, made various statements imputing perjury in the swearing to Walker, and suit was commenced for slander, in the circuit court of Claiborne county, by Walker against Braden and wife; the declaration setting forth various words imputing perjury.
    The defendants pleaded; 1st not guilty: 2d, not guilty within six months, and 3d, that Walker became a witness in the cause mentioned in the declaration, when amongst other things it became a material question whether the said Walker was a witness tb an order in these words, &c. &c. &c. And also it became a material question whether said order should not be received to rebut the demand set up by Moore against said Braden, to defeat which effect said witness, Walker, then and there proved, that the object of the order, to which he was a witness, was to release the pot and kettle from the levy of the officer, and also swore that Sarah Collins was willing to give up one of the vessels. Whereas, in truth and in fact the said Sarah Collins was not willing to give up either of the vessels mentioned. And so the defendant avers that the swearing was false, and the defendant was therefore justified in speaking and publishing the words imputed to him in the declaration, all of which he is ready to verify.
    To these pleas there were .general replications, and the case was submitted to a jury, judge Lucky presiding, and he charged the jury, that the plea of justification, though quite informal, in substance, alledged, that the defendant was justified in speaking the words, because the plaintiff did commit perjury; should the jury from the evidence, believe that, on the trial before the justice, the plaintiff knowingly, wilfully, and corruptly swore to that which was not true, then they should find on the plea for the defendants'; on the other hand, if the plea is not sustained by proof, it aggravates the offence, and the jury should find for the plaintiff, and assess whatever damages they may think he has sustained. .
    The jury returned a verdict for the plaintiff for five hundred dollars. A motion was made for a new trial and overruled, and judgment rendered for the plaintiff.
    The defendant appealed.
    
      Peck, for plaintiff in ei'ror.
    
      Sawyers & Evans, for defendant in error.
   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.  