
    James Eagan vs. Israel Gantt, Sen’r.
    On the trial of an action for slander, the defendant will not he permitted, under the plea of the general issue, to prove the truth of the words spoken, or any fact which will go to criminate the plaintiff. The plea of justification, in order to prove the truth of the slander, must always be pleaded.
    Before Richardson, J., at Lexington, September Term, 1835.
    This was an action of slander, for charging the plaintiff with perjury, by swearing to a lie, in the course of evidence given by him, in a case of trespass, brought by Steedman vs. Gantt. The evidence fully supported the case, with the necessary colloquium, &c. The plea was the general issue “not guilty S' and the defendant introduced one Wm. Williams, who was permitted by the Court (though objected to by Eagan’s counsel,) to prove the matter that Eagan had sworn to, upon the former trial, and charged to be false by the defendant, Gantt. Williams related “ that Eagan said that the land,” (then in question,) “was pretty nigh wore out, and that Gantt had cultivated the land seven or eight years.” Gantt’s counsel then offered to ask the following questions, which were objected to:
    “Was the land pretty nigh worn out? Did Gantt cultivate the land seven or eight years ? Was the evidence of Eagan true, or not ?”
    The questions were overruled, as wholly incompetent, without the plea of justification. But all questions and matter short of direct evidence of Eagan’s perjury, when formerly sworn, were allowed. Defendant’s counsel contended, that since the case of Reed, &c., there was no necessity for the *plea of justification in any case. The case was given out to the jury upon the facts, and they returned a verdict of three hundred dollars for plaintiff.
    The defendant appeals, on the grounds:
    1st. Because the defendant offered to prove by several witnesses, that Eagan swore on the trial of I. & A. Steedman vs. Israel Gantt, in an action of trespass to try titles, and to recover damages, that Gantt had occupied and cultivated the land for eight years, and that the land was nearly worn out, and Eagan’s testimony on these points was not true. The words alleged in the declaration, were spoken in allusion to Eagan’s testimony in this case, but the Judge decided that it was incompetent evidence, to contradict what Eagan swore in that case, unless the defendant had pleaded justification.
    2d. Because it was competent, under the plea of the general issue, to give circumstances in evidence, (to rebut the idea of malice on the part of the defendant,) that Eagan’s testimony was inconsistent with the facts ; and that the circumstances proposed to be proved, (and which were excluded by the Court,) would have gone to establish what was not true, and that his evidence was erroneous ; and the circumstances ought to have been permitted to have gone to the jury in mitigation of damages.
    3d. Because all the circumstances of Eagan's testimony, and the facts connected with the case, were competent, on the part of the defendant, to prove the provocation — the probability of the charge, and the suspicion the plaintiff's evidence was calculated to create.
    4th. Because the verdict was, in other respects, contrary to law and evidence.
   Curia, per

Richardson, J.

I am directed to announce the decision of the Appeal Court. The Court have to inquire, whether the questions, put by the defendant’s counsel, and overruled by the presiding judge, were offered for the purpose of proving that Eagan had sworn falsely, or for the purpose of extenuating the slander, and thereby diminishing the offence of Gantt, without criminating Eagan. The former would require the plea of justification, in form ; the latter, no more than the general issue — “not guilty.”

In practice, it is often difficult to distinguish between matter of justification, and circumstances which go to extenuate the slander and lessen the damages, yet leave the plaintiff uncriminated ; but, the moment the distinction is seen, the rule of pleading is unquestionable.

In the case before us, it was not denied on the circuit, that the object was to justify the defendant. The drift of the questions offered is indeed plain, from the third question, i. e. “ was the evidence of Eagan true or not ?” This question was urged upon the Court, by the same argument was offered to justify the first and second questions. The proposition of the defendant’s counsel, at the trial, was, that there is no legal necessity to plead a justification, in order to make it competent to prove the truth of the slander. It is true, that the argument is immaterial to the merits of the question. But it was this proposition that was rejected by the Court, as a mistake in law. And such questions as were predicated upon it, were overruled, as altogether incompetent, without the plea. Bat all questions searching for matter of excuse or extenuation, and short of evidence going to criminate Eagan, were allowed by the Court. The argument might rest here, but as the facts of the case illustrate the justice and necessity of preserving the plea of justification, for its proper office — to prevent surprise — I will notice them.

The plaintiff first proved the slanderous charge of perjury, as made by the defendant, in reference to his former evidence, given in a certain case. The defendant then introduced William Williams, who swore that Eagan when examined at the trial, deposed that “ the land was pretty nigh worn out; and that “ Gantt had cultivated it seven or eight years.” So far, the evidence was harmless; and although objected to was permitted, as the possible foundation of some explanation or extenuation, yet to come. Upon this evidence, the questions rejected were predicated. “ Was the land pretty nigh worn out ?” “ Did Gantt cultivate the land seven or eight years ?” And lastly, as if to demonstrate that the crimination of Eagan was aimed at, the two former questions were reiterated in the third. “Was the testimony of Eagan true or not ?” In this third question, we have the precise gist of the inquiry before the Court, i. e. Was the object to criminate Eagan ? Now I ask, how was it possible for Eagan to be prepared to resist the evident crimination intended to be brought out by such questions, when placed in such a connection with the evidence just given by Williams ? Unless the plaintiff had been put on his guard, by a plea that the charge of perjury would be justified ? Without such a plea, he must have been surprised to find the tables thus turned upon him. And such surprise attests the necessity of requiring, that the plea should have been filed on the part of Gantt. The plea of justification is not abolished. Its place is found, whenever the intention is to criminate the plaintiff, by proving the slanderous words true.

The Court therefore concur with the presiding judge ; and the motion is refused.

Johnston, Evans, Johnson, and Gantt, concurred.

Butler, J.,

dissenting. I dissent from the opinion of the Court in this case. The defendant did not wish to assume the perilous position of deliberately imputing perjury to the plaintiff by filing a plea of justification, which could alone be supported by proof of a perjury. — That is, that *plaintiff had taken an oath, in a judicial trial, to a fact material to the issue, and which was deliberately and wilfully false. When the defendant made the charge, he may not have been acquainted with all the legal ingredients of the crime imputed to the plaintiff, and at the trial, he may not have been able or willing to prove all that would be required by the plea of justification. But does it follow that he should have been deprived, for the want of such plea, of an opportunity of showing, that defendant had been culpably negligent in making his estimates before he was sworn on a former trial ?

The defendant did not offer to prove that plaintiff had committed a perjury, he offered to show that plaintiff had said in his oath what was in fact not true; that is, the land in question was not near worn out, and that Gantt had not cultivated it seven or eight years ; and in doing this it would not have followed that plaintiff had been guilty of a wilful falsehood. If defendant had been permitted to introduce his evidence, he might have shown that the land was somewhat used, but not nearly worn out, and that Gantt had cultivated it for four or five years, but not seven or eight; or he might have shown that plaintiff had sworn with a recklessness and ignorance of the true facts, which was culpable in a high degree, but not legally criminal; that he had spoken “ unadvisedly with his lips,” where it had been in his power to have informed himself, and to have given correct information on the matter in controversy. Should a party be deprived of showing these things, because he cannot make out a crime against the plaintiff to justify the words spoken ? Cannot a party excuse himself by showing something by way of extenuation, without being driven to a plea which would impose on him the necessity of convicting plaintiff of a technical crime ? If a defendant is deprived of this evidence, this is his situation ; he cannot plead justification, because he has not evidence enough to support it, and if he does not justify, he is deprived of all evidence to excuse himself, by showing that plaintiff had committed a mistake, or had been guilty of great negligence in making statements giving information to the Court. The plaintiff in his evidence on a former trial might have testified to what was not true, without its being criminally false, so as to fix on him the imputation of perjury. The extent of the evidence offered by defendant and rejected by the Court, was to show that plaintiff had not testified truly, as to the degree of wear and deterioration of the land, and the time it was occupied. In giving his evidence, the plaintiff may have made a mistake, or he may have been culpably negligent; and how could defendant show either without the evidence which was excluded ? In what way could he have availed himself of the benefit of this evidence ? If it could have been of any service to him, he has been precluded from it unjustly by the rule laid down. I have always understood the rule to be, that a defendant in slander could introduce any evidence under the general issue, to reduce the damages by showing that he had grounds for what he had *said of the plaintiff, and that he could show any grounds not amounting to the crime imputed ; but where he contends for an entire verdict, he must show that he did not use the offensive words ; or if he intends to maintain the truth of them to the extent of their legal import, he must do so under a plea justification. I will suppose a case, that A. said of B. that B. was guilty of larceny ; an action was brought; A. could show that B. had traded with a negro, under suspicious circumstances, showing that he had traded for stolen goods ; the charge would not be supported by the proof under plea of justification; but should the defendant, on that account, be deprived of the testimony under the general issue to reduce the damages ? Any thing less than the crime imputed should be given in evidence, under the general issue ; but where evidence is offered to prove the crime charged, it should be a plea of justification, to authorize its admission.

See 10 Rich. 417; 1 N. & McC. 268. An.

Caldwell and Summer, for the motion. Bauskett and Caughman, contra.

O’Neall, Harper and De Satjssure, concurred. 
      
      
         See 2 Sp. 1. An.
      
     