
    KNOXVILLE:
    JULY TERM, 1833.
    Wilson vs. Nations.
    In an action of slander for charging plaintiff with perjury in a certain suit, if the defendant plead justification, stating that in the trial of the suit the plaintiff “swore that a hog had not a certain mark,” proof that the plaintiff had sworn, “if there was a certain mark on the hog he did not see it,” would not support the plea.
    If a person know that a fact exists, but state on oath, knowingly and intentionally to deceive and mislead, that if the fact is so he does not know it, he will be guilty of perj'ury, and it will be equivalent to swearing that the fact does not exist.
    If the proof substantially support the plea of j'nstification, it will be sufficient.
    The plea of justification, if untrue, is an aggravation in slander, and evidences continued malice.
    The judge is not bound to charge upon all the points submitted to the j ury; if his general charge embraces the law of the case, it will be sufficient.
    A new trial will not be granted where there is strong proof on both sides.
    This was an action of slander brought by Nations against Wilson, the present plaintiff in error, in the Claiborne circuit court. The declaration alleges, that the delendant charged the plaintiff with having sworn to a lie upon the trial of the case of the State vs. Leander Leach, upon a warrant before a justice of the peace. The defendant pleaded not guilty, and a plea of justification, in which the defendant says the plaintiff in swearing, and upon oath in sard suit, stated that “a certain hog,” (the stealing of which the said Leach was charged with, and about which the witness was then-deposing,) “had not a scar on it;” and that such matter was pertinent to the inquiry in said cause, and that said Nations did thereby commit wilful and corrupt perjury. To' this plea the plaintiff replied, upon which issue was taken. Upon the trial of the cause in the circuit court, the plaintiff proved the speaking of the words by the defendant, as laid in the declaration. Upon the plea of justification, the proof shows that the plaintiff in Leach’s trial said, that “if there was a scar on the hog he did not see it;” or said, that “if there was a scar on the hog bigger than his thumb nail, he did not see it.” As to the proof, whether Nations could have seen and did see the scar, there is some diversity in the record, there being much proof on both sides; leaving it doubtful upon which side the weight of proof lies. The circuit judge charged the jury, that as the plea of justification, charged the plaintiff to have sworn absolutely that there was no scar on the hog, to support the plea the proof must substantially correspond with the allegation therein. If the proof was, that the plaintiff qualified his statement when on oath, by saying, that “if there was a scar on the hog he did not see it,” or “if there was one bigger than his thumb nail, he did not see it,” this would be a variance between the plea and the proof, and would not support the plea; but if they believed that the plaintiff knowingly intended to mislead, and knew the hog had a scar, but qualified in the above manner to make a fair impression, they should find for the plea. The court also charged the jury, that a defendant, by pleading a justification, and by repeating slander, or putting it upon record by plea, was adding aggravation to injury, because evidence of continued malice. The court further charged the jury, that the whole case was' before them, that they were to consider of all the facts and circumstances, and were authorized to give high or low damages, so that they did not exceed the sum laid in the writ; and that they must decide from aview’of the whole case, whether the plaintiff was entitled to damages, and how much. The jury found the defendant guilty, and that he was not justified in using the words, and gave damages for $300. The defendant moved for a new trial; the motion was overruled, and an exception taken to the opinion of the court, and an appeal in the nature of a writ of error to this court.
    
      J. A. M’Kinney, for the plaintiff in error.
    P. Lea, for the defendant in error.
   CatRON, Ch. J.

delivered the opinion of the court.

1. This court is of opinion that the charge of the circuit court is not subject to sufficient objection to authorize the setting aside the verdict.

2. The circuit court was not bound to charge further than was done, 'on any of the points submitted for a further charge to the jury.

3. The court below, on the evidence, could not lawfully grant a new trial, there-being strong evidence on either side. Therefore the judgment must be affirmed.

Judgment affirmed.  