#### JOHN CHANDLER *vs.*HENRY ROBISON.

Where a person charges another with perjury and is sued in an action for the defamation, it is not sufficient for him to prove simply, that what the plaintiff swore to was not true, but he must introduce evidence to convince the jury that the false oath was taken corruptly.

Appeal from the Superior Court of Law of Haywood County, at a Special Term, in June 1S47, his Honor Judge Bailey presiding-.

This was an action for a verbal slander ; the pleas, the general issue and justification. The charge -was, that the defendant said, he had been informed, or a grand juror had informed him, that a true bill had been found against the plaintiff, for swearing to a lie, in a suit before a Justice of the Peace, between the plaintiff and one Hinson, on which trial the plaintiff was sworn under the book debt law, and that he would have his black jacket striped, or stript, at the next Court. To sustain his plea of justification, the defendant proved, that, some two or three years since, one Hinson owed the plaintiff eight gallons of brandy, which he was to have at SI 1-4 cents per gallon, *if he paid the cash.*Hinson did not comply with his contract, but, soon after, paid $1 12 1-2, for whch the plaintiff gave credit on his account. The plaintiff and Hinson then came to another agreement. The plaintiff agreed, if Hinson would deliver to him two bushels and one half of wheat, before sowing time, he would take it in discharge of the balance of his account, the whole to be valued at seventy-five cents per bushel, and the brandy at thirty-seven and a half cents. per gallon. After this, Hinson delivered one bushel of wheat which is credited in the plaintiff’s account at 75 cents making in the whole paid to the plaintiff @1 87 1-2 ; but Hinson failed to deliver the balance of the wheat, in time *483according to the agreement. After this failure, the plaintiff warranted Hinson for four dollars,. and, at the same time, informed the officer, that, after deducting the credit, there would be due on the account, one dollar and twelve and a half cents, or thereabouts. On the trial of the warrant, the plaintiff exhibited his- account, in which he charged Hinson with eight gallons of brandy, at fifty cents per gallon, and credited him with one dollar, eighty-seven and a half cents. He swore, that, after giving all just credits, his account was just and true. The magistrate gave judgment for the plaintiff, and afterwards granted the defendant a new trial; and, on the second trial, the plaintiff admitted, that he had made the two contracts, as herein before stated, and. again swore that his account was just. It was shewn, that, about the time of the second contract, the plaintiff had sold brandy for fifty cents per gallon.

The defendant’s counsel moved the Court to charge the jury, that, if they believed the witnesses, the plaintiff had taken a false oath ; arid, further, that, as the plaintiff had, on the second settlement, given credit for $1 87 1-2 cents and had agreed to take two and a half bushels of wheat for the balance' of his 'account, at 75 cents per bushel, rating his brandy at 37 1-2 cents per gallon, and as a bushel of wheat had been. delivered in pursuance of his last agreement, the plaintiff was bound by it, as far as it was complied with, and could not look beyond it, and had no right to charge m,ore than 37 *1-2*cents per gallon for the brandy, not yet paid for. This instruction the Court refused to give; but charged the jury, that, although the plaintiff- had entered into the contracts stated by the witnesses, and had agreed to take the wheat, and charge the brandy at the stipulated prices, yet if Hinson failed to comply with his part of the contract, the plaintiff had a right to- be remitted to his original account, and to charge for the brandy whatever it was worth. His Honor further instructed the jury, *484that, in'order to sustain the defendant’s plea of justification, they must be satisfied, that the plaintiff not only swore falsely, but that the oath taken by him before the magistrate was wilfully and corruptly false. If so, they would find a verdict for the defendant.

There was a verdict for the plaintiff, and a judgment accordingly, from which the defendant appealed.

*Francis,*and *J. W. Woodfm,*for the plaintiff.

*Edney,*for the defendant.

Nash, J.

We agree with his Honor in refusing the instructions prayed for, and are not able to perceive any error in the charge. The first branch of the instruction required was palpably wrong. The Court was required to instruct the jury, that the testimony of the witnesses, if believed, shewed that the plaintiff had taken a false oath. That was not the charge made by the defendant against the plaintiff; but it was one of perjury. It was not sufficient, therefore, to the defendant’s justification, that he should shew that the oath was false; but he must go farther, and shew that it was corruptly false. If this were not so, the condition of a witness would be truly perilous; the ignorant and the innocent would occupy the same ground with the corrupt. The most intelligent and upright are liable to be mistaken. It is not the falseness of the oath, alone, that constitutes the crime of perjury; but it is the corruptness of the heart in taking it. The Court, therefore, could not give the instruction as required, and the charge upon that part of the case is entirely correct. Neither was there any error in refusing the instruction asked for, as to the price of brandy sworn to. Two special contracts were entered into between the plaintiff and Hinson, relative to the brandy. By the first, Hinson was to have the brandy at 31 1-4 cents per gallon for cash. With this contract Hinson did not comply j and, after making a partial payment, it was mutually *485abandoned, and a new one made, wherein both the price of the brandy and the mode of payment were changed. With this latter contract Hinson did 'not comply, and might by the plaintiff be considered as having abandoned it. And, in an action for the brandy, Hinson would not be allowed to set up, in his defence, a special contract, which he, himself, had broken. *2 Smith’s Lead. Ca. 27.*The plaintiff, then, was no further bound by it, than as it had been partially performed.. Having been disappointed by Hinson in getting his seed wheat at the time he needed it, he was justified in considering the contract so far at an end, as to authorize him to charge for his brandy what it was worth. Such was the charge the jury received. But if, in strict law, the plaintiff was still bound by the contract, yet he might well believe he was remitted to his original account, upon the failure of Hin-son to comply with it. And, if he did so believe, though the oath taken by him might have been, false, it would not have been corruptly so, and would not support the defendant’s plea; and the question of corruption was left to the jury.

Pee Cubiam. / Judgment affirmed.