THIS was an action of slander brought by the appellee against the appellant. The words alleged to have been spoken charged the former with having committed perjury. The appellant pleaded not guilty; and, in justification, that the words spoken were true.
The evidence is not set out in the record, but it appears, by a bill of exceptions, that the Court, at the instance of the plaintiff below, charged the jury, inter alia, that to convict a defendant upon a charge of pel jury upon an indictment, the positive testimony of two witnesses, or of *85one witness and corroborating circumstances to every ma(terial point of the false swearing, is necessary; and I the defendant, in order to prove the truth of his pleas of ¡justification, must give evidence of the same strength as ■ would be necessary to convict the plaintiff of perjury in ! a criminal prosecution.
J. Ryman, for the appellant. J. S. Scobey and A. Davison, for the appelleesThis was correct; but the Court gave the further instruction, that if the pleas of justification were not sustained by proof of the kind above-mentioned, they might be considered by the jury in aggravation of the damages.
This last instruction was erroneous. Shank v. Case, November term, 1848. — Shoulty v. Miller, November term, 1849 (1).
The judgment is reversed with costs.
Sec 1 Carter’s Ind. R. 170, and id. 544.