9 Ky. 219 | Ky. Ct. App. | 1820
delivered the opinion of the court.
This was an action brought by Tucker against Gibbs for the speaking of slanderous words.
The words charged in the declaration are—that in speaking of, and refering to, the evidence which Tucker had given on oath in a suit determined in the Clarke circuit court, Gibbs said, that he (Tucker meaning) had sworn falsely in detailing his testimony.
Gibbs pleaded, 1st. Not guilty—and 2d. That Tucker, in detailing his evidence in the cause determined in the
From that judgment Gibbs appealed.
The errors assigned present two questions—1. The actionability of the words charged in the declaration: and 2, the correctness of the court's refusal to grant a new trial.
With respect to the first question we entertain no doubt, the words are actionable. Although, to charge a person in general terms of having sworn to a lie, or sworn falsely, is admitted not to be actionable, the position is incontrovertably settled, that, for a charge of having sworn falsely in a judicial proceeding before a court of competent jurisdiction, an action may be sustained.
But with respect to the second question, we are of opinion a new trial should have been awarded.
If the trial had been exclusively upon the general issue, as the words laid in the declaration are proven to have been spoken by Tucker, we should not have considered ourselves authorised to overturn the finding of the jury; but upon adverting to the evidence detailed in the bill of exceptions, we are convinced that Gibbs’ plea of justification was fully supported by the evidence introduced by him; and we are unable to perceive any opposing evidence which the jury, in the exercise of their legitimate province, in deciding upon the weight of testimony, can have founded their verdict in favor of Tucker.
The judgment must, therefore, be reversed with cost, the cause to the circuit court, and further proceedings had consistent with this opinion.