
    Kean against M'Laughlin.
    In Ebsoe.
    ERROR to the Common Pleas of Westmorland county, in an action of slander, in which McLaughlin, the defendant in error, was plaintiff below. One George 'layhr having brought an action, against Kean, the defendant in this suit, before a justice of the peace, the plaintiff who was subpoenaed as a witness, gave his testimony on oath, against the defendant, As soon as the plaintiff had finished his testimony, the defendant turned towards him and said, « you have sworn a « manifest lie.” The speaking of these words was the cause of action in this suit. The plaintiff proved the words, and then in order to aggravate the damages, offered to prove, that since the commencement o.f this suit, the defendant had ; made declarations of the like kind. This evidence was objected to by the defendant, but admitted by the Court, and an exception taken. The evidence being closed, the counsel for the defendant contended, that it was not sufficient to- support the action; because, what the defendant had said of the plaintiff was spoken in the course of his defence, in a judicial proceeding. But the President of the Court was of a different opinion, and charged the jury, that the evidence was sufficient to support the action. The .defendant excepted to the Court’s opinion. The jury found for the plaintiff..
    
      A defends Wit in a suit before a jus* tice, turned towards a witness, who.h.ad just finished bis testimony* and said, ‘-‘•you have sworn a manifest lie.*' Held action* able.
    Wh eve-words spoke» areactionable.,. ; it is proper to admit evi- > denee of the-same words heina* spoken after the action brought te» aggravate damages.
    1fí¡ a party cfcsfres a.* more particular- opinion than ike Court gives* it fa his duty to, state thtf ^.okvt' wd tken tke Court is hound to. answer..
    
      Alexander, for the plaintiff in. error.
    Words used in legal proceedings pertinent to the cause in hand, are not actionable. 3 Black. 125. One in an affidavit of exculpation said, that the adverse party had sworn falsely against him, and it was held not actionable. Astley v. Young. In proceedings before justices it is usual for the parties to make their allegations by parol. In this case, the defendant was speaking in his own defence: pleading his cause before the justice: and he had a right to say, that the witness swore false. It ought to have been left to the jury, whether the words were relevant to the defendant’s defence.
    Forward, contra.
    The defendant was not speaking in his defence : he addressed himself to the plaintiff after his testimony closed. He did not attempt to prove, that the plaintiff swore falsely. It was held actionable for the plaintiff in a cause to say of a witness, that what he swore was false. 6 Johns. 82. He cited Birch v. McMillan.
      
    
    
      Reply. In 6 Johns. 82. the Court said, that after a verdict it must be presumed, that the malice was proved.
    
      
       2 Burr. 807.
    
    
      
      
        1 Binn. 178.
    
   Tilghman C. J.

The only question is, whether the words were actionable : because if they were, it was proper to admit evidence of the same words spoken since the action was brought, in order to increase the damages as was decided by this Court in the case of Wallis v. Mease. 3 Binn. 546.

In all judicial proceedings the parties are permitted to speak freely, and if they should even make use of harsh expressions they will not be liable to an action, although the same words spoken on another occasion would be actionable. But this privilege is not to be abused, nor is a party permitted to utter slanderous words against a witness by way of insult, and not in the course of his defence. If the defendant had said, that he would prove the testimony of the plaintiff to be false, he would not have been liable to an action although he had failed in his evidence; neither would he have been liable, if, in the course of his argument, he had undertaken to prove from the. evidence, that what the plaintiff had sworn was not true, although he failed in making it out: because in both these instances, it may fairly be presumed, that the words were not spoken maliciously, but with a view to defence. But from the evidence in this case it appears, that when the defendant spoke the slanderous words he was not making his defence. He did riot even address himself to the justice, but turned to the plaintiff and charged him with havsworn a manifest lie. The abuse, therefore, was wanton, and not protected by law. The plaintiff in error complains, that the Court did not leave it to the jury to decide, whether the words were spoken maliciously. It appears from the record that the counsel for the defendant asked no opinion of the Court on any particular point of law, but contended in general, that the action was not supported by the evidence. The President, therefore, in delivering his charge had a right to give his opinion both on the law and the fact; subject, nevertheless, to the right of the jury to judge for themselves as to all matters of fact. If the defendant’s counsel desired a more particular opinion, it was their business to state the point, and the Court would have been bound to answer. Considering the whole as it appears on the record, I am of opinion, that there is no error, and therefore the judgment should be affirmed.

Yeates J. was sick and absent.

Gibson J. concurred-.

Judgment affirnVéÜh  