#### [†] BADGLEY *against*HEDGES.

ERBOK FROM SUSSEX PLEAS.

Words spoken in defense at a trial, not actionable.

The defendant in erroi’, brought an action against the plaintiff in error, in the Common Pleas, for words. The three first counts charged, that the plaintiff below, was *218examined as a witness, on a trial in a court for tire trial of small causes, in a cause wherein the defendant was a party; and that after the plaintiff had testified to a fact, the defendant maliciously intending &c., spoke, published, and proclaimed, &c., the following false and defamatory words, of and concerning the plaintiff, that is a lie, and I can prove it; varying the counts so as to meet the evidence. On the trial of this cause, before the Common Pleas, the plaintiff below, offered to give in evidence, that while she was under examination, as á witness in a court for the trial of small causes, held before Justice Abraham Woolley, (the [170] record of his proceedings having already been given in evidence,) and immediately after she had testified to a fact, the defendant declared' that what she had testified was a lie, and that he could prove it; on which the counsel for the defendant below, insisted that the evidence was illegal and inadmissible, and ought not to be given to the jury. The court overruled the objection, and admitted the evidence. The defendant excepted to'this opinion. The witness being sworn, proved, that the plaintiff below was produced, sworn, and examined as a witness on the part and behalf of the defendant; and, that in the course of her evidence, she testified to a particular fact; and that immediately on her testifying to that fact, and while she was under examination, the defendant said, “ that is a lie, and I can prove it; ” and a little while after, *added*— “ and I think I have proved it.”

The fourth count, charged certain 'other slanderous words, no way connected with those charged in the three first counts. The plaintiff, as to this count, only proved, [*] that the defendant said, that he was told so by another person, naming him, the brother of the plaintiff. On this the- defendant moved the court to overrule the testimony, on the ground of variance between the words charged and those proved, but the Court of Common Pleas refused to overrule the testimony, on the ground, that although the words were not suffi*219cient to support the fourth count, yet that they were proper to be given in evidence, by way of aggravation of damages, and to show malice under the three first counts in the declaration. To this opinion, the defendant also excepted, the whole appearing on the record.

*Mr. Isaac H. Williamson,*for the plaintiff in error,

said, that it must be considered that no evidence was given on the fourth count, the words not being proved as charged. That, the three first counts were not actionable, being spoken in a court of justice, in the course of trial, and in a manner lawful for the defendant to do in defense of himself; for which he cited *Cro. Jac. 432; 1 Vin. 388; 6 Bac. 225; 2 Bur. 807.*That there was not any malice expressed, but a mere denial of the truth of what the plaintiff had testified to. *Mr. W.*also contended, that the declaration ought to have charged, that the matter testified to by the plaintiff below, was material to the issue under trial, otherwise declaring it to be false, even out of court, would not amount to a charge of perjury ; for this he cited *2 Blac. Com.; 6 Bac. 207; 1 New York T. Rep. 347.*On the fourth count he said, that the evidence was inadmissible to aggravate damages on the three first counts, being words that were of themselves actionable; and that words that were of themselves actionable, [171] could not be given in evidence, by way of aggravation.

*Mr. M’Whorter,*on the same side,

said, that no action could lie against an advocate for words spoken in defense of his client, and cited *6 Bac. 225; Style’s Rep. 462.*That if the advocate was protected on the ground of his defending his client, the client himself, or a party in a cause, must certainly be protected on the same principle.

[*] *Mr. Chetwood,*for the defendant in error,

denied that the words rvere spoken in a judicial proceeding; and alleged that they were not necessary for the defense of the defendant below, in his cause before the justice; and that it was not necessary to aver, that the words testified to were material: *220he also said, that Lord Kenyon had laid it down, that any words which show malice may be given in evidence, by way of aggravation, in order to show the intent with which the words charged were spoken.

By the Court.

— This judgment cannot be sustained. It is abundantly evident from the record, that the words charged in the three first counts were spoken in a court of law, in the progress of a trial, and in a course of justice; that the language was uncivil, and merited the censure of the justice, before whom the testimony was given, is very clear; but they are not actionable; nothing is more common than for a party to say in his defense, that the evidence given against him is not true, and that he can prove it. The three first counts, not containing a cause of action, and the testimony failing on the fourth count, there is nothing to support the judgment of the Common Pleas.

Judgment reversed.