Andrew Swearingen, esq. against Rev. Thomas Ledlie Birch, 4 Yeates 321

T ilghman, C. J. delivered the opinion of himself, and Yeates, Justice. This is an action of slander, which comes before the court on an appeal from the judgment of the Circuit Court of Washington *county, who awarded a new trial, a verdict having been found for the plaintiff. L 3 5 It appears from the report of the judges, before whom the cause was tried, that the words for which the action was brought, were spoken by the defendant during the trial of a cause in which he was plaintiff, and the plaintiff in the present cause was examined as a witness.

The defendant was sitting in the bar next to his counsel, and after hearing the plaintiff’s testimony; he said, either that the witness had sworn falsely, or he could prove every word he had sworn to be false ; and for speaking these words the present action is brought. The Circuit Court charged the jury, that if they should be of opinion, the defendant addressed the words to his counsel with a view to his defence, the action could not be supported ; but that the words were actionable ii published by the defendant maliciously, without a view to his defence. There was a contrariety in the evidence. Mr.

Mountain, the defendant’s counsel, testified confidently, that the words, though spoken louder than they needed to have been, were addressed by the defendant to his counsel, and not intended to be published. On the other hand, Mr. Porter, then a student of law, who was sitting in the bar near to the defendant, rather thought, that the words were not addressed to the defendant’s counsel, but uttered under a sudden impulse of mind. Mr.

Addison, who argued for the plaintiff in this court, has very truly stated, that questions of law are to be decided by the court, and questions of fact by the jury; and that in granting new trials, the court are bound to exercise a reasonable and legal discretion. But it by no means follows from these principles, that if the jury find a verdict, which in the opinion of the court is against the evidence, a new trial ought not to be granted ; because by granting a new trial, the court does not assume to themselves the trial of facts ; they only submit the facts to the consideration of another jury.

A case was cited from 3 Wils. 47, to shew, that where evidence is given on both sides, a new trial is not to be granted. But this is not a sound principle. There may be a contrariety of evidence, and yet the weight of it greatly preponderates against the verdict; and in such cases, justice requires that there, should be a second trial. And so are the authorities. It is extremely difficult for this court, who did not hear the evidence, to. ascertain with precision what was the weight on either side. The notes of the judges who tried the cause, cannot give so clear an idea as if we had heard the testimony.

For this reason, we are in duty bound to pay very great respect to the opinion of these judges, especially as they have ordered a *new trial, which insures the plaintiff an opportunity of attaining the justice of his case. *326] Besides, we are of opinion, that great allowance is to be made for what a man says when attending the trial of his own cause. He certainly had no right to make that circumstance a cover for malicious slander ; but he ought to be indulged in the utmost freedom in communicating his sentiments to his counsel or the court.

For a man has a right to address himself to the court in his own cause. The more we reflect upon the subject, the more we shall be convinced that it will not promote the peace or happiness of society, to encourage actions of slander for what is said by the parties concerned during the trial of their causes. In the case under consideration, the counsel for the defendant has sworn, that he is certain his client addressed his words to him. Of this, from the nature of things, the counsel is a better judge than any other person ; nor does any witness undertake positively to contradict him.

He is moreover fortified by Alexander Hunter. The jury were undoubtedly the judges of the credibility of the witnesses, and no doubt they have conscientiously decided according to their judgment. But as the judges who tried the cause, were dissatisfied with the verdict, and their notes of the evidence do not warrant us in concluding that they erred in judgment, we think it on the whole most conducive to justice, that the matter should be submitted to the consideration of another jury. The judgment of the Circuit Court is therefore affirmed ; and the costs in this court must abide the event of the new trial.