
    David Watt v. W. H. Whitlow.
    Slander — Words Spoken After Commencement of Suit — Instructions.
    In this action for slander words spoken after the commencement of suit, and which were then actionable, were stated in an amended petition, and the speaking of these w'ords, as well as those spoken before the action was brought, were proven on the trial. Held, that the court erred in instructing the jury “that if they believed from the evidence that the defendant spoke the words charged in the amended petition they should find for the plaintiff.”
    APPEAL FROM MONROE CIRCUIT COURT.
    June 29, 1866.
   .Opinion of the Court by

Judge Marshall:

In this action for slander words spoken after the commencement of the suit, and which were themselves actionable, are stated in an amended petition, and the speaking of these words, as -well as of those spoken before the action was brought, was proved on the trial.

The court instructed the jury that if they believed from the evidence that the defendant spoke the words charged in the petition or amended petition, or the words in substance, they ought to find for the plaintiff such damages as under all the circumstances they thought proper, not exceeding the sum claimed in the petition.

In a second instruction the jury were told that words uttered after the commencement, of the action could only be considered by them in reference to the malice.

The first instruction was erroneous because it told the jury to find damages for words spoken after the commencement of the action, and the second being irreconcilable to it, and irreconcilable, tended rather to confuse than to enlighten the jury. The first instruction should not have included “words spoken after the suit was brought,” and as decided in Setton v. Young, 2 Metc. 561, 562, the jury should have been told explicitly that they werejnot to increase the damages on account of such words.

For the error in the instructions the judgment is reversed, and the cause remanded for a new trial in conformity with this opinion. -  