
    David Coble, Appellant, v. Samuel McDaniel, Respondent.
    
      Pleading. — A party cannot traverse and at the same time confess and avoid the same cause of action.
    
      Evidence — Hearsay.—The statements of third persons not made in the presence of the parties to the suit are hearsay, and inadmissible.
    
      Appeal from Greene Circuit Court.
    
    Hendrick, for apppellant.
    
      Parsons, for respondent.
   Bay, Judge,

delivered tlie opinion of the court.

This is an action to recover damages for an alleged slander.

The petition charges that the defendant spoke of and concerning the plaintiff the following words: “ David Coble is a rogue, and he had stole Hoover’s hogs.”

The defendant, in his answer, denies having spoken the words contained in the first count of the petition, and attempts to justify as to the words in the second count.

The petition in this case contains but one co'unt, and the answer must be regarded as both a denial of the words alleged to have been spoken and a justification of those words. Such a defence cannot be made. The defendant must confess the matter stated in the petition and avoid it, or he must traverse it.

Having denied speaking the words, he will be held under the present state of the pleadings to that defence. . The court below, therefore, erred in permitting any evidence to be given upon the subject of justification.

As the cause must be remanded, and the pleadings may be materially changed, it is deemed proper here to state that so much of the testimony given upon the trial as relates to statements made by Elias Boyers, when the defendant was not present, is merely hearsay, and therefore clearly inadmissible.

The other judges concurring,

the judgment will be reversed, and the cause remanded.  