
    Culbertson v. Stanley.
    SlandeR—Variance.—If tlie words in slander are laid as having been spo ken to the plaintiff, it is a variance if they were spoken concerning him tc a third person.
    
      Pleading—Practice.—A plea professing to answer a part of the cause of action, and being an answer to such part, though not drawn with technical accuracy, ought not to be rejected on motion.
    Examination' oe Witness.—The overruling of an objection to a leading question, put by the plaintiff to one of his witnesses, can not be assigned for error, unless the record show that the defendant was injured by the answer of the witness, 
    
    APPEAL from the De Kalb Circuit Court.
    
      
      
         City of Aurora v. West, 22 Id., 88; Rodman v. Kelly, 13 Ind., 377
    
   Sullivan, J.

This was an action of slander by Stanley against Culbertson. The declaration contains three counts. The first and second charge, that the defendant spoke and published of and concerning the plaintiff the following words, viz.: “You stole a hog and I can prove it.” “You killed a negro and I will have you up for it.” The third count is for speaking the words, “You killed a negro and I will have you up for it.”

The defendant pleaded three pleas; 1, Not guilty. 2, The statute of limitations. 3, Justification as to the following words in the first and second counts, “ You stole a hog,” &c.

On the motion of the plaintiff, the Court rejected the third plea. Issues were made on the first and second. Ver-diet *for the plaintiff; motion for a new trial overruled; and judgment on the verdict.

On the trial, the plaintiff introduced witnesses to prove certain words spoken of him by the defendant to third persons, in his absence. The defendant objected, but the Court admitted the testimony. A charge of words spoken in the second person, is not supported by proof of words spoken in the third person. 2 Stark. Ev., 453. The Court, therefore, should have rejected the testimony.

The rejeotion of the third plea was also erroneous. The plea professed to answer a part only of the plaintiff’s cause of action, and that part it answered fully. It was not drawn with technical accuracy, yet it was not a nullity. It did not come within the rule which authorizes the rejection of a plea on motion. Gould on PI., 350.

J. B. Howe, for the appellant.

D. H. Colerieh and W. H. Coombs, for the appellee.

It further appears that, on the trial, a question evidently-leading in its nature, was put by the plaintiff to one of his witnesses. The defendant objected to the witness answering the question, but the Court overruled, the objection. In that the Court erred; but as the record does not contain the.answer of the witness, nor inform us whether he answered the question at all or not, we do not know whether the defendant was injured by it or not. If the witness did not give the answer which it was the design of the plaintiff to draw from him, the defendant has no reason to complain.

For the errors above mentioned, the judgment must be reversed.

Per Cwriam.—The judgment is reversed with costs. Cause remanded, &c.  