
    Jesse Wright, plaintiff in error, vs. Martin A. Britton, defendant in error.
    
      Error to Van Barm.
    
    Whore a declaration in slander, contains two or more counts, charging slanderous words to have been spoken at different times, and the words charged in one count, are proved to have been spoken on the very day laid in that count; if the defendant proves a justification for speaking the same, the words contained in a second count, if spoken in August previous to those alleged and proven in the first, will not support the action of slander.
    This was an action of slander instituted by Martin A, Britton against Jesse Wright. A trial was had at the September term 1842, and a verdict and judgment rendered for the plaintiff, for twenty dollars damages and costs.
    To reverse this judgment the defendant below has brought up the cause by a writ of error.
    The exceptions to the action of the court below are embodied in the opinion of the court here.
    
      Hall, for plaintiff in error.
    Weight, for defendant in error.
   Per Curiam,

Mason, Chief Justice.

The errors assigned in this case all rest upon the following bill of exceptions :

Be it known, that on the trial of this case the defendant asked the court to instruct the jury, that if the defendant has given evidence proving slanderous words spoken on the day laid in the declaration, that, words spoken in August previous to the time laid in the declaration could only be evidence to be considered by the jury as evidence of malice, and that if they found the defendant justified in speaking the words on the day laid in the declaration, that the jury could not find the defendant guilty of the former speaking. Which instruction the court refused, but instructed the jury that they might find the defendant guilty of the former speaking, provided the words were charged in the declaration and in another count.”

The instruction of the court which is here excepted to, we understand to be substantially as follows : “ That where a declaration in slander, contains two or more counts, charging slauderous words to have^been spoken at different times, and the words charged in one count are proved to have been spoken on the very day laid in that count, if the defendant proves a justification for speaking the same, then words contained in a second count, if spoken in August previous to those alleged and proven in the first, will not support the action of slander.”

As this case is submitted without argument, and as we see no ground for the position assumed by the plaintiff in error, we shall content ourselves with simply affirming the judgment of the court below.  