
    Walter Taylor against William Sturgingger.
    Where there “de&wkey;t¡m,oi!2 good and one bad, ferred to the good
    p“100f'™Ieivesthft they were spoken before or after ¡fought, ?ac£S? If in an action trial will granted. be
    This was an action of slander, and the declaration contained two counts: the first charged that defendant said of plaintiff, “ he has killed my hogsmeaning that plaintiff had stolen defendant’s hogs; and to support this count, a numher of witnesses were called, who proved that L defendant had frequently complained that plainrr,-, i Ihe second tiff and others had killed his hogs, count charged the defendant with having said of plaintiff, that “ he stole my hogsand to this, one Glover was the only witness, who proved these words, and, upon being questioned, declared he did not know whether the words were spoken in the beginning, middle, or end of February. It appeared that the writ was issued on the 14th February, 1809, and the words were laid ,as spoken on the 25th January.
   The opinion of the Court was delivered by

Mr. Justice Grimke.

As to the first point, it has been already frequently decided by this Court, that where there are two counts in a declaration, one good and one bad, and the Jury find a general verdict thereon, that it shall be applied to the good count. The practice which prevails in England of a Jury finding, specially on a particular count, has never been introduced, ip this state, and after the numevous decisions we have had on this point, this Court, I am persuaded, will not easily lean to an alteration of the principle. With respect to the count, it does not appear that the proofs exhibited of the time the words were spoken, were precise enough to have warranted any verdict against the defendant. The action was not commenced until the 14th February, and it was the bounden duty of the plaintiff to prove positively that the words were spoken before that period; whereas the testimony of Glover was, that he did not know whether it was before or after that period that he heard the words spoken by defendant. If they were used after the commencement of the suit, unquestionably this action could not lie.

I am of opinion, therefore, that a new trial should be granted.

Colcock, JYott, Cheves, Gantt, and Johnson, J. Concurred.  