The opinion
But the CouRT refused, being of opinion that they were substantially different.
CRanch, J.
When the defendant means to prove other words spoken at the same time with those laid-in the declaration and which make the words laid, not actionable, then, in order to enable the defendant to bring testimony of those other words he must plead his justification specially. But if the plaintiff’s evidence proves words which justify the, defendant, or which show that the words charged ,are not actionable as spoken, there the defendant may take advantage of them without pleading specially. For the plaintiff must make a good cause of action, and if it appears from his own evidence that the words charged are not actionable as spoken, he fails to support his cause of action.
■ But Kilty, C. J., and Marshall, J., were of a different opinion.