The opinion
CRANCH, Circuit Judge.
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 special; ly. 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, Chief Judge, and MARSHALL, Circuit Judge, were of a different opinion.