¶1delivered tlie opinion of the court.
¶2This is an action to recover damages for an alleged slander.
¶3The petition charges that the defendant spoke of and concerning the plaintiff the following words: “ David Coble is a rogue, and he had stole Hoover’s hogs.”
¶4The defendant, in his answer, denies having spoken the words contained in the first count of the petition, and attempts to justify as to the words in the second count.
¶5The petition in this case contains but one co'unt, and the answer must be regarded as both a denial of the words alleged to have been spoken and a justification of those words. Such a defence cannot be made. The defendant must confess the matter stated in the petition and avoid it, or he must traverse it.
¶6Having denied speaking the words, he will be held under the present state of the pleadings to that defence. . The court below, therefore, erred in permitting any evidence to be given upon the subject of justification.
¶7As the cause must be remanded, and the pleadings may be materially changed, it is deemed proper here to state that so much of the testimony given upon the trial as relates to statements made by Elias Boyers, when the defendant was not present, is merely hearsay, and therefore clearly inadmissible.
¶8the judgment will be reversed, and the cause remanded.