¶1The opinion of the Court was delivered by
¶2As 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 nu*368mevous 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.
¶3I am of opinion, therefore, that a new trial should be granted.