Smullen

This is an appeal from an order granting plaintiff’s motion for a new trial.

The action is slander, and the words charged in the original complaint as having been spoken by the defendant of and concerning the plaintiff are: “He is a thief.” These words impute to the plaintiff, a crime punishable by law, and are therefore actionable per se.

At the trial, the witness for plaintiff testified that the words used by the defendant, at the time and place alleged, were as follows: “That thieving son of a -, he stole two thousand five hundred dollars from me, and I can prove it.”

This testimony was, on motion, stricken out, on the ground of variance, and the plaintiff, after excepting to the ruling of the court, moved for- and obtained leave to *410 amend his complaint by inserting the words of the witness in lieu of those originally declared on.

The defendant, in his answer, specifically denies the material allegations of the amended complaint, and, among other matters of defense, avers that the alleged cause of action set out therein is barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure.

The trial was then proceeded with by the plaintiff…