Action for slander. The complaint is composed of three counts. The first charges, in substance, that the defendant maliciously and falsely spoke and published of and concerning the plaintiff, in the presence and hearing of one R M. Rockholt, at a specified time and place, that he (defendant) believed that plaintiff stole a certain hog then in plaintiff’s possession, thereby meaning and intending to accuse the plaintiff of being guilty of grand larceny; and that said Rockholt so understood the words spoken. The second count is in substance the same as the first, except that the speaking and publication were at a different time and place, and in the presence and hearing of a different person, viz., one J. R. Young. The third count charges that defendant, in the presence and hearing of said J. R. Young, accused plaintiff of having stolen a certain halter strap, intending thereby to cjiarge plaintiff with being guilty of >petit larceny, and being so understood by Young, etc.

The answer of the defendant is, perhaps justly, criticised on the ground that it does not specifically nor unqualifiedly deny the speaking or publication of the words alleged to have been spoken; but as there was no demurrer to the answer, and as the cause appears to have been tried, as if the denials were sufficient, it is unnecessary to consider this point.

In addition to denials, the defendant alleged in his answer the following:

The verdict of the jury and the judgment of the court were in favor of the defendant. The plaintiff moved for a new trial on the grounds of insufficiency of the evidence, that the verdict is against law, and errors in law. The court granted a new trial, but upon what ground the record does not show. The appeal is from the order granting a new trial.

Counsel for appellant says in his brief that the new trial was granted solely on the ground that the court *106 erred in giving the following instruction, at request of defendant:

Counsel for appellant further says in his brief that in granting the motion for a new trial the court said: “ That if said instruction is correct law, it provides a new mode of justification, and that a defendant may justify a slanderous charge without proving its truth. . . . . Besides, I find no evidence in the statement showing that plaintiff confessed to the defendant that he stole either the hog or the strap. This instruction, therefore, constitutes an error, which must be deemed prejudicial to plaintiff, and it is by reason of this error alone that I shall grant a new trial.”

Counsel for respondent does not deny that the court used this language, but contends not only that the giving of this instruction was error, but also contends that the order granting a new trial is justifiable on other grounds, and especially on the grounds that the evidence was insufficient to justify the verdict of the jury, and that the court erred in striking out plaintiff's evidence of his good character.

Without deciding as to the merits of the instruction in question as an abstract proposition of law, I think *107 the court was right in saying it was not applicable to the evidence, and yet might have been prejudicial to plaintiff.

The order appealed from is affirmed, with leave to the defendant to amend his answer if so advised.