Andrus v. Harris

In our opinion the third defense is good as a partial defense, as it alleges facts which may be considered a provocation for the utterance claimed to be slanderous. The fifth defense is not good, because the matters alleged are neither matters of provocation, nor are they shown to have been brought to the knowledge of the *565defendant before the utterance alleged to be slanderous. Judgment should, therefore, be modified so as to sustain plaintiff’s demurrer to the fifth defense, with leave to amend upon payment of costs of the demurrer. Only one bill of costs, however, is to be charged the defendant for the privilege of amending, if the defendant shall avail himself of the right to amend the second and fonr.th defenses under the privilege granted him in the original judgment. As thus modified the interlocutory judgment is affirmed, without costs of this appeal.

All concurred, except Kellogg, J., who considered the fifth defense proper in mitigation.

Interlocutory judgment modified as per opinion, and as so modified affirmed, without costs of this appeal.