Whitaker v. Freeman

• Citation: 12 N.C. 271
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 July 1827
• Parties: JONATHAN WHITAKER v. FREDERICK FREEMAN.

12 N.C. 271

JONATHAN WHITAKER

v.FREDERICK FREEMAN.

IN THE SUPREME COURT,

JULY TERM, A. D. 1827.

REGULÆ GENERALES.

It is ordered that in all appeal cases, whether on the law or equity side of the Court, the counsel for the appellant shall deliver to the counsel appearing on the other side, if any, a statement in writing of all the points intended to be made and relied on, at least eight clear days before the day of the argument of the cause; and any point or matter of objection to the judgment or decree below, not contained therein, shall be considered as waived, unless the Court shall, for sufficient reasons offered or appearing, allow or desire that such matter or point may be made and discussed.

And it shall also be the duty of the counsel for the appellant to furnish to each of the judges of this Court (at the least four clear days before the day of argument of any cause) a copy of the statement or statements delivered to the counsel on the other side.

Leaving with the clerk or his deputy for the counsel for the appellee, the statement required by this rule, will be a sufficient delivery to the counsel.

A true copy from the minutes.

Teste: WM. ROBARDS, Clerk.

APPENDIX.

OPINION OF MARSHALL, C. J., IN U. S.

CIRCUIT COURT.

1. Of several pleas, each is separate and independent as if contained in different records; therefore, where in an action for a libel the defendant pleaded not guilty and a justification, it teas held that the admission of the libel contained in the latter plea could not be used either to estop the defendant to insist on his denial or as evidence to prove the publication on the issue joined on the former plea.

2. A declaration for a libel must undertake to set out the very words; to give the substance and effect is not sufficient, and if, on the trial, the libel produced does not correspond with that set out, the plaintiff must fail, since no reason can be assigned why the plaintiff should not be required to prove what he is required to allege.

THIS was an action on the case for a libel, tried at the November Term, 1826, of the Circuit Court for the district of North Carolina, before the Honorable John Marshall, Chief Justice of the United States.

The declaration, besides the usual introductory averments of good character, etc., alleged a special inducement that the plaintiff was a Congregational clergyman and minister of the gospel, and that the defendant designed to defame him in that character, etc. The declaration then charged the publication of a libel in the form of a letter directed to one H. P., from which particular sentences were selected and stated in various forms, in twenty-five different counts, all exactly alike in the inducements, etc., and setting forth the libelous sentences extracted, not according to the tenor, but charging that the letter contained, amongst other things, "the false, scandalous, malicious, and defamatory matter following."

The libelous matter was charged in the different countsas follows:

1st Count. "He lived within 30 miles of my father. The reports of his frequently whipping his wife are well known there."

2. "He was in the habit of whipping his wife."

3. "It was said that he whipped his wife."

4. "It was notorious there that he was in the habit of whipping his wife."

5. "I have it from good authority that he has been guilty of giving his wife repeated whippings."

6. "He has been guilty of stealing wood."

7. "He has been charged with stealing wood."

8. "I have it from good authority that he has been guilty of stealing wood."

9. "I have it from good authority that he has been charged with stealing wood."

10. "If he has credentials with him, they are forgeries."

11. "If he has credentials with him, they are probably forgeries."

12. "If he has credentials with him, they are probably forgeries, or were given him to get rid of him."

13. "If he has credentials, they are forged."

14. "If he has credentials, they are probably forged."

15. "If he has credentials, they are probably forged, or given him to get rid of him."

16. "He is an impostor, and should not be countenanced."

17. "He is an impostor, and should not be countenanced as a teacher of youth or preacher of religion."

18. "He is an impostor, and should not be countenanced or employed as a teacher of youth or preacher of religion."

19. "He should not be countenanced as a teacher of youth or preacher of religion."

20. "He should not be employed as a teacher of youth or preacher of religion."

21. "He is an impostor, and should not be employed as a teacher of youth or preacher of religion."

22. "He is an impostor, and should not be countenanced or employed as a teacher of youth or moral instructor."

23. "My object in giving you information is that he may not be employed as a preacher of religion or instructor of youth."

24. "I give you information that he may not impose himself on other communities."

25. "You are at liberty to use this letter as you think proper, to prevent the people from being imposed on by him."

The declaration also contained a distinct set of counts, alleging the several libelous charges in this form: "they (innuendo, the plaintiff and one Daniel K. Whitaker) lived, etc.," in all other respects exactly like the first set. To this declaration the defendant pleaded, first, not guilty; and, second, the truth of the matters contained in the libelous charges as a justification.

On the trial, the letter being produced under a subpoena duces tecum, the material facts of it appeared to be in the following words:

"No sooner did I cast my eye upon that part of a former letter of yours, informing me of your being visited (infested, I should say) by two antitrinitarian preachers—a father and his son—than it was impressed upon my mind, Whitaker and his son are the men! The character of these men I know full well. They are from New Bedford, Massachusetts, which is within thirty miles of my father's house, and which place I have often visited—and visited this last fall. I never heard any good of them. I have heard from the best authority much evil. Not that they were capable of doing much hurt by preaching; they were considered by all as unfit to preach—as too immoral even to preach socinianism. The older man has been settled over the antitrinitarian church in New Bedford a number of years, and had also a school in that place until last spring or summer. Reports of his stealing wood, etc., whipping his wife unmercifully, and such like deeds had become so frequent, and his immoralities and infidelity so notorious, that his people (his church and congregation) were ashamed of him and were anxious to get rid of him. At length (his congregation have dwindled away to almost his own family) and the parish wishing to have another minister, agreed to give him $1,200 if he would release them from their obligation to support him, and clear out. He found this for his interest, and left N. B. These two men, no doubt, finding their character gone in Massachusetts, have come to these ends of the earth, hoping to impose upon the good people. The young man has probably taken up preaching since he left his native State. They may have recommendations from those who were willing to have them leave these regions, and cared not for what impositions they might practice elsewhere. Their testimonials, if they have any, may be forged. It is a pity they should be permitted to impose upon the people anywhere, either as preachers or schoolmasters. I consider them as dangerous men in either occupation.

"You are at liberty to show the above, as far as you may think proper."

It was insisted on the part of the defendant that the letter produced did not support any one of the counts, and that the plaintiff was not entitled to a verdict; while onthe part of the plaintiff it was contended that there was no material variance between the declaration and the letter,

and that if there was, the defendant, by his plea of justification, which admitted the publication of the libel as charged in the declaration, was estopped to deny the publication; or if he was not technically estopped, yet the admissions in that plea were evidence from which the jury upon the plea of not guilty must find against the defendant.

These points were fully argued by Gaston for the plaintiff and Badger for the defendant, when the Chief Justice expressed a wish that the trial should proceed, reserving these questions for his further consideration; upon which a verdict was taken for the plaintiff, with an agreement that if the court should be against the plaintiff on the matters reserved, the verdict should be set aside and a nonsuit entered.

The case was held under advisement until May Term, 1827.

MARSHALL, C. J. This is an action on the case, founded on a libel published by the defendant. He pleaded not guilty, and has also justified the words as being true.

At the trial the plaintiff gave in evidence a letter written by the defendant to his correspondent in Raleigh, for the purpose of being shown to others, which contains substantially the charges stated in the declaration, but in different language.

The plaintiff insisted at the trial: (1) That the plea of justification admitted the publication of the libel charged in the declaration, and dispensed with the necessity of proving it. (2) That the letter given in evidence supported the declaration. The jury found a verdict for the plaintiff,subject to the opinion of the court on the two points reserved.

1. On the first point the plaintiff produced cases to show that the plea of justification contains a formal admission of the words charged in the declaration, and would not be good without such admission. It must confess and avoid the charge.

He then insisted that this being a confession on record, was stronger than a confession made orally in the country, and estopped the party from denying it. In support of this last proposition he relied on the generally admitted dignity of record evidence, and cited Goddard's...