Horton v. Banner
| Decision Date | 22 February 1869 |
| Citation | 69 Ky. 596 |
| Parties | James Horton v. Margaret E. Banner. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MORGAN CIRCUIT COURT.
HAZELRIGG & ELLIOTT, WM. H. HOLT, For Appellant,
J. E. COOPER, For Appellee,
This was an action of slander by appellee against appellant for accusing her with the crime of perjury in testifying in a certain action before a justice of the peace; to which appellant set up the defenses of not guilty and of justification.
On appellee's motion, and over appellant's objection, the court put him on his election as to which defense he would abide, when he elected to stand on not guilty.
At a subsequent term the plaintiff filed an amended petition, correcting a misdescription of the parties litigant in the justice's court wherein she testified, and to this defendant responded a plea of not guilty within one year before the filing of said amendment, also a justification; when plaintiff again moved and obtained a rule, notwithstanding defendant's objections, to put him on his election as to which one of his several defenses he would select, and he elected to stand on the plea of justification. To all of these rulings proper exceptions were taken.
On the trial the plaintiff was permitted to give in evidence her good character over the defendant's objections, and the jury having returned a verdict for five hundred dollars, which the court adjudged, and refused a new trial, the defendant has appealed.
By the principles of the ancient common law, says Chitty on Pleadings, but one plea could be set up as a defense, which was altered by the statute of 4th and 5th Anne.
In 12th American from 6th English edition of 1 Chitty on Pleadings, page 562, it is said: "With the above exceptions, the defendant may in general, in different pleas, state as many substantial different grounds of defense as may be thought necessary, though they may appear to be contradictory or inconsistent;" and this case is not within his enumerated exceptions.
By our statute of 1796 (1 Morehead & Brown, Statute Laws, sec. 24, p. 325) it was enacted that "the plaintiff in replevin, and defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defense."
In Roberts v. Tennell, 4 Litt. 287, in an action of replevin by Tennell v. Roberts and Hain, the latter made cognizance by acknowledging the taking of the horse, but justified under a distress warrant for rent in arrear, and owing by Tennell to Roberts; to which the former pleaded: first, that he did not enjoy or hold as tenant the tenement and appurtenances, in cognizance of Hain mentioned, under any demise from the defendant Roberts; second, that no part of the supposed rent in the said cognizance mentioned was in arrear from him to said Tennell.
This court held that the objection to said pleas would have been availing by the ancient common law but for a provision of said statute authorizing as many pleas, either of law or fact, as the party may deem proper.
In Jones v. McDowel, 4 Bibb, 188, in an action for slander, McDowell laid two counts in his declaration. To the first the defendant demurred, and pleaded the general issue; and special...
To continue reading
Request your trial