McKee v. Wilson

Decision Date31 October 1882
Citation87 N.C. 300
CourtNorth Carolina Supreme Court
PartiesGEORGE W. MCKEE v. THOMAS WILSON.
OPINION TEXT STARTS HERE

CIVIL ACTION tried on complaint and demurrer at July Special Term, 1882, of GASTON Superior Court, before Gudger, J.

The complaint consists of a series of counts or causes of action separately stated, and imputes to the defendant the utterance of slanderous words, both written and spoken, concerning the plaintiff, whereof the first and second charged the publication in the Gastonia Gazette of the libellous matter therein set out, and the others with verbal defamation.

As explanatory of the meaning and application of such words, the complaint alleges that the plaintiff was sheriff of the county of Gaston from the 31st day of July, 1868, until the 2nd day of September, 1872, and as such, collector of the public taxes during that period, including those levied for the last mentioned year, and that they were intended to charge, and do charge, (varying somewhat in phraseology in the different averments but in import substantially the same) the plaintiff with dishonesty and fraud in his settlement with the proper county officer of the taxes so collected, withholding a part thereof and corruptly appropriating the same to his own use.

It is not deemed necessary to set out in terms the defamatory language imputed in the several enumerated causes of action, since the essential charge in each is of corrupt and dishonest conduct in the office of tax-collector in failing to account for, and intentionally withholding moneys so collected and due the county, and fraudulently applying them to his personal use.

The defendant put in his answer to the two causes of action containing charges of the libellous publications, and demurred to the other causes of action imputing verbal slander, assigning as the grounds thereof:

1. That the words do not impute an infamous crime.

2. That it is not averred that the words were spoken of the plaintiff while in the exercise of his office.

3. The offence charged is barred by the statute of limitations and no prosecution will lie therefor.

4. There is no allegation of special damage.

The court on the hearing overruled the demurrer and allowed the defendant time to answer, from which judgment the defendant appealed.

Messrs. Bynum & Grier, for plaintiff .

Mr. G. F. Bason and Hoke & Hoke, for defendant .

SMITH, C. J., after stating the above.

It is well settled on authority that words spoken of a person in respect to his office or employment and actionable only by reason thereof, must be spoken, while he is holding such office or pursuing such employment, and not afterwards. 1 Stark. on Slander, 123. “It must appear,” says the writer, when the words were spoken of a barrister or physician, “that he practiced as such at the time the words were spoken,” and to the...

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23 cases
  • State v. Surles
    • United States
    • North Carolina Supreme Court
    • 20 Abril 1949
    ...that if the offense be "infamous, " it shall be punished as a felony, necessarily refers to the degrading nature of the offense, McKee v. Wilson, 87 N.C. 300, and not to the measure of punishment then being set down. It would be a misnomer or misdescription to speak of an infamous misdemean......
  • State v. Surles
    • United States
    • North Carolina Supreme Court
    • 20 Abril 1949
    ...that if the offense be 'infamous,' it shall be punished as a felony, necessarily refers to the degrading nature of the offense, McKee v. Wilson, 87 N.C. 300, and not the measure of punishment then being set down. It would be a misnomer or misdescription to speak of an infamous misdemeanor, ......
  • Elmore v. Atlantic Coast Line R. Co.
    • United States
    • North Carolina Supreme Court
    • 13 Mayo 1925
    ...matter in justification or mitigation. Osborn v. Leach, 135 N.C. 628; Ramsey v. Cheek, 109 N.C. 270; Harris v. Terry, 98 N.C. 131; McKee v. Wilson, 87 N.C. 300. Malice, which an essential element of slander, is, generally speaking, presumed where the words are actionable per se, until the c......
  • Oates v. Wachovia Bank & Trust Co.
    • United States
    • North Carolina Supreme Court
    • 28 Junio 1933
    ...and not per se. Deese v. Collins, 191 N.C. 749, 133 S.E. 92; Payne v. Thomas, 176 N.C. 401, 97 S.E. 212; Gudger v. Penland, supra; McKee v. Wilson, 87 N.C. 300; Pegram v. Stoltz, 76 N.C. 349; Hurley Lovett, 199 N.C. 793, 155 S.E. 875; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; note, 12 Am.......
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