Sumner v. Shipman

• Decision Date: 30 June 1871
• Citation: 65 N.C. 623
• Parties: JESSE SUMNER v. JACKSON SHIPMAN.
• Court: North Carolina Supreme Court

65 N.C. 623

JESSE SUMNER

v.JACKSON SHIPMAN.

Supreme Court of North Carolina.

June Term, 1871.

In an action of slander where the pleas are general issue and justification, the jury are not to consider the latter plea if they find the former one to be true.

Pleading general issue, and justification to an action of slander, does not dispense with the proving of the words spoken, nor is the latter plea an admission of the speaking of the words when the general issue has been pleaded.

Where several pleas are pleaded to the same cause of action, each is as separate and independent as if contained in different records.

Whitaker v. Freeman, 1 Dev. 271, cited and approved.

Action on the case brought under the old system, and tried before Cloud, J., at Fall Term, 1870, of BUNCOMBE Superior Court.

The plaintiff declared in two counts:

1st. That the defendant had maliciously prosecuted him for perjury, and without probable cause.

2d. That the defendant charged the plaintiff with having sworn to a lie, as a witness in a suit pending in the Superior Court of law of Buncombe County, where John Sumner was plaintiff, and Eli Ashly was defendant.

The defendant pleaded general issue, statute of limitations, justification. It is unnecessary to report the evidence.

His Honor, amongst other things, charged the jury that as to the plea of justification, if they should be of the opinion from the evidence, that the plaintiff told the truth on the trial of Sumner v. Ashley, then they would find for him. On the contrary, if they should find that what the plaintiff swore to was not true, and the words alleged to have been spoken were true, then the defendant had made out his plea of justification, and they would find for him on that plea.

The jury found, that as to the first count in the declaration the defendant was not guilty. That as to the second count the defendant was not guilty. Plaintiff appealed.

Baily, for plaintiff .

Phillips & Merrimon, for defendant .

BOYDEN, J.

The charge of his Honor, as to what would constitute a justification, if erroneous, could not have prejudiced the plaintiff, as the verdict for the defendant upon the plea of the general issue, precluded the consideration of the issue upon the plea of justification.

We would not be understood as intimating that his Honor's charge was erroneous upon that point, for, as we understand his charge, we are inclined to think it correct.

The counsel for the plaintiff insisted, that as the jury had not passed upon the plea of justification, he had a right to avail himself of the admission in...