Opinion
(June Term, 1829.)
1. The jury should by their verdict respond to the issues joined between the parties, and they can not negative a fact admitted by the pleadings.
2. Where the defendant, in an action for words, pleaded that they were spoken more than six months before the commencement of the suit, and the plaintiff replied "infancy at the time of speaking the words and bringing the suit," a verdict that the words were spoken within six months before the writ sued out was held to be ill, and a venire de novo awarded.
3. A plaintiff is not permitted to reply several matters to any plea, except that of a set-off.
4. Several replications to a plea of set-off are allowed.
CASE for slanderous words spoken by the defendant of the plaintiff.
Gaston and Badger for the appellant.
(88) Devereux, contra.
FROM BURKE.
The writ was returnable to the fall term of 1822, when a memorandum of the following pleas was entered by the defendant: "Not guilty," and "the action was not brought within six months after the words were spoken." At March Term, 1827, the plaintiff replied specially to the statute of limitations that "she was, at the time of speaking the words mentioned in the declaration, an infant, and continued so to the bringing of this suit."
On the last circuit, before his Honor Judge MANGUM, a general verdict was returned for the plaintiff upon the plea of "not guilty"; and upon that of the statute of limitations, the jury returned that "the words were spoken before the issuing of the plaintiff's writ, and within six months thereof." Upon this verdict judgment being rendered for the plaintiff the defendant appealed.
This is an action on the case for slanderous words. The defendant pleaded "not guilty," and "statute of limitations." To the first plea no replication was entered; but according to our practice a general replication is always understood when there is no special replication; and it is considered that issue was joined thereon.
The second plea, of which the foregoing memorandum was made on the docket, is "that the action was not brought within six months after the words were spoken." To this latter plea there was a special replication "that the plaintiff was, at the time the words were spoken, an infant under the age of twenty-one years, and so continued until the bringing of the suit," and issue was taken thereon. By this replication the fact set forth in defendant's plea is not denied; it is thereby virtually admitted that the cause of action did not accrue within six months before the bringing of the suit; but the plaintiff confesses, and avoids it by replying infancy.
To try these issues a jury was empaneled who found "the defendant guilty of speaking the words charged in the plaintiff's declaration, and that they were spoken before the issuing of the plaintiff's writ, and within six months." To the second issue the jury did not respond, but contradicted by their verdict a fact which was confessed by the pleadings. That the words had not been spoken within six months before the bringing of the action was not denied by the pleadings. The jury was empaneled to try the issue of infancy — to inquire whether the plaintiff was an infant under the age of twenty-one years when the words were spoken, and so continued until the bringing of the suit. To this issue there was no response. The verdict should be set aside and a venire facias de novo awarded. (89)
The special replication to the plea of the statute of limitations was not entered until several terms had elapsed after the plea had been pleaded. A general replication was then understood to have been filed to this plea; and a special replication could not have been subsequently entered, unless with leave of the Court, by motion to amend the pleadings. The entering of the special replication was a waiver, or abandonment of the general replication; for the rules of pleadings forbid two replications to the same plea, except to the plea of set-off, which is in its nature a new action — a statutory substitute for a cross-action. And as the defendant may, by our court-law, "plead as many several matters as may be necessary to his defense," should he, instead of bringing a cross-action, avail himself of his statutory privilege, and plead a set-off, the plaintiff would be permitted to make the same defense to the plea, as he could have made to the action. And as he could plead several matters he must be permitted to reply several matters. Worth v. Fentress, 12 N.C. 419.
PER CURIAM. Venire de novo Cited: S. v. Moody, 98 N.C. 672.