Battle v. Howell, 27 N.C. 378, 5 Ired. 378 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 378, 5 Ired. 378

WILLIAM W. BATTLE vs. EVAN S. HOWELL.

The court takes nothing for a declaration but a declaration; and takes no notice of any practice to the contrary, farther than that the knowledge of such an understanding between the parties or their attorneys, in a particular case, may induce the court, in which the suit pended, to be very liberal in allowing the attorney of the successful party to make up the record, after the trial, in respect to the pleadings as well as the other matters, so as to effectuate the justice of the case, as it appeared in-truth to be on the trial, j

Appeal from the Superior Court of Law of Haywood county, at the Spring Term, 1845, his Honor Judge Manly presiding.

This was an action for slanderous words spoken. It is stated, in an exception taken by the defendant, that the pleadings were not drawn out at large before the trial, but that by consent of the attorney an incipitur was filed instead of a declaration, and a memorandum entered on the docket, instead of the pleas, as follows: “ General issue, statute of limitations.” The memorandum by the plaimtiff’s attorney was in these words: “ That the defendant said of the plaintiff ‘ he swore to a false account. He swore to a false account against me. He raked up a false account and swore to it against me. He is a dangerous man, and raked up a false account against me, and swore to it’ — being a charge of perjury, with the necessary inuendoes, and in the different forms.”

On the trial it was objected on the part of the defendant, that the memorandum of the words was not sufficient, because it did not contain a colloquium and proper inuendoes. On the part of the plaintiff it was contended, that this was" according to the practice, when a formal declaration was not required before the trial. The court permitted the trial to proceed; and, upon the evidence, the jury found for the plaintiff on all the issues, as if they had been formally joined. The plaintiff’s attorney then had the record made up in due form, inserting therein a proper declaration, and he entered a judgment according to the verdict. From that the defendant appealed.

Badger for the plaintiff.

Francis for the defendant.

Ruffin, C. J.

Whether the memoranda, which were delivered and accepted instead of the declaration and pleas, conformed. to the practice or not, the court does not undertake to determine. If there be any practice upon the point, it is a practice, not established by the court, but by the attorneys, and it is entirely between them. The court takes nothing for a declaration but a declaration; and takes no notice of any practice to the contrary, farther than that the knowledge of such an understanding between the parties or their attorneys, in a particular case, may furnish an inducement to the court, in which the suit pended, to be very liberal in allowing the attorney of the successful party to make up the record, after the trial, in respect to the pleadings as well as other matters, so as to effectuate the justice of the case, as it appeared in truth to be on the trial. If the defendant’s attorney was not satisfied with the memorandum, as a declaration, he had nothing to do but to require a declaration. But, declining to do that, he insisted that the court should determine, whether the in-cipitur^ as such, was good, according to the understanding between the attorneys themselves, which was a thing with which the court had nothing to do, and, legally, could have nothing to say.

Still less can this court act upon any such ground. As ail appellate tribunal, our view of the pleadings is restricted to the record as made up. According to the transcript sent here, the plaintiff did file a declaration, with a proper colloquium touching a judicial proceeding before a justice of the pease, upon a warrant between the present parties, and the examination of the plaintiff as a witness upon the trial thereof under the book debt act, with inuendoes, pointing the words of the defendant to the plaintiff, and an averment that he intended thereby to charge the plaintiff with having committed the crime of perjury on his examination. To the declaration in the record, the defendant’s counsel here takes no exception ; and, indeed, he admits that none can be taken. Therefore, as it appears to this court, every thing was regular from the beginning; and there was no ground in fact for the objection taken in the Superior Court for the defendant. Consequently, the judgment must be affirmed.

Per Curiam, Judgment affirmed.