Powell v. Cobb, 56 N.C. 1, 3 Jones Eq. 1 (1856)

Dec. 1856 · Supreme Court of North Carolina

56 N.C. 1, 3 Jones Eq. 1

THOMAS B. POWELL against SAMUEL M. COBB and others.

Where “ impertinent” matter is introduced into the pleadings, it is, according to the course of the Court, to be stricken out at the expense of the party introducing it.

No matter is impertinent, however scandalous it may be, or however much it may tend to degrade, provided it bears upon the point about which the parties are at issue.

Appeal from an interlocutory order of the Court of Equity of Caswell County, made by bis Honor, Judge PERSON, directing certain parts of the defendants’ answer to be expunged for scandal, impertinence and irrelevancy.

The bill was filed by the plaintiff, alleging that one Joel Cannon, the father of his late wife', Annie, by a deed in trust, dated in 1829, had conveyed to trustees certain negro slaves mentioned therein, for the sole and separate use and benefit of his said wife; that his wife had died, and that there was a surplus of the hires and profits of the slaves in the hands of the trustees, to which the wife was entitled at the time of her death, and which ought to have been received'by her administrator (one of the defendants) and' paid over to him. The trustees originally appointed in the deed in trust having removed from the State, the defendant Gunn was substituted in their place by the Court of Equity of Caswell county, and this suit is brought against him and the administrator of his late wife, praying an account of hires and profits of the slaves during the life-time of Mrs. Powell, and that the same be paid over to him jwre mariti. The plaintiff, in his bill, further alleges, that the defendant Samuel M. Cobb, by false pretenses and imposition, had prevailed upon him to sign a paper, purporting to be a release of his right to the hires and profits of the slaves in question, but he insists that the same is void on account of the fraud practiced upon him, and he prays that it may be surrendered to be cancelled. The children of Annie Powell, to whom the slaves are limited in remainder after the death of their mother, and who, it was understood, were setting up claim to this fund, were made parties defendant also.

The answer sets forth, at large, the deed in trust, made in favor of Mrs. Powell by her father, and contends that by a proper construction of the same, neither the slaves nor their hires, or profits, could go over to the plaintiff; and that the plaintiff ought not to have the .said slaves for other reasons, to wit: that he had abandoned his family and taken up with women of ill fame ¡ that at one time he had left his wife and children for eighteen months and gone to Louisiana, not ha/o-ing made any provision for them ; that the plaintiff was dissipated, careless, and wasteful, and was, a spendthrift; that he had beaten his wife with a horsewhip, and that a certain negro woman, named Peggy, had often protected her mistress from the brutal violence of the plaintiff. The answer further states, that the release which the plaintiff had made, was fair and bona fide, and that he never heard of any dissatisfaction about it, until the plaintiff had married one of his kept mistresses, when he became very anxious to get a negro to wait on his wife, and her children who had the misfortune to be born out of wedlock.

Tbe plaintiff’s counsel filed exceptions to tbe defendants’ answer, setting forth certain portions thereof as scandalous, impertinent and irrelevant, and specifying tbe matter above stated in italics as that excepted to.

His Honor referred the exceptions to a commissioner who reported, that the matter above specified, was scandalous, impertinent a/nd irrelevant. On motion, the report of the commissioner was confirmed, and the said matter was ordered to be expunged from the record.

From this interlocutory order, the defendants prayed an appeal to the Supreme Court, which was allowed.

Bailey, for plaintiff.

Morehead, for defendants.

PbaesoN, J.

Where impertinent matter is introduced into-the pleadings, it is, according to the course of the Court, to be stricken out at the expense of the party. This rule, and that requiring the pleadings to be signed by a solicitor of the court, is adopted for the purpose of excluding “ scandal” and protecting a party litigant, from having his reputation assailed, or his feelings wounded, when the occasion does not call for it; and for the further purpose of relieving the Judge from that prej udice which such matter is apt to produce upon the best regulated mind, whereby it may, unconsciously, (and there is no telling to what extent) be influenced and drawn off from the merits of the case.

No matter is impertinent, however scandalous it may be, or however much it may tend to degrade, provided it be relevant and bear upon the point, about which the parties are at issue.

These principles are agreed on, and the only question made at the bar was as to the application.

It was conceded by Mr. Bailey for the plaintiff, that if the scope of the bill had been to call in question the legal effect of the deed of trust, executed by Joel Cannon, by denying that the trust was for the sole and separate maintenance of the plaintiff’s wife, and setting up a right to the property in himself jure marii/i, then the allegations of the answer, which are excepted to, would have been relevant, and had a bearing upon the question of construction; ]out he insisted that as the bill expressly admits that the property was conveyed for the sole and separate use of the plaintiff’s wife, and seeks only to set up a claim, on the part of the plaintiff, to such portion of the profits and hires as remained unexpended and unappropriated by the wife at the time of her death, and which has been, or ought to have been, received by the defendant Samuel M. Cobb, as her administrator, presenting a dry question of legal right, all the matter set forth in the answer in respect to the domestic relations of the plaintiff, is impertinent.

To this position, Mr. Morehead, for the defendants, was unable to give any satisfactory reply. We are entirely satisfied that this matter was introduced for the purpose of creating prejudice against the plaintiff and his cause, under the idea, that as he and his wife did not live happily together, he ought not to be allowed to claim the remnant of her estate, but should permit it to be enjoyed by their dutiful children.

There is no error. The interlocutory order of the Court below is affirmed. This opinion will be certified.

Per Curiam. Decree below affirmed..