McDougle et al. v. Gates et al. MCDOUGLE et al. v. GATES et al. PLEADING.—An answer setting up, in bar of a whole cause of action, a matter which constitutes a bar to only a part of it, is bad. For forms of answers and replies in such case, see the opinion at length. DISCONTINUANCE-WAIVER.-An appearance, after a discontinuance, waives it; and the taking of final judgment for the unanswered part of a cause of action, at any time during the term, will prevent a discontinuance, if such judgment be taken before the entry of judgment of discontinuance. APPEAL from the Decatur Circuit Court. PERKINS, J.-Suit upon a note. The defendants answered, nominally, in bar of the whole complaint, that, "as to all of said sum of money sued for, except 100 dollars, they fully paid the same, before the commencement of this suit, viz: on the 10th of December, 1860." This answer purported, in its commencement, as we have said, to go in bar of the whole cause of action, when the facts set forth in it were only a bar to a part of it. For this reason, the answer was bad. The answer might have been thus: The defendants come, and for answer to all of the plaintiffs' cause of action, except the sum of 100 dollars, they say they have paid, &c. The plaintiffs, however, did not demur, but replied, in denial, without craving judgment for the answered part, viz: "The plaintiffs, for reply, deny that any part of said note has been paid." The reply might have been thus: The plaintiffs, as to all of their cause of action which remains unanswered, viz: the sum of 100 dollars, pray judgment, and as to the answer to the balance of said cause of action, they deny each and every allegation contained therein. The next entry after the reply in denial is this: "And thereupon this cause is submitted to the Court for trial." VOL. XXI.-5. Carmichael v. Shiel. After this was done, the record says "the defendants entered a special appearance for the sole purpose of moving the Court to enter a judgment of discontinuance herein," but the Court overruled the motion, heard the cause, and rendered final judgment for the whole cause of action sued on. The appellants cite, to show that the cause was discontinued by the failure of the plaintiffs to pray judgment for the part of the cause of action unanswered by the answer. 3 Black. Comm. 296; Steph. on Pl. 216; Bouvier's Dic. p. t.; Hope v. Acher, 7 Abb. (N. Y.) Rep. 308; Bacon's Abr. vol. 7; Tit. Pleading; 8 Blackf. 89; Rose v. Comstock, 17 Ind. 1. We may cite, in addition, to the point that a general appearance, after a discontinuance, waives it, Clark v. The State, 4 Ind. 268; and to the point that taking final judgment for the unanswered part of the complaint, at any time during the term, may prevent a discontinuance, if such judgment be taken before the entry of judgment of discontinuance, Bayless v. Tousey, 20 Ind. 151. Per Curiam.-The judgment below is affirmed, with 1 per cent. damages and costs. John S. Scobey and Will. Pound, for the appellants. 21 66 140 683 21 66 150 101 CARMICHAEL v. Shiel. CASE DOUBTED.-The case of Cromwell v. Wilkinson, 18 Ind. 365, as to effect of remission by the plaintiff of a part of the damages recovered, is left open for reconsideration. PRACTICE IN THE SUPREME COURT.-Where the bill of exceptions states the order of events in the trial of a cause differently from Carmichael v. Shiel. the journal entry on the record of the Court, the former must govern, so far as the record in this Court is concerned. SLANDER.-Where the persons who hear a charge of larceny, complained of as slanderous, know the transaction referred to in the charge, know that that particular transaction is the one referred to as the ground of the charge, and know that that transaction was not larceny, no action for slander can be maintained; but, if the hearers understood the defendant to repeat the charge, without reference to the transaction as understood by them, and upon what he might assume to know beyond their knowledge, then the words might constitute a slanderous charge. APPEAL from the Marion Circuit Court. PERKINS, J.-Margaret Shiel sued Jesse D. Carmichael, alleging that he had charged her with stealing certain of his dishes from the Palmer House, and maliciously prosecuted her upon the charge. Carmichael answered, the 'general denial, justification, and other paragraphs, setting out all the facts specially. Issues were properly formed. The cause was tried by a jury, who returned a verdict of 1,000 dollars for the plaintiff. A motion for a new trial was made; and, says the journal entry of record, the plaintiff thereupon remitted 300 dollars of the damages, whereupon the Court overruled the motion for a new trial, and rendered judgment against the defendant for 700 dollars; and counsel, in their brief, say they made the remission to prevent the granting of a new trial. If this were so, it would constitute, according to Cromwell v. Wilkinson, 18 Ind. 365, an error for which we might reverse the judgment. The practice is different in Ohio. Wright's Rep. pp. 227, 705. The ruling in Cromwell v. Wilkinson would seem to be correct on principle; yet as there are authorities the other way, the point had better be left open for reconsideration. But the bill of exceptions states the order of events differ Carmichael v. Shiel. ently from the journal entry, and makes the remission the voluntary act of the plaintiff, after the motion for a new trial had been overruled. The bill of exceptions must govern, so far as the record is concerned. See Doe v. Smith, 1 Ind. 451. We might, perhaps, act upon the admission of counsel, though in this case the question is unimportant, as will appear by what we have further to say in this opinion. On the trial, the Court instructed the jury, that there were cases of slander in which it was proper for the jury to give vindictive damages. Whether this instruction is correct, deserves to be gravely considered. It has not been discussed by counsel in this case, and we shall express no opinion upon it. See Cromwell v. Wilkinson, 18 Ind. 365, on page 369. The branch of the plaintiff's suit, which complained of a slander, arose in this way: Margaret Shiel was in the service of Mr. Carmichael, the landlord of the Palmer House, in Indianapolis. While so in his service, she broke certain dishes belonging to the house. Mr. Carmichael deducted the price of the dishes thus broken from Margaret's wages, and she acquiesced in the deduction. Soon afterward, Margaret, openly, in the daytime, took the fragments of the broken dishes, and carried them away, claiming them as her property, as she had paid the full price of them, as if they had been unbroken. Mr. Carmichael then went before Mr. Justice Fisher, and instituted a prosecution against Margaret for larceny. The case was heard before Esquire Fisher, and he discharged Margaret, holding the taking of the dishes, under the circumstances, not to be larceny. Immediately after the discharge by the justice, and whilst the parties were still in the office, (Margaret, however, being near the exit door,) Mr. Carmichael advanced toward her and said, "Now I want you to bring back the dishes you stole from my house." From the evidence in the case, it is not clear whether any one, except the persons Carmichael v. Shiel. who had heard the evidence on the trial, heard Mr. Carmichael's words or not. The words thus used are the ground of the paragraph for slander in this suit of Margaret against Carmichael. In reference to this branch of the case, the defendant, at the proper time, upon the trial, asked the Court to give this instruction to the jury, and the Court refused it, the defendant excepting: "If the plaintiff has proved the speaking of any one set of the words laid in the complaint, and such words were spoken immediately after the trial of Margaret, before Justice Fisher, and she, the plaintiff in this suit, had been acquitted of the charge, and all the persons there present, and hearing the words spoken by defendant, Carmichael, had heard the evidence on said charge of larceny, and the words so spoken by defendant referred to the same dishes named in the affidavit on which the plaintiff was tried, and the taking, charged on the plaintiff, did not amount to a larceny, and so the persons, present and hearing the words spoken by defendant, knew and understood, the speaking of the words by the defendant was not slanderous." The instruction was applicable to the evidence, was not embraced in any instruction given, and if law, should have gone to the jury. We think the instruction expressed the law. We think the spirit of the authorities may be thus expressed on this point: Where the persons who hear a charge of larceny, complained of as slanderous, know the transaction referred to in the charge, know that that particular transaction is the only one referred to as the ground of the charge, and know that that transaction was not larceny, but simply innocent, or a trespass, no action for slander can be maintained. The charge is a mere misnomer, in a legal point of view, of a transaction, but conveys no charge of crime to the public ear, in no manner puts the person charged in peril of the consequences of |