Snow v. Witcher. ing himself of the Act of Assembly allowing appeals, without security for costs, appeals without hope. PER CURIAM. Ordered to be certified that there is no error in the record. HULDAH SNOW vs. WILLIAM J. WITCHER AND WIFE. In an action of slander, when the charge is made directly, the plea of justification should aver the truth of the charge, as laid in the declaration; but when the charge is made by insinuation and circumlocution, so as to render it necessary to use introductory matter to shew the meaning of the words, the plea should aver the truth of the charge, which the declaration alleges was meant to be made. In an action of slander, by a single woman, under the Act of 1808, Rev. Stat. Ch. 110, where the words charged were "that she had lost a little one," "Z.'S. is a credit to her," the said Z. S. being notoriously an incontinent person, and, "she better be listening to the report about herself losing a little one ;" Held, that it was sufficient for the defendant to plead and prove that the plaintiff was an incontinent woman. Appeal from the Superior Court of Law of Surry County, at the Fall Term 1848, his Honor Judge MOORE presiding. This is an action on the case, under the Act of 1808, for a charge of incontinence. The first count alleges, that the defendant Judith, who is the wife of the other defendant, made the charge by using the words: "she had lost a little one." The second count by using the words: "Zilphy Sims is a credit to her," Zilphy Sims being a woman, whose general character was that of a base, lewd and incontinent person. The third count, by Snow v. Witcher. using the words: "She better be listening to the report about herself losing a young one." The defendants pleaded justification, and, on the trial, introduced a witness, who swore that he had, on several occasions, had criminal intercourse with the plaintiff. The Court charged, that the plea of justification should aver the truth of the charge, as laid in the declaration, and that this evidence, if believed, did not establish the plea. There was a verdict for the plaintiff and the defendants appealed. No counsel for the plaintiff. PEARSON, J. Assuming that the declaration contains a colloquium and introductory matter, sufficient to warrant the inuendoes, we think, the Judge erred in holding, that the evidence, if believed, did not make out a justification. When the charge is made directly, the plea should aver the truth of the charge, as laid in the declaration; but, when the charge is made by insinuation and circumlocution, so as to make it necessary to use introductory matter to give point to and show the meaning of the words, the plea should aver the truth of the charge, which the declaration alleges was meant to be made. If the words are “Brittain is as deep in the mud, as Welch is in the mire," and the declaration, with proper introductory matter, alleges, that these words were meant to make a charge of passing counterfeit money, the plea should aver, that the plaintiff was guilty of passing counterfeit money. In this case, the declaration alleges, that the words used were meant to make a charge of incontinence, and the plea should aver, that the plaintiff was incontinent, which averment would be fully proved, by the evidence of the defendants' witness, if believed.. His Snow v. Witcher. testimony, if true, showed that the plaintiff was not one of those "innocent," chaste women, whose "unsullied purity" the recital declares it was the intention of the Act to protect. But it is insisted, that the words: "she had lost a little one," not merely charge, that the plaintiff was incontinent, but that she had brought forth a bastard child, and that the plea should aver this fact, and the evidence show it to be true. Conception and delivery are the mere effects of nature -there is no harm in them "per se." The guilt lies in the criminal intercourse, which is made neither greater nor less by the collateral circumstances of conception and delivery, although these circumstances may be considered unfortunate, as leading to detection and exposure. Criminal intercourse is the gist of the charge, and is all that the plea need aver, or the evidence establish. The learned Judge erred in holding, that conception and delivery, which are in themselves innocent, constitu ted a part of the substance of the charge, and ought to have been averred and proved. In the second count, the charge is, that the plaintiff was a "basc, lewd and incontinent woman." The words "base and lewd" are not actionable, for "lewd" means "lustful, libidinous;" but does not import criminal indulgence; so that "incontinent." is the actionable word," which, by the evidence, was established. In the third count, the charge is, "she better be listen. ing to the report about herself losing a young one." The defendants are not called upon to prove, that there was such a report, nor would it avail them as a justification, if they did. They must aver and prove the matter, alleged to have been reported, to be true, to-wit: that the plaintiff was incontinent and unchaste. The gravamen of the action is a false and malicious charge of incontinence and a want of chastity. Adderton v. Melchor. It is unnecessary to allude to the other points made. The judgment must be reversed and a venire de novo be issued. PER CURIAM. Judgment accordingly. DEN ON THE DEMISE OF ADDERTON & AL vs. MATTHIAS MELCHOR. In an action of ejectment, where the declaration contained several counts, some of which were on the demises of persons, who had died before the action was brought; Held, that the Court below did right in ordering these counts to be stricken from the declaration. Appeal from the Superior Court of Law of Stanly County, at the Spring Term 1849, his Honor Judge CALDWELL presiding. The declaration in this action of ejectment had many counts. Among others, there were counts on the several demises of John and Thomas Carson, and William Moore, laid in the year 1796. At the return term, Spring of 1848, the defendant, upon affidavit, that the said John, Thomas, and William, were dead, and had died as far back as the year 1810, obtained a rule to show cause, why the counts, upon their demises, should not be struck out of the declaration. The plaintiff alleged, that the other lessors claimed under the said John, Thomas, and William. Upon argument, the rule was made absolute, and the plaintiff appealed. Adderton v. Melchor. Strange, for the plaintiffs. No counsel for the defendant. PEARSON, J. There was no error in making the rule absolute. Indeed, the counsel for the real parties admits, that the idea of laying a demise in the name of one, who had died many years before the institution of the suit, was an "experiment." The experiment ought not to have succeeded. It was obviously an attempt to pervert a fiction of law from its true purpose and intent. The proper time for making the motion was at the appearance term, but the Court should, at any time, (at least before verdict,) have allowed the application, and should have permitted the plea and consént rule to be with drawn, if necessary, to enable the defendant to make the motion. The action of ejectment is admirably adapted to try questions of title to land, and the fiction of "lease, entry, and ouster" is a beautiful illustration of the fact, that a fiction of law "works wrong to no one," and is never introduced into legal proceedings, except for the purpose of avoiding useless delay and expense, and furthering the ends of justice. It is true "John Doe and Richard Roe" are very much abused by persons, who are not well acquainted with them, but they are deservedly favorites with those, who have cultivated their acquaintance. No one, who comprehends the full scope and object of the fiction, can fail to be struck with it, as an enduring monument of the wisdom and clear sightedness of the fathers of our law. After it became common for freeholders, instead of bringing real actions, to enter upon the land and make leases for years, so that the lessees might bring ejectment, it occurred to the Courts, that the fact of making the "entry and lease" was unnecessary, and was attended with useless expense and delay. How was this to be |