Huston v. M'Pherson
Huston v. M'Pherson
Opinion of the Court
This was an action of slander brought by McPherson against Huston. Plea, not guilty. There was also a pled of the statute of limitations, concluding with a verification (
On the trial, the defendant asked the Court, to instruct the jury to the following effect: That unless the plaintiff had proved the speaking of some of the words within one year next before the commencement of the suit, he could not recover. The Court refused the instruction.
If there had been a replication to the special plea, alleging that the words were spoken within one year (the time limited by statute) before the suit was commenced, the plaintiff would have been obliged to prove not only the speaking of some of the actionable words, but that they had been spoken within the limited time. Hurst v. Parker, 2 Chitt. R. 249. — 1 Arch. N. P. 418. But as there was no such replication, the question relative to the instruction refused is not before us. Whilst the special plea was unanswered and undisposed of, there could be no legal trial of the cause. Swan v. Rary, 2 Blackf. 291.
The judgment is reversed and the verdict set aside with costs. Cause remanded, &c.
(1) The conclusion of the plea of the statute of limitations with a verification, though usual, is not necessary. The new matter in the plea being negative need not be proved, and an offer therefore to verify (that is, to prove) it cannot be requisite. The proper conclusion of the plea seems to be, “ wherefore the defendant prays judgment if the plaintiff ought to have his aforesaid action against him;” leaving out the words usually inserted, “and this ho is ready to verify.” Bodenham v. Hill, 7M. & W. 274. A conclusion to the country would be evidently wrong. Where a plea of the statute of limitations concludedto the country,
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