Harper v. . Pinkston

AVERY, J., concurring. (Discussion of Lord Denman's Act, section 580 of The Code, bill of discovery, matters of privileges, etc.) The wife, who alone is charged to have been slandered, is not a party to the action. There being no special damage alleged as to the husband, who is the sole plaintiff, the complaint fails to state a cause of action. Newell on Defamation, 365, 1849; Odgers Slander and Libel, 313, 346; Folkard's Starkie on Slander, 332; The Code, sec. 177. The words were not used in regard to the husband, and his reputation certainly has not been assailed. He must aver special damage. The action should, therefore, be dismissed on the motion made here by the defendant. Indeed, it might have been done exmero motu by this Court. Rule 27 of Supreme Court; Hagins v. R. R.,106 N.C. 537; Gordon v. Sanderson, 83 N.C. 1. This makes it unnecessary to consider the interesting questions raised on the argument. There is no case of which a court can take cognizance. ACTION DISMISSED.