Peters v. Ulmer

The opinion of the court was delivered, November 21st 1873, by Sharswood, J. — The first assignment of error is, that the court below refused to allow the defendant to plead “ not guilty” as well as justification, and in ordering the defendant to withdraw the plea of “ not guilty.” The ground upon which this order was made appears to have been that the pleas were inconsistent. Under the statute of 4 Anne, c. 16, sec. 4, Roberts’s Digest 42, which first permitted a defendant, with the leave of the court, to plead as many several matters as he should think necessary for his defence — it was the practice at first for the court to refuse leave when the proposed pleas were inconsistent, but in modern practice such pleas, notwithstanding the apparent repugnancy betAveen them, are permitted: 1 Troubat & Halv, part 1, p. 470. Thus, to go no further, what seems to be more inconsistent than to an action upon a bond to plead non est factum and payment — to deny the execution of the bond by the defendant, and yet to allege that [404] he had paid it ? The onlyfexception which appears to be recognised is the general issue and tender, and there is a good reason, perhaps, for not allowing these to be pleaded together; for if a verdict were found for the defendant on the general issue, this incongruity would appear upon the record, that nothing was due, though the defendant had admitted on the record, by pleading the tender, that something was due: Maclellan v. Howard, 4 Term Reports 194. In Kerlin v. Heacock, 3 Binn. 215, the short entry of “not guilty, with leave to justify,” was considered, as in fact several pleas of not guilty and a justification, and no remark was made by the court as to their inconsistency. In truth they are not inconsistent. The defendant in slander may believe and allege that he never used the words imputed to him, but as human testimony is fallible and uncertain, he may well fortify himself by adding, if the plaintiff succeeds in proving that I did say the words, they were true. Against an unscrupulous plaintiff of bad character — especially since the Act of Assembly allowing him to be a witness in his own behalf — it may be the only safe line of defence. The discretion vested in the court by the statute of Anne to refuse leave to put in more than one plea, is clearly a legal discretion, not to be exercised unless good reason exists. Where, as here, it was refused to allow an amendment of the pleadings, it was error, under the Act of March 21st 1806, sect. 3,4 Smith’s L. 329. In Smith’s Administrator v. Kessler, 8 Wright 142, where, after a plea of payment, the defendant was refused leave to put in a plea of non assumpsit, this court reversed the judgment. Nor can we see that the case is helped by the rule of the court below, relied on by the defendant in error. That rule was evidently intended to abolish the loose mode of pleading “ not guilty, with leave to justify,” which had been condemned by this court in Kerlin v. Heacock, and to compel a defendant to set out in a formal plea of justification what matter he intended to rely on as such. That, indeed, was an action of trespass de bonis asportatis ; but the same reason applies in libel and slander. The defendant is entitled to have the matter formally spread upon the record— the accusation which he may be called on to meet, if it be of an indictable offence. Upon the state of the pleadings, after the withdrawal of the plea of not guilty, the second and fourth assignments cannot be sustained. The third assignment is to the refusal of the court to award a peremptory nonsuit. If it was an error it is clearly not lv viewable here. Judgment reversed, and venire facias de novo awarded.