Bridgers v. . Bridgers , 69 N.C. 451 ( 1873 )

Plaintiff brought this suit to recover damages for slanderous words spoken by defendant of and concerning the plaintiff, charging him with having sworn to a lies in a certain trial before a Justice of the Peace.

On the part of the plaintiff one Bridgers Odom was introduced as a witness, who proved that he was present at the trial of a warrant had before one Jesse Flythe, a Justice of the Peace, in which the defendant was a party, and the plaintiff here was sworn as a witness, and in speaking of the trial and examination, the slanderous words complained of were uttered by defendant. This evidence was given without objection.

The plaintiff then introduced Jesse Flythe, the Justice of the Peace, who stated that a warrant was tried before him as a Justice of the Peace, between one Daniel E. Bridgers and the defendant. He was then asked by plaintiff's counsel if the subject matter of the said warrant was within his jurisdiction?

This evidence was objected to by the defendant upon the ground that it was secondary evidence, and that the warrant and proceedings must be produced, and parol evidence could not be given, unless it appeared that diligent search had been made, and they could not be found. This objection was sustained and the evidence rejected.

There was a verdict for the defendant and judgment accordingly. Appeal by plaintiff. This was an action for slanderous words. The defendant had charged the plaintiff with "swearing to a lie" in a trial before a Justice of the Peace, in which plaintiff had been examined as a witness.

In order to prove that the Justice had jurisdiction, the plaintiff introduced the Justice and asked him the question: "Did you have jurisdiction of the subject matter which you were trying?"

This was objected to by the defendant, and ruled out by his Honor. Whether the question was proper, is the only point in the case.

The plaintiffs' counsel in his brief says: "Whether a Court has jurisdiction of a particular matter is a question of law, arising upon a particular state of facts." Take that to be so, and it is so, and it would seem to follow that the question was improper; because we do not prove what the law is by witnesses. Nor do we prove mixed questions of law and fact by witnesses. It would have been proper to ask the Justice what was the matter which he was trying? And he could have stated the facts, as, for instance, that he was trying a demand for $500, for work and labor done, and then a question of law would have arisen for his Honor to decide, whether the Justice had jurisdiction of that sum. But the plaintiff did not ask the Justice to state the facts, but to state a conclusion of law from an unknown state of facts. This was clearly improper.

But still the question remains, ought his Honor to have rejected the evidence? He certainly ought not to have rejected it, if it was not objected to by the defendant. Nor ought he to have rejected it, although objected to by the defendant, unless the objection was put upon the proper ground. We have already seen that it was objectionable on the ground that the Justice was called upon to prove a question of law. But this objection was not taken by the defendant. He objected "upon the ground that it was secondary evidence, and that the warrant and proceedings ought to have been introduced." He did not object generally to the question, but he "pointed" his objection. And in this way he misled both the plaintiff and his Honor.The ground upon which he put his objection is untenable, and he must be held to that.

If the defendant had said, I object to this witness testifyfying [testifying] as to a question of law, we may reasonably suppose that both the plaintiff and his Honor would have seen the force of the objection. And then the plaintiff could have avoided the objection by asking the witness as to the facts and leaving the law to his Honor. Or if his objection had been general, it might have led to the same result. But his objection wasspecial, and untenable, and calculated to mislead.

In Chitty's Practice, vol. 4, p. 14, the requisites of a bill of exceptions is given: "It must state the circumstances upon which it is founded, or that a particular witness was called to prove certain facts; * * * the allegation of counsel on the admissibility or effect of the evidence, the opinion of the Judge and the exception of counsel to that opinion and the verdict." And it is further said that "where the object for which evidence is offered, but rejected, is obvious, and must have been understood by the Judge and jury, it is not necessary that that object should be specially stated." And in Cowen Hill's Notes to Phillips on Evidence, p. 778, it is said that the exception must be "so specific as to point to the precise error intended to be relied on, for the Court is not bound to do more than respond to the motion of objection made. They are under no obligations to modify the propositions of counsel so as to make them suit the case, but may dispose of them in the terms in which they are propounded." And again, it is said " the party excepting must lay his finger on those points," c. And in Stout v. Woody, 63 N.C. 37, it is said that exceptions must"specify the errors complained of."

The same principle permeates all the pleadings and proceedings in the administration of justice.

There must be certainty. Every thing that is calculated to mislead, or is obscure, is bad.

There is error.

PER CURIAM. Venire de novo.