Wilms v. White ex rel. Alsip

Bowie, C. J., delivered the opinion of this Court. Two questions are presented by the record in this case : 1st. The sufficiency of the declaration in law. 2nd. The admissibility of certain evidence offered by the plaintiff below, and excepted to by the defendant.

After verdict, the defendant moved in arrest of judgment, which motion being overruled and judgment entered for the plaintiff below, the defendant,. Wilms, sued out a writ of error. The error assigned is that the plaintiff below sued and recovered judgment by her ‘prochein ami, when it appears from the record she was of full age.” The writ was issued on the 11th of September, 1863, at the suit of Julian White, by her next friend, Jacob White, returnable on the 23rd of November, 1863, when it was returned “summoned.” The defendant appeared and laid the plaintiff under rule nar. On the 29th of January, 1864, the plaintiff declared in the name of Julian White, “by her next friend, Jacob White, by James D. Bennett her attorney.” ³⁸⁶ In this nar. it is averred, “the said Julian White is of the age of twenty years and a feme sole.” At March term, 1864, it appears from the record that “Julian White, by her said attorney,” prayed leave of the' Court to amend the writ of summons and it was granted, and thereupon on the 8th day of March, 1864, the said plaintiff, by her attorney aforesaid, declared anew against the defendant, which declaration commences, “Julian White, by her next friend, Hezekiah Alsip, by James D. Bennett, her attorney, sues Frederick C. B. Wilms, for— “1st.

The said Julian White is of the age of twenty-one years and a feme sole,” etc. It thus appears, that the amended declaration to which the defendant was ruled to plead last, was a nar. filed alter the plaintiff became of full age, and after she had appeared by attorney, and prayed leave to amend the writ of summons. The words, “by her next friend,” in the commencement of the amended nar. being followed by the other words, “by James D. Bennett, her attorney,” were obviously misrecital and mere surplusage, “utile per inutile nonvitiatur,” the previous entries of the record showing she acted by attorney. Thi3 commencement of the nar. is mere recital of the writ and not a necessary part of the declaration. The Code, Art. 75, declares it shall not be necessary to state any formal commencement or conclusion to any declaration or other plea.

No general demurrer shall be allowed for a mere informal statement of a cause of action or defence, “provided such statement is sufficient in substance.” If this was a case of variance-between the writ and declaration, it would be cured by verdict under the old forms of pleading. Giles vs. Perryman, 1 H. & G., 171 . 1809, ch. 153, sec, 2. And Raborg vs. Bank of Col., 1 H. & G., 234, 238. ³⁸⁷ In a O'urt of general jurisdiction, a defendant, if he wishes to avail himself of the plaintiff's incapacity to sue, an list do so by plea in abatement. Shivers vs. Wilson, 5 H. & J., 132 .

In the case of Graham vs. Fahnestock, the defendant pleaded in bar, without verification under oath, that at the time of the commencement of the action, “the plaintiff who declared by attorney, and not by guardian or next friend, was an infant,” the plaintiff moved that the plea be rejected, which was done. Upon appeal this Court held the plea was properly rejected, the subject of the plea was matter in abatement, and not in bar, and it was not verified by affidavit, without which, it could not have been received. The error relied upon here, is not that, being in fact an infant, she sued by attorney, but being in fact an adult, the plaintiff sued by “proohein ami.” It is an objection to the form of the process, and not to the cause of action, and being in the nature of a dilatory plea, is not favored in law. If a party may pretermit the opportunity of pleading in abatement, proceed to trial, and failing in his defence on the merits, after verdict, raise objections of form, rather than substance, irreparable injury might he inflicted.

Such is not the principle of pleading at the present day. The plaintiff below, after offering evidence tending to prove the defamatory words charged in the declaration, and circumstances of aggravation, proposed to prove what were the pecuniary circumstances of the defendant below, that he was a man of wealth, with a view to exemplary -damages, to which the defendant below objected as irrelevant and inadmissible testimony, and his objection being overruled, prayed leave to except. The ground of this exception is, if we correctly apprehend the argument of the counss 1 for the plaintiff in error, that damages in the actios of slander are merely competí» ³⁸⁸ satory and not punitive, and it was