
    Frazier v. Felton and wife.
    From Hertford.
    Motion by Appellant, for certiorari to bring up tlie record to this Court, denied on the circumstances of the case : •
    If the appellee file the record in this Court, he can afterwards obtain a certificate of the failure of the appellant to bring it up ; but the Court must look into the record and affirm or reverse the judgment.
    It is not a ground for this Court to order a new trial, that the Court below has not stated the case on the record ; for the appeal is not necessarily from the opinion of the Court on points arising out of the facts at the trial, but may be for error in the pleadings. It is not error for husband and wife to appear by “ their” attorney ; for although they are but one person in law, the husband may make an attorney who shall appear both for him. and her.
    In an action against husband and wife for a libel, the declaration had two counts: in the first, it was charged that “ the Defendants combined and contrived to cause it to be believed, that the Plaintiff was a sot and common drunkard.” In the second, it is charged that the Defendants “ further contriving and intending as aforesaid,” composed, 8tc. the libel, &c. with inuendos applying the words the Plaintiff: upon plea of not guilty, a verdict was found forthe Plaintiff upon the second count Only.
    
      Meld, that the words “further contriving and intending as aforesaid,” refer to the allegation containe'd in the introductory part of the first ' count, and constitute a sufficient averment in the second count, “ that the Defendants contrived and intended to cause it to be believed that the Plaintiff isas a sot and common dnmhard,” Without repeating those words in the second count.
    This action had been tried in the' Superior Court of Hertford, in September, 1820, and a verdict and judgment had been rendered for the Plaintiff $ from which the Defendants appealed, and duly- entered into bond. The appellants did riot file the record in this Court on or before the third day of the present term ; but about the middle of January, moved the Court upon the affidavit of Felton himself, as stated in the opinion of the Chief-Justice hereafter, for a certiorari to bring up the appeal^ and have the case and record fully made, out for the revision of this Court..
    
      The motion was supported by Searwell, and opposed by Gaston for the appellee. After argument, the Court refused the certiorari.
    
    The opinion was given by the Ckiee-Justice :
    The Defendants have appealed from a judgment ren--dered against them in Hertford Superior Court, but have neglected to bring up the appeal within the three first days of this term of this Court, as required by the act of 1818. A certiorari, to bring up the caus.e and place it on the docket, is now moved for on behalf of the Defendants, upon an affidavit stating that the Defendant, Boon Fel-ton, gave bond to prosecute the appeal; that the case to be sent up was to have been made out by the Judge and Counsel, who tried and prosecuted the cause; and that he believed every thing had been done in the case necessary to a fair trial in this Court. The affidavit further states, that the Defendant is just informed that no case has been sent up from the Superior Court j for which he he is unable to assign any reason. This affidavit is made before the Clerk fn Hertford, and is dated the 7th January, eleven days after the expiration of the time within which the transcript ought to have been filed by the appellants, whose duty it is made by the act of Assembly. It does not appear that Felton made any effort to inform himself before the day the affidavit was sworn to, whether the case had been made out; nor is there any allegation that he applied to the Clerk of the Court below within due time for the appeal; or that he was prevented by accident from doing so. No step appears to have been taken by him to place the cause here, before the affidavit was made. Though the Judge might make out the case, it was not to have been expected that he would bring up the transcript; and as the appellant did not know until the 7th January that the case was not made out, that circumstance could have no influence in' preventing him from applying for and bringing up the transcript. For these reasons, it appears to me that the affidavit furnishes no ground on which a certiorari can be awarded. '
    The appellants also present a transcript of the record to the Court, and urge as another reason for a certiorari, that it appears therefrom that they did appeal and gave bond, and that a case was to have been made out by the Judge; and that his omission to do so, ought not to prejudice the party. It is certain, that in practice, an appeal is most frequent from decisions, which do not otherwise appear upon the record, than as they are connected w ith it by the case made out. It is competent, nevertheless, for a party to appeal from the judgment, on the record, as well as from points made at the trial.
    By the whoie Court. — ^Therefore, the motion.is denied.
    It turned out, however, that the appellee had, after the third day of the term, actually filed the record with the Clerk, and directed him to docket it, but at the same time observed, that he reserved to himself the right of obtaining from him a certificate of the failure of the appellants to file it. He now applied for the certificate, but the clerk declined giving it, as the record was now filed by himself, unless the Court should direct it.
    In this manner the case was brought before the Court again; when
    
      Sea-well, for the appellant,
    insisted that this was not a case for a certificate. The act of Assembly of 1818 gives two modes of proceeding to tiie appellee, which are in the alternative. He may “ either file the record at any time during the first or the next succeeding term, or obtain a certificate.” If he file it, it is to be presumed that his object is to have an affirmance of the judgment, and take the benefit of a judgment in this Court against the appellant and the sureties for the appeal. For that advantage, lib must run the risk of having the judgment reversed. It is too late for him to ask for a certificate now i for when the record is once Regularly in this Court, £|1(J w¡1((¡e must be looked into, and such a judgment given as it will warrant.
    He then proceeded, at length, to state divers reasons why the judgment should be reversed ; which are all taken notice of in the opinion of the Court, and need Hot he stated more particularly.
    
      Gaston
    
    contended, that the appellant had, by his failure to file the record, forfeited all right to open it again, and could not be heard against the judgment. Ho admitted, that if the appellee opened the record to the Court, the whole case was subject to the opinion of the Court, which must then give such judgment as the Court below ought to have given. But he urged, that the provision, allowing the appellee to file the record, was for his benefit, and he was at liberty to waive at-any time before he actually asked for an affirmance of the judgment. He wras entitled to be the first mover, and if he did not choose to ask any thing from the Court, the appellant could not.
    He likewise submitted arguments in support of the judgment below — if the Court should think proper to go into that matter.
    From the record, it now appeared to be an action for a libel, «commenced in the Superior Court, and the declaration was as follows, viz :
    
      “ Superior Court of Lata, September 'Term, A. D. 1819.
    lc íIeuteobd County, S. S. — James Frazier complains of Boon Felton. * and hie wife Eliza Felton, in custody, &c. of a plea of trespass on tlie 0 case, &c. For that whereas the said James now is a just, mora!, tempe- “ fate and well-behaved man and citizen of the State, andas such hath “ always conducted himself, and until the committing of the several i('grievances by the said Boon and his wife Eliza, as hereinafter men-tí tioned, was always reputed and esteemed by aK his neighbours and “ other good and worthy citizens to whom he was in any wise known, “ to be a person of good name, fame and credit: and whereas also the “ said James hath not ever been guilty, nor until the committing of “ the several grievances by the said Defendants, as hereinafter men- “ tioued, been suspected to have been guilty of the offences and in- “ temperate misconduct hereinafter mentioned to have been charged *e upon and imputed to the said James, or of any other such miscon- “ duct and infamous manner of living : by means of which said premi- “ ses, he the said James, before the committing of tire said several “ grievances by the said Defendants, had deservedly obtained the good “ opinion and credit of all his neighbours, and other good and worthy “ citizens to whom he was known. Yet the said Defendants, well “ knowing the premises and greatly envying the happy state and con- “ dition of the said James, and contriving and wickedly and maliciously “ intending and combining together to injure the said James in his a good name, fame and credit, and to bring him into public scandal, st infamy, disgrace and contempt with and amongst all his neighbours, “ and other good and worthy citizens to whom he was known, and to “ cause it to be believed that he the said James was a common sot and. “ habitual, drunkard,-and with intent to vex, harass, and bring him, «the said James, into contempt and disgrace as aforesaid, the said “ Eliza Felton, wife of the said Boon, on the 20th day of July, A. D. “ 1819, at Hertford aforesaid, falsely, wickedly and maliciously did “ compose and publish and cause and procure to be published of and « concerning the said James, a certain false, scandalous, malicious and « defamatory libel, containing amongst other things, the false, scanda- “ lous, malicious, defamatory and libelous matter following, of and con- « cerning the said James, that is to say — “Mis father” (speaking of “ John H. Frazier, and meaning the said James) “ has given so much “ -may to the pleasures ■ of Macclms, that the old man is at all times '“utterly unqualified for business,” (meaning and intending to have it “ believed, that he the said James was a common sot and habitual “ drunkard and thereby incapacited for business.”)
    
      “ And the said James further saith, that the said Boon and his wife “ Eliza, further contriving and intending as" aforesaid, afterwards, to “ wit, on the same day and year last aforesaid, falsely, wickedly and “ maliciously, wrongfully and unjustly, did compose and publish, and “ cause and procure to be published, a certain other false, scandalous, “ malicious and defamatory libel, of and concerning’ the said James, “ containing amongst other things, certain other false, scandalous, defamatory and libellous matters of and concerning the'said James, as “ follows, that is to say, “ Mis father, (speaking- of John H. Frazier and “ meaning the said James,) has given so much way to the pleasures of « Bacchus, that the old man (meaning the said James) is at all times vt “ terly unqualified for* business,” (meaning and intending thereby to have it believed and understood that the said James was a common 
      “ sot and habitual drunkard ;) by means of the committing of which “ said several grievances by the said Boon and his wife Eliza as afore- « jle saj(j james hath been and is greatly injured in his said “ g00'! name and reputation, and brought into public scandal, infamy “ and disgrace with and among his neighbours and other good and “ worthy citizens to whom the falsity of the said charge was unknown), “ and who thence have believed him to be an habitual drunkard and “ sot, unfit for business and unqualified for the usual intercourse of “ social life : wherefore the said James saith that he is injured, and “ hath sustained damage to the value of three thousand dollars, and “ therefore he brings suit, &c.”
    The Defendants appeared by their Attorney, L. M, and pleaded not guilty — justification—to which the Plaintiff replied generally, and issues were thus joined. The Jury found a verdict for the Plaintiff upon both issues upon the second count in the declaration, and assessed five hundred dollars damages, and found the Defendants not guilty upon the first count. There was no hill of exceptions tendered by either side, nor did the record shew any point reserved, nor any case stated. In this Court, no objection was taken to the pleadings, other than those noticed in the opinions of the 3 edges.
   Tathok, Chief .Justice.

The transcript having been filed by the appellee, we are now asked to inspect it and to withhold an affirmance of the judgment, if such errors appear upon the face of the record as would be sufficient to reverse it. The Court is of opinion, for the reasons that will be given by my brother-Henderson, that under the circumstances of this case, it is proper to look into the record. We, therefore, have considered the errors pointed out, and will now give an opinion on them.

The first is, that the husband and wife both come by their attorney ; whereas, being but one person in Law, they could not do so. In support of the objection is cited the case of Maddox v. Wynne ; but the error assigned there, was that the husband and wife came by their* at-. tornies — per attornatos suos — in the plural. The princi-pie to be extracted from the case is, that as they are but one person in law, the wife cannot appoint an attorney. Therefore, if an action be brought against husband ami wife, if the husband appear by attorney, he shall enter an appearance for both. Nor is it error for them to appear by attorney, though the wife be'under age ; because the husband may by law make an attorney, and appear both for himself and wife. The doctrine is further illustrated by the form of defence.given in the precedents — " and the said C. D. and E. F. his wife, by G. H. their attorney, come and defend the wrong and injury,” &c. In the case before us, the husband was obliged to join in the plea with his wife; and the attorney employed by him, necessarily became the attorney of both, and must have pleaded for both. For these reasons, I think the objection untenable.

It is further objected, that as the words themselves contained in the writing, do not impute any offence, but are. libellous only by being understood to imply something, it is necessary that the design in using the words should be first averred by way of introduction, and then their meaning stated by inuendo ; and although an inu-endo is stated here, yet the office of an inuendo is not to charge, but merely to act as a videledt to what has been stated.

Without pausing to consider whether the words charged in this declaration are so written, by way of allusion and reference, as to require explanatory allegations— whether it was necessary for the Jury to find that they meant to convey the imputation of the Plaintiff’s being a sot and a drunkard, in order to enable the Court to understand them in that sense ; but admitting, for the purpose of this argument, that such technicalities were necessary, I will proceed at once to enquire whether the ne« cessary averments are put upon the record.

The first count in the declaration charges, that the Defendants combined to cause it to be believed, that the Plaintiff was a common sot and habitual drunkard. The second count, upon which alone the judgment' was rendered, charges them with “ further contriving and intending, as aforesaid.” This further combination and contrivance relate to the same object, viz. to cause it to be believed that the Plaintiff is a common sot and habitual drunkard. Thé-introductory averments in the first count are thus connected with the second count, which then proceeds to state the libel, and concludes with an inuendo, that its meaning and intention was, to lmve it believed that the Plaintiff w7as a sot and drunkard. The inuendo, therefore, does not enlarge or change the sense of the previous words, but is only explanatory of the matter previously expressed, by applying the libel to it. Nor is it of any consequence, whether the extrinsic matter is introduced on the record by averment, recital or general inference; for if the introductory matters and inuendos appear upon the record, they amount to sufficient aver-menls. Upon the whole case, therefore, I think the judgment must be affirmed.

Henderson, Judge.

The appellee, upon the failure-of the appellant, has filed the record here; but he now prays nothing from the Court, and only demands a certificate from the clerk. I am of opinion, that he is not entitled^© it", and that we are bound to look into the record and pronounce such judgment as the Court below' should.' Upon the failure of the appellant to file the papers in time, two modes of proceeding are given to the appellee by the act establishing this Court. The first is, to obtain a certificate of the clerk of such failure, and to proceed to enforce his judgment in the Court below by process from that Court. For an appeal to this Court does not, like one from the County to the Superior Court, entirely annul the judgment of the Inferior Court, but only sul) modo, that is to say, provided the record is received, and the appeal entertained hy this Court. It is otherwise with appeals from the County Court. Before the judgment can ever he acted on, it must be affirmed by the Superior Court. The other mode is, for the appellee to file the transcript himself at any time within the first or second term of this Court after the appeal was granted, and mo\e for judgment of confirmation. By the act of filing the record, the appellee moves for judgment of affirmance. It is the only legal construction which can be put upon his act; for he can have no other legal object in view. And his act points with so much certainty to this object, that he shall not at the time of doing it, nor at any other time, aver a contrary design. The words can neither qualify nor give to the Set an explanation, contrary to the legal intent. We must, therefore, reject the appellee’s declarations, made at the time of filing the transcript, and view the appeal as here. Suppose he had not filed the record at this term, but had taken a certificate, on which he had acted ; but could not obtain satisfaction by execution from the Court below, against the appellants. He could not at the next term bring up the record, for the sake of his chance for an affirmance, that he might have execution against the sureties also. No more can he have a certificate after once asking for an affirmance j which he does by filing the transcript. He must take one course or the other from the beginning, and abide,by his choice.

The appellant’s counsel has urged as a reason whj the judgment should be reversed and a new trial granted, that the Judge omitted to make up a case. He contends that an appeal pre-supposes a case; and as none appears, the remedy must be by new' trial, for otherwise, «irreparable mischief would be don©; and non© will arise from it, because if the merits be with the Plaintiff, the result will be the same upon %'second trial. This reasoning would be unanswerable, were the premises correct. jju^. tj)0y are n{)^ -_4n appeal does not necessarily presuppose a case to bo stated by the Judge, from whose opinion, on the case, the appeal was taken. For the ap - peal can as well be from a judgment on what is called emphatically the record, that is to say, the writ, declaration, pleas, replication, &c. to the issues, verdict and judgment, as from any opinion of the Judge given on points arising in the progress of the cause. This matter is verified in the very case now before us ; for the appellant now urges that this judgment ought to be reversed for alleged defects in the declaration, and other errors appearing on the face of the proceedings. For these, and the reasons given by the Chief-Justice, I am of opinion, that there ought not to be a new trial, and that the judgment must be affirmed.

IIaie, Judge, concurred upon all the points : so that,

By the iVhoxe Court, the judgment was affirmed. 
      
       3 Salk. 62.
     
      
       5 Com. Dig. Pleader, B. 4.
     
      
       1 Show. Rep. 15.
     
      
       2 Chitty’s Plead. 409.
     
      
       Cro. Jac. 239, 238.
     
      
       Cowp. 684.
     