
    
      Levi J. Moses vs. W. C. Gatewood.
    
    Where, in slander, the only plea justifies the words spoken as true, the affirmative of the issue being on the defendant, he has the right to open and reply in evidence and argument.
    
      Before Wardlaw, J. at Charleston, May Term, 1851.
    The declaration alleged that the plaintiff was book-keeper in the South Western Rail Road Bank, and the defendant, to cause his dismissal from office, in discourse with the President of the Bank and others, spoke these words, “ Levi J. Moses, one of the officers, induced me (the defendant) to endorse a lottery ticket and become responsible for a prize, by promising to pay me an old judgment debt, and has refused to pay,” whereby plaintiff lost his employment in Bank, and incurred expense, &c.
    The only plea avered, that plaintiff had owed defendant a note of $445, and defendant had thereon recovered against the plaintiff a judgment of $544. Plaintiff was admitted to the benefit of the insolvent debtors’s Act — drew a prize in a lottery, payable forty days after the drawing, and promised if defendant would endorse the lottery ticket, he, plaintiff, would pay the judgment. Defendant endorsed the ticket, and plaintiff would not pay the judgment, wherefore the words were spoken, &c.
    
      The replication denied that plaintiff requested the defendant to endorse the ticket, and promised if defendant would indorse, that he, plaintiff, would pay the judgment.
    
      Issue joined thereon.
    Defendant claimed the right to open and reply in evidence and argument, and his Honor allowed it to him.
    With proper instructions upon the evidence given the case was submitted to the jury, who found for the defendant.
    The plaintiff appealed and now moved for a new trial, on the grounds:
    1. That his Honor gave the final reply to the defendant, who offered evidence.
    2. Because the verdict was against evidence, and without evidence to justify it.
    
      Hunt, for appellant.
    
      Petigru, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The general rule of the English practice was, until a very recent period, without exception, that the party who has to maintain the only affirmative or all the affirmatives in the issue oi issues, made by the pleadings on the trial, is entitled to begin and reply in argument. (3 Chit. Gen. Prac. 872; Cotton vs. James, 1 Mood. & Malk. 275; 22 Eng. C. L. R. 305, and note by reporter.) If the defendant had the affirmative, it was thought that a question of damages, which must necessarily go to the jury with the issue, and be considered by them if the issue should be found for the plaintiff, did not make a difference : not even in those cases where the plaintiff was obliged to prove damages in order to have recovery of any more than nominal damages, and where the defendant was allowed to reply in evidence concerning damages to the plaintiff’s evidence, (which had gone not only to disprove the issue, but to show the damage sustained,) and of course the plaintiff was allowed, by rejoinder in evidence, to reply to the defendant’s answer concerning damages. It was said that the question of damages does not give the plaintiff’s counsel a right to begin, because the defendant is the actor, and has undertaken to show that which may prevent the consideration of damages : and does not give him a right to reply, because if the issue should be found for the defendant, it would be a waste of time to inquire into damages. The case was different, whereby a judgment by default as to part, or by anything else in the pleadings, the claim for some damages, instead of being contingent and secondary, as where it depended on the decision of an issue, was indefeasible, whatever might be the result of the issue : and, of course, upon a mere writ of inquiry the plaintiff began and replied.

The inconveniences of allowing the defendant, by tendering an unimportant issue, to have, in all cases, the beginning and reply, although the matters submitted to the jury necessarily involved, in case of a verdict for the plaintiff, the inquiry of damages, induced the fifteen Judges of England, in 1832, to introduce an exception to the general rule, to this effect: in actions for personal injuries, also libel and slander, the plaintiff shall begin, although the general issue may not have been pleaded, but there is only a special issue, the affirmative of which is on the defendant. (Carter vs. Jones, 6 Car. & P. 64 ; 25 Eng. C. L. R. 283.) In all other oases the general rule was left undisturbed, although further modifications of it are said by some of the reporters to have been contemplated.

In our Court the general rule, as it formerly prevailed in England, has long been established by rule of Court, and is contained in the revised rules which were adopted in 1837.() In May, 1833, it was held to be applicable to an action of slander, (anonymous, 1 Hill, 251:) it has often since been recognized and applied in practice. In this case the defendant took the risk of sustaining the allegation he had made: there was nothing in the nature of the issue which could have rendered it difficult for the plaintiff’s counsel to anticipate the course of the reply upon the issue : the distinct question presented by the issue, with instructions as to the burden it imposed upon the defendant, was carefully submitted to the jury : and the result has shown that if a reply upon the question of damages had been given to the plaintiff’s counsel, and he had confined himself, as he should have done, to that question, there would have been mere waste of time and trouble, as the question of damages never came to be considered.

Upon the facts it is needless to comment. This Court has carefully reviewed the report of them, and considered the observations which have been addressed to it on the part of the plaintiff. This is one of many cases in which the verdict of the jury must be conclusive, for according to the impression which this or that portiotr of the testimony might have produced, might the finding have been on one side or the other.

The motion is dismissed.

O’Neall, Evans, Frost and Withers, JJ. concurred.

Whitner, J. absent.

Motion dismissed. 
      
      (a) 62 Rule, Miller, 42.
     