The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-01

good. Here the court incorporated a
mass of evidence. 1t has already been
printed in these administration
But there is another reason why the
published speech was not intrinsic evil
dence of malice. We have seen and have
said the speech itself. when it was de-
liyered and before it's publication, was
entirely and absolutely privileged. 1t
could not therefore have been used as
evidence of malice in itself after it's pub
lication 1t was not only not malicious
when spoken, but it was privileged. The
defendants motive could not be inquired
into. Shelter VS. Goodwin supra. In the
method and manner of its publication and
distribution, and the facts connected
Herewith, malice in fact might be proved,
but not by the communication itself.
The defendants exceptions to the in
PRODUCTION and. admission in evidence of
the first and second allegations of the
complaint and the defendants answer, to
show their failure to answer the same.
we think is we'll taken. Those allegations
concern the plaintiffs good character and
innocence Of the charges imputed to him
by the defendant Kilgo. The good char
acter and innocence of plaintiff were i'm
material averments and need not to have
been proved. Eatons Forms, Page 1874
They may be rejected as surplusage
Forkard's Starkie, supra, section 525
They are not traversable
1T is usual in all cases to commence
the declaration with a statement of the
plaintiffs good character and his inno-
cence of the crime imputed to LIN by the
Lee NJ
not traversable they may be omitted, and
the declaration may commence with a
statement of defendants malicious inten-
tion to injure the plaintiff" Saunders on
Pl. and Ev., 1914 The usual Introductory
ayerment of the plaintiffs good name
and reputation, etc, is altogether super
huous, his good character being presumed.
2 Greenleaf Ev., 400 The injury to de-
PENDANTS in the receiving of this evidence
by the court became more serious, when
His Honor's charge, in connection with it's
taken into consideration. He said, plain
tiff contends that the defendants practi-
cally admitted that this charge against
the plaintiff was untrue; that the first
and second allegation of the complaint, in
which they allege that the plaintiff was
in good standing and enjoying the conf
dence of his fellow men, and that in
their answer upon which they Joined Issue,
they did not deny that this IS true that
the first and second allegations are not
denied, that it amounts to practical
admission that this man was not the lind
of man that that speech of 1r. Kiiso's
said he was. His Honor instructed the
jury to consider that testimony with the
other in the case as bearing upon the
second issue-the falsity of charge. The
character and innocence of the plaintiff
were not the matters at issue. They were
not even material averments as we / "a e
seen, and section 268 of The Code has no
application. Whether or not the alleged
defamatory matter was false and malic-
ious, was the material issue in the case,
and defendants failure to answer the
first and second allegations of the COM
plant was in no sense an admission that
the publication was false
The plaintiff was allowed uader Cbjec-
tion of defendants to give evidence on the
subject of damages, which he hal sus-
tanned in his clerical calling. We thipk
the evidence was incompetent. The Tlan-
tiff it is true, was regularly ordained ana
set apart as a minister of the Methodlst
Episcopal Church, South, but he had had
no charge for twelve years preceding me
commencement of this action lie bad
for that time been engaged in other work
than the Christian ministry.
Before damages can be recovered by
one. by reason of words spoken or pub
lished of him in his profession or office,
he must have been actually engaged in
the work of his profession or in the pro-
fession of the office at the time the wtrds
were written or spoken. Mckee VS.. VIII
son, 81 n c., 800; Edwards vs. Harrell,