Farnan v. Childs

Citations

• 66 Ill. 544

Syllabus

<p>1. Instruction—assuming a fact in issue. In slander, where the gen- , eral issue is filed, it is erroneous to give an instruction for the plaintiff which assumes that the defendant was guilty of speaking the words alleged in the declaration. In such a case, an instruction that the jury might “consider the reiteration of the slander at different times and to different persons, in estimating and fixing the damages,” is objectionable in not leaving it to the jury to find, from the evidence, the fact of such reiteration.</p> <p>2. Slander—plea of justification with the general issue, no evidence of the speaking.' Where, in an action for slander, the plea of not guilty is filed, notwithstanding pleas of justification are also filed, the plaintiff must prove the speaking of the words alleged, and the pleas can not be used to convict the defendant, nor will he be bound to make his defense until he is proven guilty*</p> <p>3. In an action for slander, where the defendant filed the general issue, and pleas justifying the speaking of the words, the court instructed the jury, for the plaintiff, “that if the defendant has filed pleas justifying the speaking of the words charging the plaintiff, etc., and made no effort to prove the same, the jury may take that fact into consideration in aggravation of damages.” The plaintiff failed to prove the speaking of the words: Held, that the instruction was clearly wrong and calculated to mislead the jury.</p> <p>4. Pleading—effect of several pleas. The doctrine uniformly held, is, that where a party, as he may in this State, files as many pleas as he may deem necessary for his defense, each plea stands by itself and forms a distinct issue; and it is notan objection that some are inconsistent with each other, as for example, when the general issue is pleaded and with it a plea of tender, or the statute of limitations.</p>