Nalle v. Oyster

Citations

• 230 U.S. 165
• 33 S. Ct. 1043
• 57 L. Ed. 1439
• 1913 U.S. LEXIS 2685

Syllabus

<p>The practice of bills of exceptions is statutory under the.Statute of Westminster, 2, 13 Edw. I, c. 31, which prevailed in Maryland and was continued in fprce in the District of Columbia By the act of March 3, 1901, except as superseded by the Code established by that act.</p> <p>Error appearing on the face of the-record may be assigned as ground ■ for reversal, although no exception be taken; nor is the function of an exception confined to the trial of the action but extends to all the pleas, challenges and evidence.</p> <p>This practice was not modified by the Code, nor has it been by any rules of practice established under it; there is no provision giving the right to take exceptions on rulings other than those made in the course of the trial, except-as based on tbé Statute of Westminster; nor does any rule of court require an exception to be taken in order to preserve rights of a plaintiff against whose declaration a demurrer has been sustained.</p> <p>Section 1533 of the Code applies only where the demurrer has been overruled; it has no bearing upon’a case where the demurrer has been sustained.</p> <p>.Ordinarily malice is to be implied from the mere publication of a libel, and justification or extenuation must proceed from the defendant; but where the communication is privileged, the burden is on the plaintiff to prove malice. White v. Nichols, 3 How. 266. Allegations of malice, falsehood and want of probable cause in issuing a libel are of fact and are necessarily admitted by a demurrer.</p> <p>The. issue joined upon a demurrer to one count of a declaration is legally distinct and separate from the issue joined upon a demurrer to another count; nothing can be imported from one count to the' other, nor can a judgment be based upon surmise that a matter re-, ferred to in one count is the same as that referred to in another.</p> <p>If the parties in the former action be the same as in the present, every matter and question of fact necessarily involved in the