Gilmore v. Borders , 3 Miss. 824 ( 1838 )

Mr. Chief Justice ShaRkey

delivered the opinion of the court.

An action was instituted for slander. The declaration contains several counts. The defendant below pleaded not guilty generally, and justification to each particular count. Issue was taken on one of the pleas of justification, and it appears by the bill of exceptions, that before the cause was submitted to the jury, the defendant asked and obtained leave, and did. actually withdraw all' his pleas of justification. On the trial, however, these pleas were introduced by the plaintiff as evidence and the defendant objected and excepted to the opinion of the court, allowing them to be introduced, and on this exception the cause is brought up.

After the pleas were withdrawn, they were no longer before the court. Before that, they were not a part of the record, and the defendant by the withdrawal placed them under his own control. It was improper, therefore, to permit them to be read as evidence. They were not, in fact, pleas in the cause, after they were withdrawn, and the plaintiff could exercise no control over them. By the withdrawal, they were removed from the cause and were no longer a part of the proceedings. It stood on the general issue alone. And the plaintiff was bound to establish the charge by proper evidence.

For this error, the judgment must he reversed, and cause remanded, and venire de novo awarded.