#### T. J. GATTIS v. JOHN C. KILGO, B. N. DUKE, W. H. BRANSON and W. R. ODELL.

(Decided November 7, 1899.)

Slander — Libel—Misjoinder of Causes of Action — Demurrer — Practice, Code, Secs. 267, 272.

1. While several causes of action may he united in the same complaint, each must affect all the parties to the action and he separately stated. Code, sec. 267.

2. While a demurrer to a complaint for misjoinder of different causes of action should he sustained hy the judge, he should not dismiss the action. It is within his discretion to allow an amendment, and if none is made, it becomes his duty, on just terms, to subdivide the action on docket for separate trials. Code, sec. 272.

Civil ActioN for libel, heard upon demurrer, before Bryan J., at April Term, 1899, of the Superior Court of GrRANVILLE County.

The complaint alleged slanderous words to' have been spoken by defendant Kilgo of and concerning' the plaintiff, and libelous publications to have been made by all the defendants concerning him.

A demurrer was filed by defendants for misjoinder of causes of action.

Demurrer was sustained, and the action was dismissed by his Honor.

Defendants excepted and appealed.

Messrs. Guthrie & Guthrie, Boone, Bryant & Biggs, A. W. Graham and Hides & Minor, for appellants.

Messrs. Winston & Fuller and B. 0. Burton, for appellee.

*134EaiRcuoth, C. J.

Tbe defendants demur to tbe complaint for that tbe plaintiff bas unlawfully joined two separate causes of action in bis complaint against different persons, and moves to dismiss tbe action.

Tbe first five sections of tbe complaint allege that tbe defendant John C. Kilgo, in August, 1898, uttered in public slanderous words against tbe character and business relations of tbe plaintiff, and set out specifically and at length tbe words complained of, and further allege as follows: “And so the plaintiff alleges that in uttering and publishing and circulating tbe aforesaid false and defamatory words of and concerning tbe plaintiff, tbe defendant John 0. Kilgo intended thereby to charge, and did charge, tbe plaintiff with an offense, equivalent to tbe crime of wilful and corrupt perjury, and thereby intended to injure, and did mjure, tbe plaintiff in bis good name, fame and credit accordingly, as if tbe plaintiff, in bis testimony upon the investigation aforesaid, bad been guilty of tbe crime of perjury.” Tbe complaint thereafter further alleges that tbe defendant Kilgo and bis codefendants in this action, Duke, Branson and Odell, contriving and wickedly and maliciously intending to injure tbe plaintiff in bis good name, etc., in September, 1898, did compose, print and publish in certain newspapers, circulating in this State, or caused it to be done, a certain pamphlet containing tbe aforesaid false, slanderous, libelous and defamatory words of and concerning tbe plaintiff, and prays for damages. Tbe demurrer was sustained and bis Honor adjudged that the action be dismissed, and tbe plaintiff appealed.

Tbe contention of tbe plaintiff is that tbe allegations against Kilgo individually do not amount to a cause of action, and that they are only matters of inducement to tbe charge against all tbe defendants. They, tbe defendants, *135aver that, in uttering the words by Kilgo alone, he intended to injure and did injure the plaintiff, and we think that is a statement of a cause of action. The failure to add a prayer for relief against Kilgo individually is not fatal. It would be technically appropriate to pray for damages. Code, sec. 233 (3). We understand that under The Code system the demand for relief is immaterial, and that it is the case made by the pleadings and the facts proved or admitted, and not the prayer of the party, which determines the measure of relief to be administered, the only restriction being that the relief given must not be inconsistent with the pleadings and the facts. A general prayer for relief will be implied. Harris v. Sneeden, 104 N. C., 374.

It has been held in an action for slander, “separate demands for damages need not be appended to the various allegations setting up the causes of action.” Gudger v. Penland, 108 N. C., 593.

The balance of the complaint sets out the charges against Kilgo and the three other defendants, with a prayer for damages.

Can these two causes be joined in the same complaint? Code, sec. 261. That section says: “But the causes of action so united.... must affect all the parties to the action.... and must be separately stated.”

It was held in Logan v. Wallis, 76 N. C., 416, that there could not be such a joinder unless all the parties to the action are affected. We do not see how the last three named defendants are in anywise connected with the plaintiff’s first cause of action. It seems they were present as a committee when the words of the first cause were uttered, and that they did not participate in such utterances. This would no more make them liable to an action than all others present and silent. In fact, the case is on “all fours” with Burns v. Wil *136 liams, 88 N. C., 159. Tbe same view was taken in. Land Co., v. Beatty and another, 69 N. C., 329, where tbe confusion and inconvenience of joining such causes was fully pointed out, with illustrations.

We approve tbe judgment below sustaining tbe demurrer, except that part dismissing tbe action, and that part is overruled.

When tbe case is called again for trial, it will be within tbe discretion of tbe Court to allow an amendment. If none is made, it will be tbe duty of tbe Judge, on just terms, to divide tbe action on the docket for separate trials. Code, sec. 272; Street v. Tuck, 84 N. C., 605; Solomon v. Bates, 118 N. C., 316, and several intervening decisions.

Judgment modified and affirmed.

Clase., J., did not sit on tbe bearing of this appeal.