Barnard v. Boulware

Tompkins, Judge, delivered the opinion of the court. Barnard and wife sued Boulware in the circuit court, and judgment being there given against them, they come here to reverse that judgment. The action was for words spoken. The defendant pleaded, first, not guilty; secondly, that the cause of action did not accrue within one year, &c. The plaintiff took issue on the first plea, and replied to the second, that the cause of action did accrue within one year, &c. and issue was joined. On the trial of the cause, the plaintiffs offered to give evidence of words spoken by the defendant more than one year ante--rior to the commencement of this action. To this the defendant objected, and the circuit court sustained the objection. The plaintiffs excepted to the opinion of the court. The plaintiffs then offered evidence to prove that they were not informed of the speaking of these words till August, 1836, which is less than one year anterior to the time of commencing this action, and then offered to prove the speaking of the words by the defendant more than one year before the commencement of this suit. The defendant again objected, and the court sustained the objection. To this decision of the court the plaintiffs excepted. The plaintiffs then suffered a non-suit, and then moved to set it aside. Their motion was overruled, and it is assigned for error: 1. That the court refused to permit them to give evidence of words spoken by the defendant more than one year before the commencement of the action, after evidence had been given to prove that the plaintiffs had not been informed of 456 the speaking of the words by the defendant till Augiu 1836. 2. That the court refused to set aside the non suit. The statute provides that all actions for words spoken, shall be commenced within one year after the cause of action accrued and not alter'. It is an abuse of language to pretend that the cause of action did not accrue till the plaintiffs were informed that words had been spoken. They might with propriety say that they did not know they had cause of action till they had been inf°rmed the words were spoken. Slanderous words that are so long kept from the ears of the slandered person are rarely calculated to do him much injury. When we reflect how easy it is for a plaintiff to feign ignor.anc8 of the speaking of such words, and how difficult it is to prove his knowledge of the speaking, it does not seem probable that the law-making power should intend to strain language so far as to intend that the time when the right of action accrued, was the time when the m'g^t come to the knowledge of the speaking of the slanderous words. A proper command over the tongue is,too,so rarely found, that a moralist would rather be inclined to believe that the legislative body, even were the language of the act ambiguous, intended to reward with impunity the utterer of a slander, who had been so prudent or so fortunate as to keep it a secret from the injured person for the space of one year. But if the plaintiff in this action and his counsel had thought otherwise, it was clearly his duty to have pleaded specially the matter of excuse for not bringing b/s action within one year after the speaking of the actionable words. In the 8th section of the 3d article of the act pi escribing the time of commencing actions, it is provided that if any person, by absconding or concealing himself, or by any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times herein respectively limited after the time the commencement of such action shall have ceased to be so prevented. It is not pretended that the defendant in this cause either abscond- or concealed himself. Had the words charged to be spoken been calculated materially to affect the character standing of the plaintiffs in society, some friend, in probability, would have informed them, and in the absence of a friend to perform the kind office, it can scarce-be imagined that an enemy could be wanting to perform the office of propagating slander. When these offensive words were really spoken, we are not informed5 457 but the plaintiffs tell us in the bill of exceptions, that the knowledge of the speaking did not come to them till August, 1836, and it seems that their equanimity was so little disturbed by the information that they were not incited to action before the heat of the second summer, for their writ is dated on 7th June, 1837. The origin of all this far-fetched reasoning, which I have been called on to answer, is probably to be traced to the neglect of the plaintiffs to inform themselves when the words were spoken. Having neglected to allege specially in their replication their excuse for not commencing their action within the year after the words were spoken, which is the time when the right of action accrued, the plaintiffs were rightly prohibited by the court from violating one of the plainest rules of law, by giving evidence of matter of excuse under the issue here made that the actionable words were spoken within one year. It was also contended that the object of the slander, being a married woman, it is virtually her action and not the husband’s, and that the act is no bar to the right of action. This argument was made, I suppose, without reflection. In an action of it will not take the plaintiff’s ease out of the statute of limitations, that the speaking of the words did not come to his know■ slander,"thé’cáúse of action accrues elanderous^vords are spoken — and ledge until within of the suit. 457 For the reasons above given, I am of opinion that the circuit court committed no error against the plaintiffs, either in refusing to set aside the judgment of non-suit entered against them, or in excluding from the jury the proof that the knowledge of the speaking by the defendant of the offensive words, did not come to the ears of the plaintiffs till August, 1836, by wajT of excuse for not commencing their action within the year. Its judgment ought then, in my opinion, to be affirmed, and such being the opinion of the other members of this court, it is affirmed.