Williams v. Cooper — 1 Hill & Den. 637

Majority

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Williams vs. Cooper.

Headnote

A defendant in an action of slander, under the impression that he had no evidence to justify the words charged, pleaded the general issue; but, afterwards discovering such evidence, he applied to the court and had leave to amend by adding a plea of justification.

Where, in slander, the words charged in the declaration imported that the plaintiff was a thief, and had stolen the defendant’s apples: Held, that the plaintiff could not be allowed to amend by adding words accusing him of stealing boards, and which, though spoken befofe the' suit was commenced, did not come to his knowledge till long afterwards; especially, as the right of action therefor had become barred by the statute of limitations.

But, semble, the court will allow even a new cause of action to be added to the declaration by way of amendment, provided the suit was intended to embrace it, and it was omitted in declaring through a mistake of the pleader; and this, whether the statute of limitations has since closed upon it or not. .

Slanderous words charging the plaintiff with having stolen a particular thing, cannot be introduced into a declaration for words importing a charge of theft generally; under the notion of merely amending a variance; for they constitute distinct causes of action.

Amendment, in slander. The words charged in the, declaration imported that the plaintiff was a thief, and had stolen the defendant’s apples, to which the defendant, supposing he had no evidence of justification, pleaded the general issueAfterwards, discovering evidence by which he believed he could justify the words, he moved for and had leave to amend.: by adding a plea that the words were true.

The plaintiff, at the same time, moved to amend his declaration by adding words which imported a stealing of boards; words which he did not know of when the suit was brought, and an action for which was now barred by "the statute of limitations; though not when this suit was brought.

L. J. Walworth, for the plaintiff,

cited 1 R. L. of 1813, 117 to 132, and 2 R. S. 343. Also 20 Wen

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dell, 668; 6 id. 506; 12 id. 228; 7 T. R. 51; 6 id. 543.

R. Cooper, contra,

cited 1 Cowen, 136; 1 Wendell, 93; 12 id. 228; Gr. Pr. 530,1st ed.; 1 Hall’s Rep. 165.

Í Have looked into tlie books cited, and think I could have allowed the proposed amendment, had its purpose been to obviate a variance between the declaration and the cause of action for which the action was really brought; or to introduce a hew cause of action for which it was so brought, but which had been omitted by the pleader through mistake. The delay which has intervened would have been no Objection to either; though the statute of limitations might have closed upon the matter sought to be introduced. Indeed, I will not deny that the latter circumstance might even strengthen the argument for allowing the amendment.

But here it is proposed to add a distinct substantive cause of action, not known to the plaintiff when the suit was brought, and of course not intended to be declared upon. This withal is barred by the statute. That would be going farther than any cáse warrants. It would be to avoid the statute by a suit which did not in fact, nor was intended to cover the cause of action against which it has run. Courts are more liberal in allowing the addition of new demises in ejectment, perhaps,, than any other sort of amendment. Indeed, that is, generally, no more than the modification of the declaration, so as to reach the real question intended by the suit. Yet where the title of the proposed lessor appeared to have been barred by the statute, this court denied the motion for such an addition; (Jackson, ex dem.Harris, v. Murray, 1 Cowen, 156.)

It is said that the words sought to be added here are not new and distinct; that one charge in the declaration is of words importing that the plaintiff was a thief, and the addition that he stole boards; is but another mode of charging the Same thing; Genetically this is so; but specifically

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not; and a plea justifying the former words might not reach the new ones. I think the allowing of these must be considered much more than amending a mere variance; and that they are distinct words within the rule of the cases disallowing amendments by adding a new cause of action.

It is supposed that the 2 R. S. 343, § 1, enlarges our powers to amend; but this section is merely in affirmance of the old practice, (Trinder v. Durant, 5 Wendell, 72.)

Motion denied.