Bradford v. Edwards

32 Ala. 628 | Ala. | 1858

STONE, J.

To the amended complaint the defendant pleaded the statute of limitations. To this plea the plaintiff demurred, and his demurrer was sustained. Neither the plea nor the demurrer is set out in the record; but, from the argument of counsel, we suppose the plea was that the words charged in the amendment were uttered more than one year before the amended complaint was filed. The demurrer was rightly sustained.

In Agee v. Williams, 30 Ala. 636, we said — “The charge which he requested the court to give, assumes it to be law, that so far as the adverse possession of the defendant is concerned, the amendment of the complaint is to be regarded as the commencement of the suit. But that assumption is not authorized by law. The amendment was not the beginning of a new suit, but the correction of a fault in the pending suit — the suit commenced in October, 1853. And if, at the commencement of that suit, the adverse possession of the defendant had not continued for six years, it could not bar a recovery under the amended complaint.” We will not now announce what would be our conclusion, if tbe amendment brought forward a distinct and independent cause of action. The amendment in this case assumes to do no such thing, but only varies the words expressive of the same charge. A necessity to meet the varying phases of the testimony, called for the amendment, as we suppose.

The above authority is decisive of the question under discussion.

[2.] The oiler to prove what is denominated in the record a disclaimer, was correctly overruled. It was not a compliance with the statute. — Code, §§ 2221, 2222. That statute was introductive of a new rule, unknown to the common law; and to authorize a party to avail himself of it, he must bring himself within its terms. The evidence offered was not good, either in defense of the action, or in mitigation. — Hamilton v. Glenn, 1 Penn. State Rep. 340.

[3.] Neither did the court err, in refusing to allow the defendant to prove that, in conversations other and different from those proved against him, he spoke of the plaintiff, and of his testimony given in the trial of the case of Bradford v. Stewart, in terms less offensive to Mr. Edwards, and more favorable to his integrity of purpose. In suits for verbal slander, it is neither a defense in bar, nor in mitigation of damages, that at some other time the defendant did not slander the plaintiff, or slandered him less maliciously.

The judgment of the circuit court is affirmed.

This judgment takes effect as of 3d day of February, 1858, when the cause was submitted.