Cole v. Babcock
| Decision Date | 22 December 1885 |
| Citation | 2 A. 545,78 Me. 41 |
| Parties | COLE v. BABCOCK. |
| Court | Maine Supreme Court |
A. M. Spear, for plaintiff.
Clay & Clay, for defendant.
FOSTER, J. Action on the case, to recover damages for alleged slanderous words which the plaintiff claims were spoken of and concerning himself. The case comes before the court on demurrer to the declaration, which contains three counts, in each of which the words are alleged to have been uttered "about the first of April, 1884." In neither count has the plaintiff definitely set out the time when the alleged words were uttered. There is not that certainty as to time which the fundamental rules of pleading require to be alleged in reference to traversable facts. "In personal actions the pleadings must allege the time; that is, the day, month, and year when each traversable fact occurred." Steph. Pl. c. 2, § 4, rule 2; 1 Chit. Pl. 257. "It is a general rule of pleading, in personal actions, that the time of every traversable fact must be stated; that is, that every such fact must be alleged to have taken place on some particular day," (Gould, Pl. c. 3, § 63;) and it is held that this rule applies where it is not material to prove the time as laid, (Platt v. Jones, 59 Me. 241.) The word "about" renders the allegation of time indefinite and uncertain. Platt v. Jones, supra; State v. Baker, 34 Me. 52. A reference to the decisions where this question has been adjudicated is all that is necessary. Gilmore v. Mathews, 67 Me. 520; Gray v. Sidelinger, 72 Me. 114.; Moore v. Lothrop, 75 Me. 302; Ring v. Roxbrough, 2 Cromp. & J. 418. Whether an amendment may not be allowed can be settled by the court below. Exceptions sustained.
1 Reported by Baker, Baker & Cornish, Esqs., of the Augusta bar.
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