Doherty v. Lynett

• Decision Date: 10 September 1907
• Docket Number: 39-1905.
• Citation: 155 F. 681
• Parties: DOHERTY v. LYNETT.
• Court: U.S. District Court — Middle District of Pennsylvania

155 F. 681

DOHERTY v. LYNETT.

No. 39-1905.

United States Circuit Court, M.D. Pennsylvania.

September 10, 1907

At Law. On demurrer to plaintiff's statement.

R. A Zimmerman, for plaintiff.

Cornelius Comegys, for defendant.

ARCHBALD District Judge.

Under the statute of limitations in Pennsylvania, an action for libel must be begun within a year; and as the date of publication here is given as March 7, 1904, while suit was not brought until August 24, 1905, the plaintiff is thus apparently barred, if the statute is pleaded, unless he can show something to obviate it. But it is hornbook law that advantage cannot be taken of the running of the statute by demurrer, but must be set up by plea if for no other reason than that otherwise the plaintiff would have to anticipate the defense and insert in his declaration the facts on which he relied to avoid it confusing the issues. Barclay v. Barclay, 206 Pa 307, 55 A. 985. Of course, where time enters into the right of action it is different, as where action is given by statute and it is in the same connection provided that it shall be brought within a specified time. But that is not the case here.

The only other question on this demurrer is whether a prima facie cause of action is stated. The publication complained of has to do with certain alleged internal troubles in the fraternity known as the 'Ancient Order of Hibernians,' by reason of which the Board of Erin branch decided not to parade on St. Patrick's day, three years ago. This, according to the article, was the sequel of what had occurred at the International Conclave of the order at Belfast, Ireland, in 1902, where the plaintiff, as it is charged, was guilty of treachery to those whom he was supposed to represent there. Discussing this, at the Board of Erin meeting, where the question of engaging in the parade came up, it is said that a statement was read by Mr. O'Donnell in which the plaintiff, who was a delegate to the Conclave from the Board of Erin branch, was declared to have betrayed that organization and attempted to sell it out to its rival, the Ancient Order of Hibernians of America, in consequence of which the plaintiff was subsequently expelled from the Board. Enlarging upon the subject, the article proceeds to state that:

'Francis Hughes, a delegate, said that Doherty's treachery * * * had been discovered by means of letters, and by an investigation made by two other

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