French v. Creath, 1 Ill. 31, 1 Breese 31 (1820)

Dec. 1820 · Illinois Supreme Court

1 Ill. 31, 1 Breese 31

Joseph French, Appellant, v. John R. Creath, by George Creath, his next friend, Appellee.

APPEAL FROM RANDOLPH.

An order of the court below, appointing the next friend of an infant plaintiff is not necessary. ^(1.) [Vide Laws of 1831, entitled “An Act to amend an act, entitled an act concerning practice in courts of law,” approved January 29,1827.]

An action for slander is not taken away, though the statute creating the charged, be repealed, ^(2.)

John R. Creath, an infant under the age of twenty-one years, by George Creath, his father and next friend, brought an action, in the circuit court of Jackson, and removed by change of venue to Randolph, against Joseph French, for slander. On the trial a verdict was found for plaintiff, and a motion made by defendant for a new trial, and in arrest of judgment, which were overruled, and an appeal taken to this court where it was assigned for error, 1. That there was no order of the court below, appointing the next friend of the infant plaintiff; and 2. That the slanderous words spoken, charged the plaintiff with the commission of the crime in 1815, and as the law creating the offense with which he was charged, is repealed, no words spoken in relation to that crime are actionable.

Starr, for appellant.

Kane, for appellee.

(1.) In Robb v. Smith, 3 Scam., 46, it was said by the court in argument, that where a suit was brought by an infant and the infancy was pleaded in abatement, the plaintiff might amend by inserting the name of a prochein amy. The same was also held in Blood v. Harrington, 8 Pick., 552. This case is cited and approved in Heslep et al. v. Peters, 3 Scam., 45. And in a recent case the court held that “ It is not necessary that there should be a guardian, or prochein amy, for a minor at the time of suing out the process. If it were otherwise, the exception should be taken before pleading to the merits.” Stumps v. Kelley, 22 Ill., 140.

(2.) An action for slander will lie for charging the plaintiff with a crime, the prosecution of which has been barred by the statute of limitations. Van Ankin v. Westfall, 14 Johns., 233.

The repeal of a statute docs not affect rights acquired under the repealed statute. Naught v. Oneal, post.

Opinion of the Court. We are of opinion, that the judgment of the court below ought to be affirmed. It is now too late to make the objection first stated, and as to the second there is no clearer principle that the action is not barred, because the statute creating the offense has been repealed. If the words spoken, had charged an offense to have been committed in another state, which is not punishable here, still they would be actionable, ^(a) Judgment affirmed.

(a) An offense against a temporary statute can not be punished after the expiration of the act, unless a particular provision by laws be made for that purpose. 7 Wheat., 551.

One guilty of perjury in proceedings under the bankrupt laws, cannot be prosecuted for the offense, after the repeal of the law. United States v. Passmore, 4 Dall., 372.