Ontario Bank v. Rathbun

19 Wend. 291

• Court: New York Supreme Court
• Decided: May 15, 1838
• Status: Published

Opinion

By the Court,

Cowen, J.

The argument urged in favor of a new trial is that the plaintiffs failed to maintain the issue upon the pleas of the statute of limitations, on account of the lapse of time between the issuing of the first capias, and the testatum capias; that the intermediate time cannot exceed 6 years ; that the issuing of the original capias ought not to be more than equivalent to a new promise which would continue in force for 6 years only. All the intermediate process stated by the continuance roll are said to be a fiction, which should not in justice be allowed to avail for more than six years. No case nor dictum was cited fixing or intimating such a limitation, nor am I aware of any principle which requires it. If there be any such, I apprehend that the circuit is not the place at which it can be insisted on. The continuance roll being produced, it imports absolute verity, like any other record, and surely cannot be contradicted even by parol, much less by the assumption that it is false. Non constat that a capias may not have been regularly continued in truth during the whole time. If the record was improperly made and filed, the course was to move that it be set aside for irregularity. I suppose it was in the ordinary form. It is not produced, and whether it be sufficient to maintain the issue does not appear. It was objected at the trial that it was not. Upon that we cannot pronounce. The point was not much insisted on in argument, and, in fact, does not arise.

New trial denied.