President of Bank of Salina v. Henry & Pierce

1 How. App. Cas. 173

Opinion

Decision.—Judgment affirmed.

Gray, J., delivered a written opinion in favor of reversing the judgment.

Bronson & Wright, J. J., delivered opinions for affirmance, in which the other judges concurred.

Note. Held, that as the answer of the witness might tend to establish facts which would work a forfeiture of the debt, (1 R. S. 595, § 28,) he was not obliged to testify. This ground of itself was sufficient to establish the privilege of the witness; and as to this, the statute of limitations had no application.

Besides, as to the grounds on which the privilege of the witness was put by the supreme court, the statute of limitations was not even mentioned on the trial. If the defendant intended to rely on this statute, he was at least bound to say so. A party is not at liberty to start a question, on a motion for a new trial, or in a court of review, which, had it been mentioned on the trial, might have received a satisfactory answer, (per Bkonson, J.)

Reported, 1 Comstock, 83.