Piedbas v. Milne

PORTER, J. delivered the opinion of the court. The defendant and appellant seeks relief in this case, by assigning error which he avers is apparent on the face of the record. The action appears to have been brought for the value of cattle, charged to have been taken by violence, out of the possesion of the plaintiff, in the year 1812; damages are also claimed for the injury sustained by this illegal taking. The answer contains a general denial off the facts on which recovery is sought, and a plea that the plaintiff’s right to sue, is barred by prescription. The well established rule, in this court, in regard to assigning error apparent on the record is, that nothing can be alleged as such, but matter which could not have been cured by evidence legally given on the trial; for the presumption is in favour of the judgment, unless its illegality or injustice be shewn by bringing up the cause in the manner pointed out by law,and whenever testimony could have removed the objection, which a view of only [538] part of the proceedings exhibits, this tribunal presumes it was offered and acted on. 11 Martin, 558, 12 ibid. 304. Morel for the plaintiff Livingston for the defendant. The question therefore which we have how presented is, whether under the pleadings the plaintiff had a right to offer evidence, that notwithstanding the time that had elapsed, he had a right to maintain his action. We think there can be no doubt but he had. As neither the statute regulating our practice, nor the rules of the court, where this cause was heard, required a replication; it was perfectly regular to admit evidence against the matter of defence set up in the answer; indeed it was of necessity that it should be received. This point disposed of, there is not the slightest difficulty in any other part of the case. There are many circumstances, which might have prevented the prescription from running, and we are bound to presume they were proved to the satisfaction of the court below. It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.