William Mattocks vs. Aaron Bellamy, 8 Vt. 463

The opinion of the court was delivered by Collamtír, J. As to the deposition ofBarnum, the justice certifies that the defendant resided more than thirty miles from the place-of caption. This clearly means at the time of caption. This certificate was subject to being contradicted by competent proof, and if so done, the deposition should have been rejected. This is, nevertheless, a mere question of fact, for the county court to decide, whether the certificate is contradicted by such evidence as that court t elieve.

It is not obvious how the conduct of that court can be assigned for error on that point, unless by stating the facts and all the facts found by the court. In this case, we do not consider that the fact, that the defendant resided within thirty miles of the place of caption, at the time of the service of the writ, contradicted cr disproved the certificate, that he resided more than thirty miles from chat place, a year after said service, when the deposition was taken.

As to the deposition of Sickles, it now appears, that a justice of the peace in the state of New York, is by statute, there authorized to take depositions to be used in those states where depositions are admissible. A copy of a writ of habeas corpus ad testificandum, certified by the clerk of the court, before whom the writ was returnable, and in whose files it remained, was admitted, though objected to. If a paper be of that character, that when produced, its execution must be proved, then the original must be shown or its loss or destruction proved before a copy is admissible.

This writ, is obviously of that public and official character that its execution would not be required to be proved, if produced from the proper public depository. It was then proper to be shown by copy. Must this be a sworn copy, or may it be a copy attested by the clerk. This writ, was returned into court, and now constitutes a part of the files and muniments of the clerk’s office. If this were from another state, it should be authenticated agreeable to the United States statute.

It has been the uniform practice of this state so far as we are informed, to admit and even prefer the copy attested by the clerk, not only of records, technically so called, but also, of all papers, files, rolls, &c., legally deposited in his office and there required to remain. For instance, all the proceedings and decrees in chancery, though strictly speaking, the court of chancery is not a court of record. This practice, we perceive no occasion to disapprove, considering it furnishing as high a degree of certainty as sworn copies can.

It is however urged, that the paper did not relate to the issue and therefore, was improperly admitted. It is obvious, that the case is not drawn up with reference to such a point. It may have been important testimony for the plaintiff, if the evidence which the defendant introduced, tending to show, that Fitch departed the liberties of the prison in 1809, tended to show he went out under the custody of an officer to give evidence in a cause, at the very date of the return on said writ.

This court will always presume the proceedings of the county court to be correct, until the .case, on record, shows them to be erroneous. From the present record it is impossible to say whether the testimony was relevant or not. It seems to have been given by the plaintiff as rebutting testimony, but what was the exact testimony which had been put in by the defendant, does not appear, no more than its ultimate tendency. We cannot, therefore say, the proceedings of the county court were erroneous, on this point.

That the lapse of some period of time would naturally lead the mind to the conclusion, that an obligation must have been fulfilled, is extremely obvious. Such a point, must have early arisen and called for.some rule of law, or each cause must have been left to the ever varying opinions of the different juries which might try it. The necessity of some time certain being fixed, is apparent. Legislation fixed these periods by statutes oí limitation, in most cases, and the courts in others. This, both must do arbitrarily, in the nature of the thing.

For though reason demanded that some .time should be fixed, she intimated no particular time, much less, a different time to each different class of claims. In relation to bonds, for which there is no statute of limitation, the courts fixed the period at twenty years, at which the presumption of payment will arise and call for explanatory or rebutting proof from the claim- “ , 1 J . r , , ant. JLhis has come down to us as a part of the common law, which it is the course of safe precedent to follow. To change it now, especially for pre-existing cases, partakes much of judicial legislation.

The defendant’s counsel insist, that this period of twenty years, was first fixed in England and followed in New York in analogy with the period in which the entry on lands or the action of ejectment was barred by the statute of limitation, and that to preserve the analogy, we should settle upon fifteen years in pursuance of our statute, as to ejectment, as the court have done in relation to presuming grants upon fifteen years user. The attempt to sustain the idea of perfect symmetry in our system, is neither a very certain or safe guide in duty. To do this, we must search for analogies often fanciful.

In relation to water privileges, ways, easements and incorporeal hereditaments, growing out of, and attached to lands, and in relation to mortgages, tenancies, &c., the analogy to ejectment is obvious ; and therefore, in relation to those, the same period of time has been adopted. But it is far from obvious how this debt and bond in any way resembles or bears analogy to lands, or has any connexion therewith, in this country. It would seem more to resemble a covenant, for which we have a statute.

How the period of twenty years was first fixed in England as the time which would crepte a presumption of payment of a specialty, is not certain. It might there have been considered as connected with land and leaning thereon, because the heir to whom the land descends is bound fcr specialty debts: “So it may be called, though not a direct, yet a collateral charge upon the lands.” — (2 Black. Com. 340.) However this may be there, we consider it our duty and most safe to follow the rule as we find it.

It is however insisted, that by law, a period less than twenty years ought, by the court, to have been left to the jury, with instructions that the jury might therefrom presume payment. Some cases have been produced as favoring such a principle, especialy the case of Jackson vs. Pratt, (10 John. R. 381.) That was an action of ejectment, in which the defendant attempted to set up an outstanding mortgage, about forty years old.

On this mortgage, some payments appeared to have been made; but for nineteen years, no claim had been made, nor rent paid, nor possession taken, or any step taken to put the mortgage in force; and the judge says, “from all these circumstances, the jury might have been warranted in finding the debt paid.” It is undoubtedly true that any lapse of time, however short, might be an ingredient in a composition of circumstances, from which a jury might be convinced that a debt was paid.

Where there is a statute of limitation, no 'period short of that will, unaccompanied with other circumstances, create a bar, or call for evidence to explain it. Where there is no statute, as in this case, no period short of twenty years has, «Zone, been considered as creating a presumption of payment, or been left to the jury for that purpose. Indeed, so to do, would entirely defeat all benefit from any certain rule on the subject, and would leave again each case to the credulity and caprice of differing juries.

Another question arises in relation to the rule of damages: Can the plaiutiff recover more than the penalty of the bond, or can interest be cast on that penalty ? There appears to have been very great fluctuation in the decisions on this subject. — (They will be found collected in 1 Pow. on Mort. 155, note.) It is to be considered that this is an action against a surety, and not on a bond for the payment of money, but for the jail liberties. The better and more modern opinion seems to be, in relation to such a case, that the penalty is all that can be recovered.— White vs. Sealey, Doug. 49 — Brangwin vs.

Perreat, 2 Wm. Black. 1190 — Tew vs. Winterton, 3 Bro. C. C. 489 — Wilde vs. Clarkson, 6 T. R. 304. Indeed our statute, like that of 8 and 9 William III., seems very distinctly to provide that in all actions for penalties, on breach being shown, judgment shall be entered for the penalty, and execution granted for the damages. This implies that the penalty shall not be exceeded. We say nothing how it would be as to a money bond as against principal only. Judgment reversed for all the damages beyond the penalty of the bond ; — affirmed as to the balance.