
    [720] [*] CROSBY against STONE.
    The true time of issuing a writ may be proved by parol.
    This was an action for words; pleas, not guilty, and the statute of limitations. At the trial before Pennington, J., at the Essex April Circuit, 1812, the time of suing out the capias in this cause became material, the plaintiff offered to prove this fact by the attorney, Mr. Woolley. This was objected to on the part of the defendant, on two grounds:
    1st. That the plaintiff was not at liberty to prove the commencement of the action, before the November term last, that is, the term to which the writ was returnable; that the exhibition of the bill was the commencement of the suit.
    2nd. That even if he was, yet that this could not be done by parol proof, but the writ must be produced.
    The judge overruled the objection, reserving the point, and giving leave to the defendant to move at bar for a non-suit. The plaintiff 'had a verdict, and on the coming of postea, the defendant moved for a non-suit,
    1st. Because the judge, at the circuit, improperly overruled a motion for a non-suit.
    2d. Because the plaintiff did not support his action by legal and proper testimony.
    3d. Because the judge, on the trial, admitted illegal evidence on the part of the plaintiff.
    This case being argued at the September term, by A. Ogden, Van Arsdale and Hornblower, for the defendant; and Halsey and Frelinghuysen for the plaintiff; and in this term Pennington, J., delivered the opinion of the court.
   P.RWSTirGTON', J.

At the trial, considering the actual time of suing out the writ, the point in issue, I incline to think that parol testimony as to that fact was inadmissible; in the hurry of a trial not attending minutely to the state of the pleadings; but as there was some nicety in the question, I thought it best, at the request of the counsel for the defendant, to reserve [*] the point. On a more deliberate consideration of the subject, I am of opinion that under the state of pleadings in this cause, parol testimony was not admissible to prove time of suing out the writ; and that the teste of the writ was the proper evidence, and that this could only be shown by the production of the writ itself. The teste of the writ, in all ordinary cases, is the evidence of the time of suing it out. But in case the writ is sued out in vacation, and that fact becomes material, and is put in issue, as it may be done, in that case the fact may be proved by parol. Johnson v. Smith, 2 Bur. 950. Also in case the question arises collaterally on trial, as in case of Wambough v. [721] Schenck, State Rep. 229. Then how is the case before us ? The plaintiff declared for words spoken. The defendant pleaded that the words were not spoken within two years next before the suing out of the capias ad respondendum in this cause. The plaintiff replied that they were. It was not material to the plaintiff to have shown that the writ was sued out in vacation; it was enough for him to produce the writ, the teste of which would fix the time. If it had been material to the plaintiff to have shown that the writ was sued out in vacation, he ought to have averred that fact in his replication, and named the day; and in case the defendant, in his rejoinder, had put this fact in issue, then the plaintiff could have given parol evidence of the actual time of taking out the writ. Butter, N. P. 1J/.9; Gould’s Esp. £93. The question in Johnson v. Smith, before cited, was whether the defendant, being a party on the record, could aver the actual time of suing out the writ, it being contended that he was estopped by the teste, the court very correctly decided that he could; but as well in that case as in others, the fact was averred on the record. T. Ray. 161. And the precedents of pleadings, on the statute of limitations, are in accordance. For the foregoing reasons we are all of opinion that the defendant is entitled to judgment of nonsuit.

Judgment of nonsuit.  