conduct, which was designed to be, and in fact | payable at a future day, "is due and that the was, the inducement for the orator to delay the maker has nothing to file against it," was held assertion of his legal claim, and thus expose it to refer to the time of the maturity of the note; to the statutory bar. Burton v. Wiley, 26 Vt. and that the statute of limitations did not com430. Fletcher v. Warren, 18 Vt. 45. mence running on such guaranty until the note became due. Adams v. Clark, 14 Vt. 9. 27. From demand. Where a right of action depends upon a demand made, the statute of limitations does not begin to run until demand. Poultney v. Wells, 1 Aik. 180. Hutchinson v. Parkhurst, 1 Aik. 258. 33. Estate tail. The statute of limitations does not commence to run against the issue in tail, until at the death of the donee in tail. Giddings v. Smith, 15 Vt. 344. 34. Interest. The statute of limitations does not begin to run upon a demand until the principal, or at least some separate and distinct 28. Where a contract is payable in specific portion of the principal, becomes due and payarticles or property on demand, and all at one able, and then only upon such distinct and time, and there is nothing peculiar in the terms separate portion. The previously accrued yearly of the contract, or other circumstances indica- interest is not barred, if the principal is not. ting that the parties contemplated any longer Grafton Bank v. Doe, 19 Vt. 463. 36 Vt. 599, delay than is to be inferred from the fact that 35. Contract to pay after death. Where the contract is so payable, perhaps the rule the plaintiff supported his father's second wife adopted in certain reported cases is sufficiently at the father's request, and upon the father liberal towards the creditor-which is, that he telling him "to carry in his claim against his may have the whole period of the statute of limitations in which to make demand, and if he make no demand in that time, the statute will then commence running. Peck, J., in Thrall v. Mead, 40 Vt. 540; and so held in this case, distinguishing it from Stanton v. Stanton, 37 Vt. 411. (the father's) estate, after his death;"-Held, that this was sufficient evidence of a contract to that effect; that the statute of limitations did not begin to run during the life of the father; and that without other evidence of an agreement for the payment of interest, none could be allowed against the estate until from the father's 29. Where a written contract for the pay- death. Sprague v. Sprague, 30 Vt. 483. ment of specific articles or property, in which | 36. Propagation society. Where the deno certain day of payment is named, indicates fendant took possession under a perpetual lease of itself that the calls for payment are to be in- by the town, under the act of 1794, of lands definitely prospective, and to be made as may granted in the town charter to the propagation suit the wants and convenience of the payee, society ;-Held, that such possession was there is no ground furnished from which the adverse to the society; and that such posseslaw can assume any fixed point as a limit to a sion, commenced before the act of 1832 [which reasonable time for making a demand, and from removed the exemption in previous statutes of that point give operation to the statute of limi- limitations as to persons beyond seas], but contations. Semble, that this fixed point might be tinued for 15 years thereafter, gave title to the determined from other facts proved. Stanton defendant against the society. Propagation v. Stanton. 30. A promissory note promising, for value received, to pay S "four hundred dollars in produce or wood from the farm on demand as he may want to use the same, on interest," had run for over twelve years without any demand or request for payment. Held (nothing more being shown), that the action upon it was not barred by the statute of limitations. Ib. Society v. Sharon, 28 Vt. 603. 37. Retainer as attorney. The defendant consulted with the plaintiffs and retained them as his attorneys in an expected litigation, for which they charged him a retaining fee. No litigation was had, and there was no further service rendered by the plaintiffs. Held, that the statute of limitations commenced to run from the date of the retainer, although the 31. Default of officer. The right of plaintiffs continued professionally bound thereaction against an officer for an insufficient levy after by the retainer. Adams v. Mott, 44 Vt. upon land accrues immediately on the breach of 259. duty, and the statute of limitations then begins 38. Entire day for payment. Decemto run; and it is not saved or deferred by the ber 24, 1874, the plaintiff brought suit on a fact that the creditor went into possession under promissory note dated December 24, 1867, a void levy, and after quiet possession for more payable generally to the plaintiff, or bearer, in than six years, was afterwards evicted in eject- one year from date, and not entitled to grace. ment by the debtor, because of the invalidity of In the absence of proof of demand and refusal the levy. Hall v. Tomlinson, 5 Vt. 228. 13 of payment on the day the note fell due ;—Held, Vt. 586. that that should not be presumed; that the 32. Guaranty. A guaranty that a note, right of action accrued only at the close of the 2. Ineffectual suit. 24th day of December, 1868, and that the action was not barred by the statute of limitations. Beeman v. Cook, 48 Vt. 201. 47. Without fault of plaintiff. When39. Disabilities. If more than one disa-ever the merits of an action fail to be tried bility exists at the time the right accrues, the without fault of the plaintiff, it is a case falling statute of limitations will not begin to run until within G. S. c. 63, s. 17, allowing another all those disabilities are removed. But succes- action to be commenced in a year thereafter, sive disabilities will not save from the statute, though in the meantime the statute of limita--as where a new disability succeeds the one tions had run; and this, regardless of the parwhich existed when the right accrued. McFar- ticular manner in which the action terminated; land v. Stone, 17 Vt. 165. as, where it was by non-suit, not voluntary, but constrained by some decision of the court. Spear v. Newell, 13 Vt. 288. Phelps v. Wood, 9 Vt. 399, 404. III. SUSPENSION OF THE STATUTE. 1. By supervening disability. 48. G. S. c. 63, s. 17, providing for a second suit within one year after the defeat of the first 40. Death of party. The death of a "for any matter of form," &c., does not cover creditor after a cause of action has accrued to the case of a defeat of the first suit by a nonhim, does not interrupt the running of the stat- suit ordered for lack of compliance with an ute of limitations. Conant v. Hitt, 12 Vt. 285. order to furnish bail for costs, although the (Changed by G. S. c. 63, s. 16.) plaintiff through poverty was unable to furnish 41. Without any special statute to that it. Hayes v. Stewart, 23 Vt. 622. effect, it was held, that from the death of a 49. Where the plaintiff became non-suit by debtor until the appointment of an administra-order of court, and it did not appear affirmator, the running of the statute of limitations tively that this was without his fault ;—Held, was suspended. Hapgood v. Southgate, 21 Vt. 584. 42. If a debtor die before the statute of limitations has run upon his debt, the operation of the statute is suspended for two years at the farthest after the granting of administration (G. S. c. 63, s. 16); and such suspension is not extended by the opening of the commission for the presentation of such debt. (C. S. c. 52, s. 9.) Briggs v. Thomas, 32 Vt. 176. that the case did not fall within the equity of this statute. Poland v. Grand Trunk R. Co., 47 Vt. 73. 50. Where an action failed through the neglect of the justice to be present with the writ at the time and place of trial, and without fault of the plaintiff ;-Held, that the case was within the equity of G. S. c. 63, s. 17; and that an action, brought within one year thereafter, was not barred by the statute of limita43. Insanity. A disability-as, the in- tions, which had in the meantime run (as to sanity of the plaintiff-occurring after the ac- time) upon the claim. Spear v. Curtis, 40 Vt. cruing of the cause of action, does not prevent 59. the running of the statute of limitations. coln v. Norton, 36 Vt. 679. Lin- 51. Plaintiff's guardian brought assumpsit in his own name, as guardian, and for that 44. Minority. No disabilities are within reason the suit was defeated without trial on the saving of the statute of limitations, except the merits. The plaintiff, within one year such as existed at the time the right first accrued. after, by the same person as guardian, brought Tracy v. Atherton, 36 Vt. 503. McFarland v. Stone, 17 Vt. 165. Arbuckle v. Ward, 29 Vt. 43. a new action for the same cause. Held, that the first action, with its result, had saved the case from the statute of limitations, under G. S. c. 63, s. 17. Spear v. Braintree, 47 Vt. 729. 3. Absence from the State. 45. Where the right to an easement in the plaintiff's lands depended upon an uninterrupted adverse use for 15 years, commenced in the lifetime of the plaintiff's ancestor ;-Held, that it was not interrupted by a descent cast 52. Terms "Absence." Section 10 of upon the plaintiff during his minority. Tracy the statute of limitations of 1797 (Slade's Stat. v. Atherton. 291) provided, that if the debtor was without 46. Agreement. Parties claiming adverse this State at the time the cause of action acrights in land agreed to submit their rights to crued, the suit might be commenced within six arbitration, and that the party in possession years after his coming, or return, into this should so continue until the decision of the State. Held, that this applied to resident citiarbitrators. Held, that the running of the statute of limitations was thereby interrupted, the possession under the agreement not being adverse. Perkins v. Blood, 36 Vt. 273. zens of other States, who came but temporarily into this State, as well as to citizens of this State temporarily absent; and this, although both parties resided out of the State when the cause of action accrued; and although the action was barred by the statute of limitations the statute of limitations; otherwise, if he of the State where the cause of action accrued, leave no domicile in this State. If he have a and where both parties resided. Graves v. fixed residence out of this State, then all his Weeks, 19 Vt. 178. Dunning v. Chamberlain, absences from the State are to be deducted 6 Vt. 127. Mazozon v. Foot, 1 Aik. 282. Hill from the time of limitation fixed by the statute. v. Bellows, 15 Vt. 727. Hall v. Nasmith, 28 Vt. 791. 66 53. Coming"-"Return." The "com 59. Residence. If a debtor comes to re ing" or "return" into this State which sets in side in this State and actually resides here for operation the statute of limitations where the the statute time in all, though it be with occadebtor was out of the State when the cause of sional interruptions, the statute of limitations action accrued as mentioned in Stat. of 1797, will bar the claim. Russ v. Fay, 29 Vt. 386. s. 10 (Slade's Stat. 291; R. S. c. 58, s. 14; C. Hackett v. Kendall, 23 Vt. 275. S. c. 61, s. 14; G. S. c. 63, s. 15)-means a "coming" to the knowledge of the creditor, or a coming to dwell and reside permanently. Mazozon v. Foot. Hill v. Bellows. Hall v. Nasmith, 28 Vt. 791. Davis v. Marshall, 37 Vt. 69. 60. Under G. S. c. 63, s. 15, the time of the debtor's absence from this State while residing out of it, is to be deducted in computing the period of the statute of limitations, although he was absent and resided out of this State when the cause of action accrued, -the cred54. "Residing." A debtor must be con-itor always residing in this State. Davis v. sidered "absent from" and to "reside out of Marshall, 37 Vt. 69. inhabitant of the State in the U. S. military service, is to be deducted in computing the period of the statute of limitations, notwithstanding his wife and family resided in the State during his absence. Cardell v. Carpenter, 42 Vt. 234. the State" (G. S. c. 63, s. 15), when his domi- 61. Military service. Under G. S. c. 63, cile in this State is so broken up, that it would s. 20, the time of absence from the State of an not be competent to serve process upon him by leaving a copy there; and for that purpose, there must be some place of abode which his family, or his effects, exclusively maintain in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment. Hackett v. Kendall, 23 Vt. 275. 55. If a debtor, having no intention to reside in this State, comes or returns into the State, and this is known to the creditor so that he has opportunity to make service of process upon him, the statute of limitations will be set in operation. Mazozon v. Foot, 1 Aik. 282. 30 Vt. 205. 62. This statute is retrospective, as well as prospective, in its operation; and the time of one's absence as a volunteer or enlisted soldier, in the U. S. service before the passage of the act, is not to be taken as any part of the time limited for the commencement of an action. Cardell v. Carpenter, 43 Vt. 84. 63. Several partners. In an action against several partners, it was held barred as to some, although not as to those who had been absent 56. "Go"- "Absence." The statute of from the State. Spaulding v. Ludlow Woolen 1832, No. 3, providing that "if any person Mill, 36 Vt. 150. shall go from this State before the cause of ac- 64. "Known property." The settled contion shall be barred by the statute of limita-struction of the terms: "known property in this tions," "the time of such absence shall be de- State, which could by the common and ordinducted in deciding whether such cause of ary process of law be attached," as applicable action is barred," &c., was held (Bennett, J., to the case of an absent defendant under the dissenting) not intended to apply to a cause of statute of limitations (G. S. c. 63, s. 15), is, action already barred under a previous statute, although the debtor had left the State before such previous statute had run. Lowrey v.Keyes, 14 Vt. 66. that the defendant's ownership of the property must be notorious to such an extent that it would not escape a reasonable search and inquiry on the part of the plaintiff; but that 57. Nor does this statute allow, in behalf actual knowledge of the property and of the of the plaintiff, the deduction, in any case, of defendant's title to it need not be possessed by the time of the defendant's absence from the the plaintiff, if by reasonable diligence he would State before the passage of the act-it having acquire that knowledge. Tucker v. Wells, 12 no retrospective action whatever. Wires v. Farr, 25 Vt. 41. Poland, C. J., in Richardson v. Cook, 37 Vt. 605. Vt. 240. Wheeler v. Brewer, 20 Vt. 113. Stoughton v. Dimick, 29 Vt. 538. Hill v. Bellows, 15 Vt. 727. Moore v. Quint, 44 Vt. 97. 58. Under C. S. c. 61, s. 15 (G. S. c. 63, s. 65. The "known property within this State" 15) any absence of a debtor from the State, which saves to a defendant absent from the while having a residence in it so that service of State the benefit of the statute, must be so far process may be made upon him, is not to be known that by reasonable diligence it can be taken into account to prevent the running of found and attached, and it must also be of an Ib. amount sufficient to yield a substantial benefit as to a judgment, as well as to a simple conto the plaintiff, and be so far unembarrassed as tract. to be liable to a levy for satisfaction of the 74. It is not essential to the sufficiency of debt. Wheeler v. Brewer. Royce v. Hurd, 24 an acknowledgment of a debt so as to take it Vt. 620. Russ v. Fay, 29 Vt. 381. out of the statute of limitations, that the ac66. It is not enough to bring a case within knowledgment be made to the creditor, his this statute, in case of a debtor absent from the agent, or servant. It may be sufficient if made State, that he should show he had deeds of to a stranger. Brewin v. Farrell, 39 Vt. 206. land in this State on record, without proof of Blake v. Parleman, 13 Vt. 574. Minkler v. title; but he must prove that he had known Minkler, 16 Vt. 193. Hunter v. Kittredge, 41 and visible property within the State from 368. which the plaintiff could have satisfied his de- 75. The effect of a new promise, or of part mand, by attachment and levy of execution. payment, to avoid the statute, is the same, Hill v. Bellows, 15 Vt. 727. whether made before or after the limitation has run. Carlton v. Ludlow Woolen Mill, 27 67. Known property in this State belonging to a partnership, not shown to be insolvent, Vt. 496. of which an absent debtor is a member, is such 76. The acknowledgment of a debt barred property of the debtor, within this statute, as by the statute, includes as well the interest as "could by the common and ordinary process the principal, unless the acknowledgment be of law be attached." Russ v. Fay, 29 Vt. limited. Williams v. Finney, 16 Vt. 297. 381.. 77. An acknowledgment of an existing 68. Whether, in a given case, mortgage debt, or promise to pay it, does not keep the incumbrances would exclude property from right of action in life beyond the period fixed the expression “known property which could, by the statute, dating from the time of such by the common and ordinary process of law, acknowledgment or new promise. Munson v. be attached," would depend on whether, by Rice, 18 Vt. 53. attachment and levy, the creditor might derive substantial benefit in the matter of getting pay upon his debt. Moore v. Quint, 44 Vt. 97. 78. An acknowledgment or part payment of the debt by one of several joint contractors, removes the bar of the statute as to all. Wheelock v. Doolitle, 18 Vt. 440. Wilson v. Green, 25 Vt. 450. Joslyn v. Smith, 13 Vt. 353. (Changed by G. S. c. 63, s. 23.) 69. The statute of limitations will run in favor of a party residing out of this State, during the time that he has known attachable property within it, although his ownership is 79. But this statute (G. S. c. 63, s. 23) does not continuous; and if amounting in all to six not apply to the case where one partner, as years (or other statute period), will bar an agent for the firm, makes a part payment from action. (G. S. c. 63, s. 15.) Russ v. Fay, 29 the partnership funds. Carlton v. Coffin, 28 Vt. 381. Dictum contra in Royce v. Hurd, 24 Vt. 504. Vt. 620, denied. 70. A replication to a plea of the statute of limitations, that the defendant had resided out this State, &c., without averring that he had had no known property in this State, &c., had not been within the State, &c., was held ill. Stevens v. Fisher, 30 Vt. 200. IV. AVOIDANCE of Statute. 80. Where there is no dispute about the facts and what the admissions are, which are insisted on as taking a case out of the statute of limitations, their effect is a question of law. Chapin v. Warden, 15 Vt. 560. Phelps v. Stewart, 12 Vt. 256. 81. The acknowledgment of a debt, barred by the statute, from which a new promise to pay can be implied, must be an acknowledgment of the debt as subsisting and still due-a 1. By acknowledgment; new promise; part distinct, unqualified acknowledgement. Brewin payment. v. Farrell, 39 Vt. 206-with an apparent willingness to remain liable for it, or, at least, without an avowed intention to the contrary. Phelps v. Stewart, 12 Vt. 256. Blake v. Par 71. Acknowledgment of debt New promise. An unqualified acknowlegment that a debt is due, takes it out of the statute leman, 13 Vt. 574. Cross v. Conner, 14 Vt. of limitations. Barlow v. Bellamy, 7 Vt. 54. Gailer v. Grinnel, 2 Aik. 349. 72. The admission of a debt as due takes it out of the statute, though the debtor says he is poor and unable to pay it, and for that reason refuses to give a new note for it. Olcott v. Scales, 3 Vt. 173. 394. Carruth v. Paige, 22 Vt. 179. Brainard 73. An acknowledgement or new promise subsisting, with an apparent willingness to rewithin six years, removes the bar of the statute main liable for it, or unaccompanied by any unwillingness to pay it, is evidence from which that it was not a just account. a new promise is to be inferred, and will take Paige, 22 Vt. 179. Carruth v. the case out of the statute. Phelps v. Stewart. 92. If a debtor denies his indebtedness, but Blake v. Parleman. Moore v. Stevens. Brewin expresses a willingness to settle it, if estabv. Farrell. Hunter v. Kittredge. Brayton v. lished, and the indebtedness is proved to have Rockwell. 41, Vt. 621. 83. But the mere acknowledgment of an original indebtedness, is not sufficient. It must be such, as that a promise to pay can be implied. Brainard v. Buck, 25 Vt. 573. Brayton v. Rockwell. existed, the admission is sufficient to take the case out of the statute of limitations. Paddock v. Colby, 18 Vt. 485. Hill v. Kendall, 25 Vt. 528. Steele v. Towne, 28 Vt. 771. But see Carruth v. Paige, 22 Vt. 179; and questioned in Moore v. Stevens, 33 Vt. 308. 84. An acknowledgment by the defendant: 93. Within six years, the plaintiff requested that certain notes against him existed, and that the defendant to apply the claim now in suit he had an account to go against them, and a upon certain demands which the defendant then promise to call and have the notes and account had against him. The defendant replied, "No settled, were held sufficient to take the notes matter about it--it will all come right;" and at out of the statute of limitations. Chapin v. another time, on like request, he said "he was Warden, 15 Vt. 560. too busy." Held, that the operation of the stat 66 85. The debtor's promise to pay a debt ute was not saved thereby. White v. Dow, 23 barred by the statute, as soon as he could," Vt. 300. was held to remove the proof of his ability to pay. sett, 19 Vt. 308. statute bar, without 94. As to the note in suit, the defendant Cummings v. Gas- said "he had signed with his son, and in the end he thought he should have this to pay ;" and pay the debt, if it had been paid when it should have been," or, "in the first place." Held, that such acknowledgment prevented the operation of the statute of limitations. Phelps v. Williamson, 26 Vt. 230. 86. A declaration by the defendant, that added, "that there had been enough paid to "the plaintiff's account ought to be settled, that he would call and settle it, and did not suppose there was much due," is a sufficient acknowledgment to take the account out of the statute. Williams v. Finney, 16 Vt. 297. 87. So, where the defendant requested a 95. An admission by the maker of a promthird person to call on the plaintiffs and settle issory note, that the amount of it is to be dehis account with them, saying he thought he ducted from a larger claim which he has against had paid them more than was due; and after- the holder, is a sufficient acknowledgment to wards said to the same person, that the plain- remove the statute of limitations. Brigham v. tiffs' account was not settled. Blake v. Par-Hutchins, 27 Vt. 569. leman, 13 Vt. 574. 96. The defendant, being called upon for 88. So, where the defendant said he did not payment of his note, said: "I supposed it was suppose he ought to pay the demand, but that, paid by White, by an arrangement; tell your if it was right, he would pay it, as he did not father (the plaintiff) to put White up to pay mean to decline paying a just debt; and said to it; if he does not, I shall have to pay it.' the officer, when the writ was served upon him, that he had assured the plaintiff that he would not take advantage of the statute of limitations. Paddock v. Colby, 18 Vt. 485. (Questioned in Carruth v. Paige, 22 Vt. 179.) Held, as matter of law, that this took the note out of the statute of limitations. Hayden v. Johnson, 26 Vt. 768. 97. A receipt in full was given by the defendant, "one item only excepted," [specifying 89. So, saying that the statute of limitations that], "which may be adjusted as the facts may should make no difference; that he and the prove." In an action to recover that item ;plaintiff would look over their accounts, and Held, that the case was taken out of the statute what was due the plaintiff should have. Cooper by the terms of the receipt. Sweet v. Hubbard, v. Parker, 25 Vt. 502; and see Minkler v. Mink- 36 Vt. 294. ler, 16 Vt. 193. 98. Under an issue formed upon a plea of 90. But, saying that it was a just debt and the statute of limitations, the plaintiff proved ought to have been paid, but he became poor that the defendant had admitted, on the day of and could not pay it, but that he would pay one- a former trial, "that the plaintiff had an old half of it the next winter if the plaintiff judgment against him, then on trial, and that would give up the note, does not take the he was willing to pay it, and would pay it the case out of the statute. Cross v. Conner, 14 next fall in cash, or labor." Held, that this Vt. 394. was legally sufficient to authorize the finding of the issue against the plea. Stevens v. Hewitt, 30 Vt. 262. 91. Nor does a declaration by the defendant that he would not take advantage of the statute, but if it was a just account he would 99. An acknowledgment that an account is pay it, when he at the same time contended open and unadjusted, or a promise to settle and |