20 Vt. 351 | Vt. | 1848
The opinion of the court was delivered by
After the long usage which has obtained in this state, and repeated decisions of this court sanctioning such usage, it is entirely too late to deny to a written contract, having the usual form of a promissory note in every particular, except that it is payable in some specific article, the properties of such an instrument’. The replication, that the paper was duly witnessed, was therefore a good answer to the plea of the statute of limitations.
The only other question, which the case presents, is, whether the county court were correct, in denying to the defendants the right of setting off against the plaintiff’s demand the two notes executed by the plaintiff to Foster, and which, at the time of trial, were in the hands of the defendants.
Neither does the fact, that both defendants possessed the notes at the time of trial, and attempted to file them in offset to the joint debt due from them, afford any presumptions, which can remove the difficulty. So far as this particular question is concerned, possession is determined by the legal right; if that were in both, the possession of either would be the possession of both. I should not be inclined to attach any decisive importance to the terms, in which this notice was couched, provided attending circumstances were such, as would naturally induce a belief in the plaintiff, that the notes were procured for the purpose of satisfying this debt, and that Jonas Fletcher intended to apprise him of that fact. The fact, that a joint debt existed against the two, may have some tendency that way ; but the circumstances already adverted to, in respect to the full indorsement and special notice, tend much more strongly to an opposite con-
However this may be, there was no error in the judgment of the county court, and the same is affirmed.