69 Vt. 183 | Vt. | 1896
The only contention is whether the action, on the note in suit, is barred by the statute of limitations. To this plea the plaintiff replied, absence from and residence out of the State, with no known property within it. Rejoinder, a traverse. The note is payable on demand, and dated May 19, 1868. Immediately upon giving it the defendant removed from and resided out of the State until about 1880. About that time he came to Barton and kept a hotel about a year. The defendant introduced no testimony.
(1) He insists that the plaintiff’s testimony had no tendency to show that, after he ceased to keep hotel at Barton, the defendant was absent from and resided out of the State. The testimony of Newcombe was, in substance, that the defendant told him that he had been keeping hotel seventeen or eighteen years, that he was at Barton about a year, and that all the other places where he kept hotel, and where he spent his summers, were out of the State. This had a tendency to show that the defendant, during these years, was present where he was carrying on business, where he said he spent his summers, that he resided at the places named, and therefore was absent from and resided out of the State, except while at Barton. Hence, the court committed no error in submitting this testimony to the jury as tending to establish the two facts of absence from and residence out of the State. Nor did the court err in its instructions to the jury, that the statement in the lease which the defendant in 1894 took of the hotel at White
(2) While the plaintiff gave some testimony, tending to show that the defendant left no known attachable property in the State, the court, against the exception of the defendant, held and charged that if “when he got through keeping hotel at Barton, the defendant removed from the State and was thereafter absent therefrom and non-resident therein, until he came to White River Junction, the plaintiff was entitled to recover, as, in that case, the burden would be on the defendant to show that he had the requisite property in the State, which he had not attempted to do.” This holding is directly sustained by the decisions of this court in Hill v. Bellows, 15 Vt. 727, and in Rixford v. Miller, 49 Vt. 326, in each of which the identical question was raised and decided. It is in substance so held in Mazozon v. Foot, 1 Aik. 282. The defendant contends that this court held in Stevens v. Fisher, 30 Vt. 200, and in Batchelder v. Barber, 67 Vt. 254, that the burden to prove that the defendant at the time the cause of action accrues, “is absent from and resides out of the State and has not known property within the State which can by common process of law be attached,” rests upon the plaintiff to prevent the statute running. Some of the language used, apparently, supports this contention. But in neither was the precise question raised, nor considered. In Stevens v. Fisher, the defendant pleaded that the plaintiff’s cause of action did not accrue within eight years next before the commencement of the suit. The plaintiff replied that the defendant was out of the State, before and at the time the cause of action accrued, that he first returned at a specified date, and that he brought his action within eight years thereafter. He did not reply that during that time the defendant also resided out of the State, nor that he had no known attachable property in it. The plaintiff proved
The statute of limitations is one of rest from litigation. It does not assume that the debt in suit has been paid, but rests upon the principle that the plaintiff shall have a certain time in which to enforce its payment, and that if he neglects to take steps during such period to enforce it he shall no longer be entitled to that right. It is a bar of the right created by statute. The debtor must both plead and establish it. The statute proceeds upon the assumption that, during the statutory period, the debtor is so circumstanced that his creditor can take steps to enforce collection of his debt, either by a judgment personally binding the defendant, or by a qualified judgment against his property
Rixford v. Miller, 49 Vt. 319, is an action of book account. The pleadings in the case are not set forth in detail. It is stated that the defendant claimed, “that as the cause of action accrued more than six years before suit was brought, and as the plaintiff had not shown that the case came within the provisions of § 15, c. 63 Gen. St. (V. S. 1211) it was barred by the statute of limitations.” This objection was unsustained, and the case decided on the doctrine of Mazozon v. Foot and Hill v. Bellows. Hence, on the authority of these decisions and on principle, the ruling of the trial court was correct. While the statute required that the plaintiff, in his replication, should include the negative averment, that defendant during his absence from and residence out of the State had not known attachable property in the State, this negative averment was not traversable, nor put in issue by the defendant’s traverse of the replication; that to have made the subject of known attachable property regularly available to the defendant, in support of his plea, he should have rejoined avering affirmatively, such known attachable property. This order of pleading places the burden of proving that he had known attachable property on the defendant, and if he did not
This result is confirmed by text writers on the subject of burden of proof.
Mr. Greenleaf says: “The obligation of proving any facts lies upon the party who substantially asserts the affirmative of the issue.” I Green. Ev. § 74, Mr. Starkie gives substantially the same rule. I Starkie on Ev. 376. Both say that the cases in which the plaintiff grounds his right of action upon a negative allegation are an exception to this rule. I Green. Ev. § 78; I Starkie on Ev. 377, 378. An examination of the cases, given by these authors, as constituting the exception, shows that unless the negative on which he grounds his right of action is established by the plaintiff, the law presumes against the existence of the negative. The test determinative of upon whom the burden of proving a given fact rests, is whether, if the fact is not established, it will be fatal to such party’s right to recover. II Am. & Eng. Ency. Law 655. This rule and exception thus tested, are, in legal effect, the rule expressed in Art. 93 of Stephens Digest of Evidence, thus, “Whoever desires anycourt to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts, or denies, must prove that those facts do or do not exist.” In the case under consideration, the plaintiff establishes his right to recover, if nothing more is shown, on producing the defendant’s promissory note uncancelled. The defendant says, by his plea, that the plaintiff has become barred from exercising this right because more than six years elapsed after the right accrued before he brought his suit. The 'plaintiff rejoins precluch non, because the defendant was absent from and resident out of the State and had not known attachable property in the State. If the plaintiff establishes that the defendant was so absent from and resident out of the State,
Judgment affirmed.