Cardell v. Carpenter

42 Vt. 234 | Vt. | 1869

The opinion of the court was delivered by

Wilson, J.

In regard to the question whether, upon the pleadings and evidence, the time the defendant was absent from the state, as a soldier, ought to be deducted in computing the period of the statute of limitations, we think the decision of the county court is correct. Section 20 of chapter 63 of the General Statutes provides that “ in all cases where an inhabitant of this state has volunteered or enlisted, or shall volunteer or enlist, under the laws of this state, or of the United States, or shall be drafted into the service of the United States, for the purpose of executing the laws of the Union, suppressing insurrections, orto repel invasions, who had or shall have, at the time of volunteering or enlisting, any cause of action against any other person, or if such other person had or shall have any cause of action against him, the time of his absence in such service shall not be taken as any part of the time limited for the commencement of his action, or the action of such other person founded on such cause of action.” Section 5 of chapter 130 of the General Statutes provides “when a limitation or period of time prescribed in any of the acts repealed, for acquiring a right,- or barring a remedy, or for any other purpose, has begun to run, and the same'or a similar limitation is prescribed in the General Statutes, the time of limitation shall continue to run, and shall have .like effect as if the whole period had begun and ended under the operation of the General Statutes.” The act of 1861, to prevent the running of the statute of limitations on debts due volunteers in the service of the United States, was repealed by the General Statutes, and they contain a similar provision upon the subject. The object of the limitation, as applicable to a cause of action in favor of a soldier, or against him, is too plain to need any argument upon the subject. It is clear that the statute is retrospective in its provisions and operation. The statute of limitations only affects the remedy, but not the contract. When a statute of limitations is passed it operates upon antecedent as well as subsequent causes of action, unless by its terms it is restrained to the latter. The provisions of the statute applicable to this case are mutual, for they preserve the remedy for the absent soldier as well as against him. We think the rulings of the county court, upon the other points made in that court, are correct, and that the judgment ought to be affirmed.

On motion of the defendant, the judgment is reversed pro forma, cause remanded, and the defendant may replead, on usual terms as to costs.