Cardell v. Carpenter

43 Vt. 84 | Vt. | 1870

The opinion of the court was delivered by

Wilson, J.

The questions in this case arise upon the defendant’s exceptions to the ruling of the county court on the issue joined under the plea of the statute of limitations. It is insisted by the defendant’s counsel that the statute was not interrupted by the first period of his service, for the reason that that period was before the statute was passed authorizing such deduction. The county court deducted both periods of the defendant’s service We think this was clearly correct. The statute of limitation, applicable to the facts of this case, took effect on the first day of August, 1868, at which time the limitation under the former statute had not fully run. This being so, it was competent for the legislature to interrupt the running of the statute, for the cause named in the 20th section of chapter 63, of the. General Statutes, and make the provisions of the new limitation so far retrospective as to reach cases upon which the statute bar had not then fully run. That this was the intention of the legislature, is plain from the' language of said section. It 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, or to 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, (that is, against such soldier,) 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.” It is conceded that the defendant was an inhabitant of the state; that he volunteered into the- service named in the section above quoted ; that the plaintiff had against the defendant, at the time of defendant’s volunteering, the cause of action set forth in the declaration, and that the defendant, as such soldier, was absent in such service, during the periods mentioned in the bill of exceptions, after the cause of action accrued. The facts placed upon the record bring the case within the provisions of the limitation of said section. This construction of the statute is sustained by all the decisions in this State, upon análagous questions, which arose under the provisions of the 15th section, which, like the 20th section, excepts certain cases from the operation of 'the general limitation as provided in section five.

The judgment of the county court is affirmed.