Chapin v. Warden
15 Vt. 560
Vt.
1843
Check Treatment

The opinion of the court was delivered by

Williams, Ch. J.

The court are frequently called on *563to repeat the law, which we have considered as well settled, on the subject of the statute of limitations. The case before us, seems only to call on us to reiterate the decision, that an unqualified acknowledgment of a debt as still subsisting, and unpaid or unsettled, from which a promise to pay, or settle, may be inferred, especially when there is intention expressed to resist the payment, and rely on the statute, is sufficient to remove the bar to recovery, interposed by the statute of limitations. In this case there was an admission of the existence of the notes, and a claim that the defendant had an account to be set off against them, and a promise to call and settle both the notes and account, within a few days. There was, impliedly, at least, if not expressly, a promise to adjust the account and pay whatever balance might be found due on the notes; and it was sufficient, agreeably to all our decisions, to remove the bar created by the statute.

On the question whether this decision was such an one as can be revised in this court, it is to be remarked that every question of law, decided by the county courts, may be revised in this court. Their decisions on questions of fact are final. When the trial of the issue is by the court, it is sometimes difficult to distinguish between what they intended, as deciding a question of law, and what, as a question of fact. The case of Phelps v. Wood & Stewart, 12 Vt. R. 256, was determined by the county court, on an issue of fact joined to, and tried by, the court; yet the decision of the county court, on that issue, so far involved the determination of a question of law, that it was revised and reversed, on exception, by the supreme court. 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 limitation, their effect is a question of law. But if the facts are doubtful, it then becomes a mixed question of law and fact. This was the view taken by the court in New-York, in the case of Clarke v. Dutcher, 9 Cow.674, and is undoubtedly correct. In the case before us, the facts were undisputed. The county court say, in the exceptions, “ upon the foregoing ‘facts, the court considered the testimony was not sufficient ‘ to take the case out of the statute of limitations. ” This was a decision of a question of law arising from the facts, and is subject to be revised here on exceptions.

*564The judgment of the county court is reversed, and a new , . , , , trial awarded.