69 Vt. 147 | Vt. | 1896
The question litigated before the county court was whether the balance otherwise payable to the plaintiff, as shown by the accounts of the defendant, should be reduced by an allowance of the Tinker order as an indebtedness of the district; and the court rendered judgment for the plaintiff for the balance shown by the accounts with that order disallowed. The defendant excepted to the introduction of the auditor’s report showing the accounts, and to the rendition of such judgment. In the accounts presented were two items of cash received for tuitions and hay, to which the attention of the court was not specifically directed; and the defendant now claims that the judgment was erroneous because these items entered into the balance, and insists that it can avail itself of this error under the exceptions taken. But we think a consideration of this matter is forbidden by the rule which restricts this court to the review of questions raised below. It is clear that the county court assumed, and had a right to assume, the correctness of every item to which its attention was not particularly called. The right of the district to have these items excluded from the accounting was not asserted on the trial, and the question will not be considered here.
The county court found and certified the facts in regard to the Tinker claim, and “upon all the testimony in the case * * decided that the defendant district was not legally indebted” upon the order. The plaintiff insists that this was a finding of facts, and that consequently no question was saved by the defendant’s exceptions. But the court found the facts to be as testified to by Mr. Tinker, and it appears from his testimony that the order was given him for his services as treasurer, and that it had not been paid.
Upon the finding made, as above stated, it is to be considered that the order was legally issued. So the case presented is that of a just debt, barred by the statute of limitations. The running of the statute does not extinguish a debt, but prevents its collection if insisted upon. The right to plead the statute is a personal privilege, of which the debtor may avail himself or not as he chooses. Smith v. Lincoln, 54 Vt. 382; Sanger v. Nightingale, 122 U. S. 176. Doubtless the legislature might have transferred the rights of the old district to the town district in such a manner as to give the latter the same right to insist upon the statute. But it has not done this. The provision is that the indebtedness shall be paid by the district in the settlement of its pecuniary affairs. The adjustment by which the balance for transfer is to be determined is left in the hands of the old district. In malting that adjustment the district could lawfully pay a just debt, although barred by the statute.
Judgment reversed, and judgment for plaintiff for $1561.98, with interest from January 1st, 1894.
