43 Vt. 74 | Vt. | 1870
The opinion of the court was delivered by
This is an action of assumpsit in which the plaintiffs seek to recover the amount they claim is due upon a promissory note dated August 16th, 1845, for $338.95, upon which various endorsements were made-prior to the commencement of the suit. The defendant pleads the statute of limitations; to which the plaintiffs reply a new promise, within six years next before the 6th day of February, 1861, on which day the writ in this suit was issued. To take the case out of the statute of limitations the plaintiffs rely on the last endorsement on the note, which was made February 7th, 1861, for property which the plaintiffs bargained for several months before the date of that endorsement, but did not remove the property until the day on which the endorsement was made. It is claimed by the plaintiffs that the property operated as payment only from the time they took it into their custody. The defendant claims that if the property constituted part payment of the note at all, it should be treated as made at the time the plaintiffs bargained for it, which was more than six years prior to the commencement of the suit. Hence the general inquiry is, when did the transaction take effect as payment upon the note. We think the payment must, for the purposes of the statute of limitations, be regarded as made at the time the plaintiffs elected to take and the defendant consented they might take the property
The judgment of the county court is affirmed.