Minkler v. Estate of Minkler

| Vt. | Jan 15, 1844

The opinion of the court was delivered by

Bennett, J.

The auditors have reported the facts found by them; and whether the facts, which are found, are sufficient to take a case out of the statute of limitations has been held in this state to be a question of law.

The auditors report, that, in the spring of 1838, the testator said to his wife, “ that he had never let the plaintiff have much of any thing; that he had been a good, faithful man ; and that he was going to settle with and pay him.” It is well settled that, to take a case out of the statute, the admissions need not be made to the party himself, or to his agent, or in his presence. Peters v. Brown, 4 Esp. R. 46. Clark v. Hougham, 2 B. & C. 149, [9 E. C. L. 47.] Oliver v. Gray, 1 Har. & Gill. 204. Whitney v. Bigelow, 4 Pick. 110. The admission proved is full to show, in effect, that there was an unsettled account between the parties; and a willingness to settle it, and pay the balance due. This has always been held sufficient to save the demand from the effect of the statute. In Blake et al. v. Parleman, 13 Vt. 574" court="Vt." date_filed="1841-03-15" href="https://app.midpage.ai/document/blake-v-parleman-6572529?utm_source=webapp" opinion_id="6572529">13 Vt. 574, admissions, not as direct as these, were held sufficient.

The decision of the county court upon the motion for a new trial is not the subject of revision in this court upon a bill of exceptions. This court sits as a court of error, and the granting or'refusing a new trial rested in the discretion of the court below. Houghton v. Slack, 10 Vt. 520" court="Vt." date_filed="1838-03-15" href="https://app.midpage.ai/document/houghton-v-slack-6572085?utm_source=webapp" opinion_id="6572085">10 Vt. 520.

The judgment of the county court is affirmed.