Rogers v. Judd

5 Vt. 236 | Vt. | 1833

The opinion of the Court was pronounced by

Hutchinson, C. J.

About twenty-four years had elapsed, after the cause of action accrued upon this bond, before the present suit was commenced. From this lapse of time, the defendant urges the presumption of - law, that the condition of the bond was performed, or the debt paid. All this Court have now to decide is, whether the circumstances on which the plaintiff relied to rebut this presumption of lav/, were such as the Court ought to have admitted to be proved, and, when proved, ought to have adjudged sufficient to remove the presumption. I use the alternative expression, because the exceptions, agreed to by counsel, leave it not very certain, whether the County Court excluded the evidence, or instructed the jury against the plaintiff upon its legal effect.

The circumstances were, 1st, The poverty and imprisonment of the plaintiff. -2d, The defendant’s imprisonment, and the decease of Stephen Judd, the co-obligor.— And 3d, The plaintiff’s praying out a writ upon this bond, a day or two before the twenty years expired, and being so poor he could not procure bail to ensure costs, without which his writ would abate.

With regard to these circumstances, it does not appear where or what the plaintiff’s imprisonment was, nor that of the defendant. They might both have been imprisoned, not in close confinement, but within the limits of the same prison; and might sue each other daily, notwithstanding such imprisonment. Had either of them been imprisoned in a foreign country, so that he could have no access to the other, or the other to him, and no means of efficiently directing a suit to prevent a presumptive bar, it would have merited a very different consideration.

Again, the poverty relied upon, to have any effect, must be such as to deprive one of all power to sue; not for a day or two merely, but during a great share of the time, while the presumption runs against him. It is not very certain that such poverty ever existed in this state, for any considerable length of time.

The defendant’s poverty might render the collection of the debt precarious, and even improbable; and yet furnish no reason why a suit should not be commenced, and the right established, before the defendant’s witnesses of performance, or of payment, were all dead, or gone to parts unknown. Besides, in this case, the plaintiff shows in what the defendant’s property consisted, to wit, in a marble factory. So it seems he had property, and property too, that might have been attached for a debt due from the defendant.

Doolittle, for plaintiff. Bates, for defendant.

The plaintiff’s applying for a writ on his bond, and even obtaining one, amounts to nothing to r.ebut the presumption of payment, until such writ is delivered to-an officer, who. would make service of the same, if the debtor was to be found. If otherwise, the creditor might easily keep his bonds alive, without danger of testing the validity of his demand, till his debtor’s means of defence were gone, and his witnesses dead. There must be steps- taken, which tend to bring the matter to an issue, before the presumptive bar becomes complete. If the application for a writ, and failure to procure bail, could have any effect, it surely could not give four years for the creditor to sleep on his demand, and yet have time given him to collect.

None of th.e cases, cited, by the plainti fPs counsel, support his claim in this. In the case cited from Day’s Reports, all that the Court decided was, that the twenty years had not elapsed-. The facts,-is. the action for rent, were such as were calculated'to'.rebut the presumption of payment. The rent:was.due in England, where the plaintiff lived; and the.deféndáht-"-came to America; and, when enquired of by the plaintiff’s agent, denied executing the lease.— And no action could have been brought, with any prospect of recovering judgement, till some person acquainted with the defendant, should arrive and identify him as the person, who did execute the lease.

We consider the circumstances relied upon, insufficient in their character to rebut the presumption of payment, which arose from the lapse of twenty-four years.

The judgement is affirmed, with costs.