54 Vt. 382 | Vt. | 1882
The opinion of the court was delivered by
We do not decide when debt on a recognizance in a writ is barred by the Statute of Limitations. The decision of that question is not necessary to a determination of this case, for if the action against the plaintiff on his recognizance was barred, we hold that he was not bound to avail himself of that defence. Plaintiff entered into his recognizance at defendant’s request, and his payment thereof must be taken to have been equally at defendant’s request, and for his benefit. Of what avail to defendant would plaintiff’s defence of the statute have been, since the judgment against defendant was in full force at the time plaintiff was sued 1 Shaw v. Loud, 12 Mass. 461.
In Cahill v. Bigelow & Tr. 18 Pick. 369, it was held that the trustee was not bound, against his own choice, to set up the Statute of Frauds, to avoid his verbal promise to pay a debt due from the defendant to a third person. The Statute of Limitations does not extinguish the debt or other liability, but only takes away the right to enforce it against the will of the party liable.
Ellicott v. Nichols, 7 Gill, 85, relied upon by the defendant, is not in point. There the question was, whether one partner, by acknowledgments and admissions made after the dissolution of the firm, and after the statutory bar had attached to the firm note in suit, could remove the bar as to the other partners, and it was held that he could not.
In Bachellor v. Priest, 12 Pick. 398, plaintiff’s liability on the draft indorsed by him never became fixed, and so it was held that the consideration for the bill in suit, which he held as collateral security for his indorsement of said draft, had failed. It is not necessary, as an unqualified proposition, that a surety should be under legal obligation to pay, in order to raise an implied promise on the part of his principal to repay. Jackson v. Jackson, 51 Vt. 253, is to the contrary. Judgment affirmed.
