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Hall v. Nasmith.

Davidson, 2 Sandford's Ch. R. 61; Mazozon v. Foot, 1 Aik. 282; Hill v. Bellows, 15 Vt. 727. Didier v. Davidson, 2 Barb. Ch. 477. It would seem to be suflicient to break the suspension when the debtor either returns, or takes up his residence in the state, in an open and public manner so that the creditor, by the use of diligence, might be able to serve process. In some of the states, the statute only provides for deducting a single absence from the limitation. Cole v. Jessup, 2 Barb. Sup. Ct. R. 309. Such seems to have been the plaintiff's view in the present case. But our statute evidently provides for the deduction of all absences of the debtor from the state, while he resides out of the state. And the question of the continuing absence and non-residence may be determined, upon a general traverse of the defendant's plea, by giving the proof of return in evidence. Graham v. Schmidt, 1 Sand. Sup. Ct. R. 74.

In some of the states, even temporary absences are to be deducted from the time of limitations. Vand v. Huston, 4 Gilm. (Illinois) 125. In other states where the terms of the exception are, if the debtor shall be without the state, temporary absences are not taken into the account. Sage v. Hawley, 16 Conn. 106. It seems to be the purpose of the statute of this state that the creditor shall have the full term of limitation in which to bring his action. When the debtor relies upon a return into this state as an excuse for the plea of absence, he should, ordinarily, reply a continuing residence or commorancy within the state.

But in the present case, as the plaintiff does not assert any continuing absence before the debt was barred, which is the more common mode of drawing such replications, but only that the defendant was absent from the state before the debt was barred, which, on the common mode of construing pleadings against the pleader, could make but an absence of a single day, the rejoinder of " frequently in the state," will of necessity supply this one day, and thus make out the full term of the statute, wherein the party might have brought suit.

Judgment reversed; but as both the replication and the rejoinder seem defective in regard to raising the real question which the parties seem desirous of trying, it seems proper to allow both parties to amend their pleading without terms.

CASES

ARGUED AND DETERMINED

IN TIIE

SUPREME COURT

OF TIIE

STATE OF VERMONT,

FOR TIIE

COUNTY OF CALEDONIA,

AT THE

APRIL TERM;

AND AT THE

CIRCUIT SESSION, IN SEPTEMBER, 1856.

PRESENT,

Hon. ISAAC F. REDFIELD, CHIEF JUDGE.
Hon. PIERPOINT ISHAM,

ASSISTANT JUDGES.
Hon. MILO L. BENNETT,

CHARLES D. STAPLES v. PORTER FLINT.

Equitable claim of plaintiff against another no defense to his legal

claim, arising out of the same matter, against the defendant.

The defendant gave the plaintiff a written lease of certain premises, and before

the expiration of it he deeded the same premises to a third person without making any reservation of the plaintiff's rights. Held, that the fact that the grantee had such notice of the plaintiff's rights as would enable the plaintiff to maintain them in a court of equity, constituted po defense and would not prevent the plaintiff from pursuing the defendant on liis contract in an action at law.

Staples , Flint.

Assumpsit upon a lease of a certain piece of land, from the defendant and Franklin Larned, (as to whom a non est inventus return was made on the plaintiff's writ,) to the plaintiff, upon which to erect a bowling alley. Plea, the general issue; trial by jury, June Term, 1855,-POLAND, J., presiding,—when a verdict was returned for the plaintiff. Upon the trial, exceptions were taken by the defendant, the nature of which, and the facts upon which they were founded, being sufficiently stated in the opinion of the court.

T. Bartlett for the defendant.

Peck & Colby for the plaintiff.

The opinion of the court was delivered by

REDFIELD, CH. J. The defendant Flint and his associate Larned leased to the plaintiff, by a wricing, not acknowledged, the land on which to crect a bowling alley, as long as the building should be used for that purpose, upon certain conditions. After the alley was erected, they conveyed the land to a third party, representing to such party that the plaintiff had forfeited his lease by non-performance of certain conditions. It turned out, upon trial, that the plaintiff had not incurred such forfeiture. It is now urged that as the grantee of the land had notice of the plaintiff's title, he is bound by it, and may be compelled to confirm it. This is probably so. But the conveyance did vest the whole title in the land, as against the defendant and Larned, in the grantee; and we think the plaintiff is not bound to contest his claim in equity, with the grantee, which will only bring it around against the defendant in another form, if he prevails; but that he may go against the defendant, at law, upon his written contract.

Judgment affirmed.

Carpenter v. French.

HORACE CARPENTER v. Micah FRENCH.

Contract.

A writing respecting the sale of the farm of the plaintiff to the defendant, which con.

tained some agreement respecting the disposition of certain fodder then on the farm, was left in the possession of the plaintiff, who, not having it with him when the defendant met him to complete the purchase of the farm in pursuance thereof, gave to the defendant, before the delivery of the deed, and upon his calling for the original agreement, another writing agreeing to produce the first one, or take the defendant's recollection and construction of it. Held that this bound the plaintiff to take the defendant's recollection and construction of the original writing if not produced, though the plaintiff proved its loss, and swore to its being different in its provisions from those insisted upon by the defendant.

BOOK ACCOUNT. The plaintiff's account contained but one charge, which was for taking care of eighteen head of the defend. ant's cattle for ten and a half weeks in the spring of 1854, which the auditor allowed at $ 12.96, subject to the opinion of the court upon the following facts.

In the fall of 1853, the plaintiff sold to the defendant his farm in Barre. The bargain in relation to the farm was made, and its terms, as understood by the parties were reduced to writing, and signed by the parties. This writing was kept by the plaintiff, with the understanding that he was to meet the defendant the next day at the town clerk's office with the writing and execute the deed.

The next day the parties did meet as agreed, and before the deed of the farm was delivered to the defendant, he called upon the plaintiff for the writing containing the terms of the bargain. The plaintiff informed the defendant that he had lost it, and the parties undertook to make out a substitute, in relation to the fodder, and the manner in which it was to be fed out, but not agreeing as to its terms, the plaintiff gave the defendant an obligation in writing, of which the following is a copy.

“ This is to show that whereas Micah French signed a paper, of which I took the charge, and which I do not now find. I obligate myself to produce the same, or take his recollection and construction of it.”

Both parties agreed that the original writing contained a stipulation that the plaintiff was to fodder his own stock on the farm till he left, which was to be in March, 1854, and that what fodder the plaintiff did not want for his stock, he was to sell to the defendant

Carpenter v. French.

at a price to be agreed upon; but they disagreed as to whether the plaintiff, in the bargain, agreed to feed, without compensation, the defendant's stock to be furnished at the barn-yard, out of certain fodder there which the plaintiff had sold to the defendant; the plaintiff swearing that the writing contained no such stipulation, and the defendant swearing that it did. The auditor deeming that, by law, the burden of proof rested upon the defendant to make out the contract as he claimed it, found that he had failed so to do; and that therefore the plaintiff was entitled to recover. The original writing was not produced before the auditor, and the loss of it was proved by the testimony of the plaintiff.

The county court, June Term, 1855,- POLAND, J., presiding, rendered judgment on the report for the plaintiff for the amount allowed in his favor by the auditor. Exceptions by the defendant.

Peck & Colby for the defendant.

The question, decisive of this case, is as to the effect of the written contract of the plaintiff in which he binds himself to adopt the defendant's statement of the lost writing.

We insist that this agreement is valid, made on good consideration, and should be enforced in this suit by way of estoppel. As to consideration, the duty of the plaintiff to produce the lost writing, and the waiver of the defendant's right to it before proceeding to make out deeds, was a good consideration for the plaintiff's promise. As to its validity, it is the common case of an agreement to be bound by the decision of an umpire; or more properly, it is an admission upon which the defendant was induced to act and did act, like the admission by a party for the purpose of trial, which is conclusive; 2 Stark Ev. 21.

As to the remedy, it is obvious the agreement must be enforced in court specifically, or all remedy is denied. For if the defendant sues for the breach of the agreement, the plaintiff's testimony will still deprive him of recovery; and if not, surely this judgment will be a conclusive bar.

G. W. Stone and J. A. Wing for the plaintiff.

The auditor having found the fact that the plaintiff performed the service, and the value of the same, there seems to be no rea

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