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Aldrich v. Morse.

Upon these facts the court decided that the debt was barred by the statute of limitations, and rendered judgment for the defendant.

Exceptions by the plaintiff.

P. Dillingham for the plaintiff.

There can be no severance of a joint debt, so that a payment, part payment, admission of the debt, or new promise made to one, will not be equally good to the other, in taking the case out of the statute of limitations.

Here was a suflicient acknowledgement of the debt to Stevens, to take the case out of the statute. Olcott v. Scales, 3 Vt. 173.

Here was also a part payment, which would save the debt from the statute. Strong v. McConnell, 5 Vt. 338.

At all events, the offer to pay Keyes fifteen dollars, though accompanied by a refusal to pay more, removed the statute bar as to so much ; and for that the plaintiff should have recovered. Phelps v. Stewart & Wood, 12 Vt. 256.

A. M. Dickey and L. B. Peck for the defendant.

There was no error iu the county court, for the testimony shows that the defendant would give $15 to be discharged from Keyes' half of the debt, and would give no more.

In order to take a case out of the statute of limitations, there must be an acknowledgement of the debt as still due, with an apparent willingness to remain liable for it, or, at least, without an avowed intention to the contrary. Here the defendant openly declared his determination not to pay more than the $15, saying he ought not to pay anything. Phelps v. Stewart et al., 12 Vt. 256. Carruth v. Page, 22 Vt. 179. Brainard v. Buck et als., 25 Vt. 573.

The opinion of the court was delivered by

ISHAM, J. This is an action of debt on an allowance of commissioners. The claim was allowed on the 8th of September, 1843, and a balance was found due from the defendant to the estate of Josiah W. Rogers, on which the plaintiff is administrator. To this claim the defendant has pleaded the statute of limitations.

Aldrich v. Morse.

The question arises, whether the statute bar has been removed by a subsequent promise to pay the debt. It appears that soon after the allowance by the commissioners, this claim, together with the effects of that estate, were sold at public auction, by the administrator, to Stevens and Keyes, for the sum of twenty dollars. Under that sale, Stevens and Keyes became the joint owners of this claim.

To avoid the statute of limitations, it was proved, that on the 4th of August, 1847, Stevens presented this claim to the defendant. The defendant then proposed to pay him what he had paid for his part of the claim, being ten dollars, and five dollars in addition for his trouble, if he would discharge his half of the debt, and said that that was all he could afford to pay. The proposal was accepted by Stevens, and on the payment of that sum by the defendant, Stevens discharged him from one-half of the claim. At the same time, the defendant told Stevens that he would give the same sum to Keyes for his half of the claim, but would not give any more, and requested Stevens to make that proposition to him. The general principle governing cases of this character, is well settled in this state. To remove the statute bar, there must not only be an acknowledgement of a subsisting debt, but it must not be accompanied with any unwillingness to pay it ; for an implied promise, at least, to pay the claim, is necessary to prevent the operation of the statute. On the application of this principle to this case, it is clear that the statute bar is not removed from this claim by the transaction which took place with Stevens. The proposal to pay, and the actual payment of ten dollars, was not made under those circumstances from which a promise, express or implied, can be inferred, to pay the balance of the debt; and his statement, that that was all he could afford to pay, was an express declaration of his unwillingness to pay the remainder of the claim. The proposal to pay the same to Keyes, which Stevens was authorized to make to him, was accompanied with the declaration that he would pay no more. That cannot be considered as an acknowledgement of a subsisting indebtedness on that claim, and a willingness to pay it; every feature of the testimony rebuts such an inference. It was merely an offer to compromise the matter on those terms, accompanied with an express refusal to pay any more. As Keyes reNoyes v. Estate of Hall.

fused to accept the proposal made by the defendant, the plaintiff, for his benefit, cannot recover the sum which was offered as a compromise of the matter. We think the evidence is insufficient to remove the statute bar.

The judgment of the county court is affirmed.

Amos Noyes v. THE ESTATE OF BENJAMIN HIALL.!

Taxes paid recoverable in an action on book. Statute of limita

tions. Notes included under the term claims. Error in settlement.

The plaintiff, a constable, had for collection several taxes against the intestate, be

tween whom and the plaintiff there were running and mutual accounts, and it was understood that these taxes should be settled for as a matter of deal and account between them in the settlement of their other accounts; and the plaintiff paid over the amount of the taxes without collecting them. Held that he might recover the amount so paid in an action on book account.

A mutual agreement between two persons that they will take no advantage of the

statute of limitations having run upon the other's claims, but that they will thereafter settle without objection on that account, will prevent the operation of that statute; and the expression of the opinion, by one of them, that there will not be anything due from him upon such a settlement, will have no effect.

Notes held by one party against the other, would be included under the term

* claims" in such an agreement.

Upon a partial settlement, the amount of the intestate's account was ascertained and

a due-bill given for it, which included items which the plaintiff had previously paid to a third person who was authorized to receive it. Held that the fact of such a previous payment might be shown, and that its effect was, not to vary the operation of, or contradict the due-bill, but to establish a valid offset to so much of it.

APPEAL from the decision and report of the commissioners upon the intestate's estate. The plaintiff filed a declaration on book, and also upon certain notes. An auditor was appointed and, by agreement, all the claims upon either side were referred to his decision, and he reported the following facts in reference to the claims which were disputed.

Under his declaration on book, the plaintiff claimed to recover the amount of several taxes assessed against the intestate.

Noyes v. Estate of Hall.

The plaintiff was constable and collector of taxes in the town of Tunbridge, (where both parties resided,) from 1828 to 1838, excepting the year 1832; and the taxes charged, were legally assessed to the intestate, and he was liable to pay them. They were never charged to him upon any account book by the plaintiff, and no other account of them was kept by the plaintiff than retaining them upon the tax-bills, without crossing or cancelling them as he did in

case of payment. The plaintiff produced the original tax-bills, · showing all the taxes charged for in his account, except items No.

1 to 4, inclusive. The deceased had an accruing account with the plaintiff during all the time covered by the plaintiff's account, and it was understood by the parties that these taxes should be adjusted and settled with their other accounts, as matters of mutual deal and account, and they remained uncollected with the mutual expectation that they would be settled in that way; and the plaintiff, as collector, settled with the town and treasurer from year to year, and paid over the amount of all these taxes.

The plaintiff claimed to recover the amount of two notes, (not negotiable,) given by the intestate to the plaintiff, January 20, 1843, for $209.19 and interest, after April 1, 1843, to which there was no objection interposed except the statute of limitations, which was urged against this and all the items of the plaintiff's account.

On the 20th day of March, 1843, the parties were together at G. Rolfe's office in Tunbridge, to settle their accounts; they looked over the intestate's accounts to that date, and agreed upon its amount at $212.21, and not having time to complete the settlement, and adjust the plaintiff's account also, they postponed it to some future time, but wrote upon the defendant's book as follows.

“ March 20, this day settled this book by due-bill to Hall, and made the same even up to this date, $212.21.

BENJ. Hall,

Amos Noyes ;" And thereupon a due-bill was written and signed as follows.

“$212.21, March 20, 1843. Due Benjamin Hall, on demand, two hundred and twelve dollars and thirty-one cents to apply on settlement. Witness, G. Rolfe.

Amos Noyes." And they then called Mr. Rolfe to witness that they had proceed

Noyes v. Estate of Hall.

ed so far in their settlement; and as they could not finish it, the parties both agreed, and desired Rolfe to recollect that as some of their deal was outlawed, or becoming so, neither of them would take any advantage of the statute of limitations having run upon the others claims, but that they would thereafter settle without objection on that account.

The parties then seperated, and each party occasionally, for some three years or more after this, asked Rolfe if he recollected, and wished him to remember their agreement in relation to waiving the statute of limitations.

The plaintiff afterwards called upon the intestate, a short time previous to the expiration of six years from the giving of the two notes of $209, for the purpose of renewing them, and adjusting their accounts, when the intestate told him he could not then settle with him, but would when he was able, but that he should not be owing him on settlement; and the plaintiff about this time, and before the statute had run on these notes, employed Mr. Sturtevant to go and talk with the intestate about them and their accounts, and he did so; and then the intestate told Sturtevant that it would not do for Noyes to sell those notes, as he (Hall) had offsets to them, but expressed a willingness to settle, and wished Sturtevant to assist them to settle, but said he did not owe Noyes anything. This conversation was in 1848 or 1849. Some time in the spring of 1851, Andom B. Noyes, a son of the plaintiff, asked the intestate why he did not settle with his father, to which the intestate replied that he had once commenced a settlement with him, but there were some things outlawed on both sides, and they agreed not to take any advantage of the outlawing, and that he was ready to settle any time when his father was.

The principal claim in favor of the intestate, was for the amount of the above mentioned due-bill, to the allowance of which the plaintiff did not object, but claimed a deduction from, or offset to it of $15.43, which was charged in the intestate's account for the work of one Wheeler, and included in the amount for which the due-bill was given; and in reference thereto, the following facts appeared.

The defendant owned a carding and cloth-dressing establishment, which Wheeler carried on, but on what terms or conditions, did

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