Wires v. Farr

[46] The opinion of the court' was delivered by Bennett, J. "We think, the replication to the pleas of the statute of limitations, cannot be sustained. The replication closes, by tendering an issue, that the present suit was commenced within six years next after making the promises, and next after the cause of action had accrued, saving the time defendant was out of the State, as aforesaid. If we give effect to the words, as aforesaid, as being equivalent, when taken in reference to the averments in the replication, that the defendant had no known property in this State, which could be attached by the common and ordinary process of law, while out of the State himself, yet the replication cannot be sustained, consistently with the construction, which we think should be given to the act of 1832. By the act of 1.797, the notes would have been barred, though the defendant left the State in the manner alledged, within the six years. Under the act of 1797, the statute, having commenced running, was not arrested, though the party subsequently removed out of the State. By the act of 1832, if any person, against whom there was, or might be any cause of action, shall go from this State before such cause of action shall be barred, and shall not have known property within the State, which, &c., the statute of limitations shall not run against such cause of action during the absence of the person from the State. The act of 1832, no doubt embraced cases, where the cause of action accrued before the passage of the act, and applied to persons who were out of the State, at the time of its passage, as well as to those, who afterwards left it; yet we think, that it should not, by a retrospective operation, defeat any rights, which had accrued under the act of 1797, to insist upon that statute, as a bar, and which had become complete before the act of 1832 was passed, and that it was not the intention of the legislature, that it should have such an effect. It was so held in the case, Lowry v. Keyes, 14 Vt. 66; and we now hold, that it is immaterial, whether the statute bar was complete or not, when the act, of 1832, was passed, which simply suspends the effect of the statute of 1797, from and after the passage of the act of 1832, in those cases, which fall within the provisions of the act of 1832. The defendant, in making out the bar, is entitled to have the time computed, that he was out of the State before the act of 1832, [47] was passed, and after the cause of action had accrued. But if the ■defendant had taken issue upon the replication, the plaintiffs might have, on the trial, availed themselves in making out the issue on their part, of any absence from the State prior to the act of 1832. This they were not entitled to do. It is consistent with the pleadings, that the defendant left the State, the very next day after the giving of the last note, in January, 1831; and on these pleadings, we may intend such to have been the fact. If it had been alledged, that the defendant left the State within six years from the making of the promises, and from the time that the several causes of action accrued, and after the passage of the act of 1832, not having any known property which could have been attached, and that the action was commenced within the six years, deducting the time the defendant was out of the state, not having any known property within it, &c.; it would seem that there could be no objection to the replication in this particular. The result is, there is no error in the decision of the county ■court. But on motion, the judgment of the county court was reversed pro forma, and a repleader was awarded on the usual terms.