Smith v. Purmort's Admrs.

The opinion of the court was delivered by MUNSON, J. The declaration contains three counts; the first declaring upon a promise of the administrators, and the second and third upon promises of the deceased. The defendants plead that the several causes of action did not accrue within six years before the commencement of the suit. To this the plaintiff demurs. The plea is sufficient as to the first count, but is insufficient as to the second' and third. When the promise of a deceased person is declared upon, a plea that the cause of action did not accrue within six years before the commencement of the suit is not sufficient. R. L. 972. The plea, as- regards the last two counts, may be true, and still the cause of action not be barred. As the plea assumes to answer all the counts and fails to do so, [381] it is insufficient and demurrable. 1 Chit. Plead. 546 .524; Hathaway v. Rice, 19 Vt. 102. But it is said the first and third counts are insufficient. It is unnecessary to consider the several. points urged against the sufficiency of the first count, regarded as a separate count. The count is improperly joined with the other counts of the declaration. This is an appeal from the disallowance of a claim presented to the commissioners on the estate of Joseph Purmort. "When a claimant appeals from the decision of commissioners he is required to file in the Probate Court a declaration setting forth his claim. Upon entering his appeal in the County Court he is to file in that court a certified copy of such declaration. Upon the filing of such certified copy the County Court is to try the question, and the final decision thereon is to be certified to the Probate Court, where the same proceedings are to be afterwards had as though the decision had been made in that court. R. L. 2272, 2278, 2279, 2283. The decision so certified back is a judgment against the estate of the deceased, to be satisfied from the estate as are other claims allowed against it. It is obvious that a count declaring upon a personal promise of the administrators cannot be made a part of the declaration required in these proceedings. The declaration is insufficient upon general demurrer because of this misjoinder. 1 Chit. Plead 205. In the County Court the claimant was permitted to file a new count, which is the same before referred to as the third count. The defendants moved to dismiss this count as being for a different cause of action, and excepted to the judgment of the court overruling their motion. The defendants’ exceptions are not now before us, but the sufficiency of the count is brought in question by the demurrer ; and without entering upon the question of misjoinder, we hold the count insufficient in that it shows no cause of action. This count declares upon a certain writing executed by the deceased, by which it is claimed he became liable to pay the [382] plaintiff the contents of the notes therein described according to their tenor. The plaintiff concedes that this instrument cannot be held sufficient to support an action, unless in an action upon the notes themselves it would be considered such a recognition of them that a promise to pay them would be implied. ~We think the insufficiency of the count is apparent from this test. The writing purports to be an acknowledgment that the signer has received notice that certain notes therein described are held by the person to whom the writing is given. It is true that the notes are spoken of as secured by a mortgage executed by the signer of the writing, but this is evidently by way of further designation of the notes covered by the notice. This cannot be considered an unequivocal recognition of the notes as a valid and subsisting indebtedness. It is only from such a recognition that a promise of payment will be implied. Hunter v. Kittredge's Est., 41 Vt. 359. Judgment reversed, demurrer sustained, declaration adjudged insufficient, and cause remanded.