Hapgood v. Southgate , 21 Vt. 584 ( 1849 )

The opinion of the court was delivered by

Hall, J.

It is insisted, in behalf of the defendant, that the statute of limitations is a bar to the plaintiff’s account, for two reasons; first, because the credit was given more than six years before the presentment of the claim to the commissioners; and secondly, because the credit was not proved by competent testimony.

The fifteenth section of chapter fifty eight of the Revised Statutes contains a provision, allowing creditors of an estate to prosecute their claims before commissioners, when the debtor dies before the statute has become a bar, and also when he dies within thirty days after it has become a bar. But this provision is limited by section twenty nine of the same chapter to causes of action, which accrue after the statute takes effect. In this case the cause of action accrued previous to the Revised Statutes, and the claim is therefore not aided or affected by that provision.

In Conant v. Hitt, 12 Vt. 287, it was held, that the decease of the creditor did not interrupt the running of the statute of limitations, so as to save a suit brought by the administrator more than six years after the cause of action had accrued. It was however said by the eourt to have been held, that the death of the debtor suspended the right of action, until an administrator was appointed, and such, it is believed, has long been understood to be the law of this state. Several authorities are, however, relied upon by the counsel for the defendant, to show that the death of a defendant has no effect upon the operation of the statute.

We have not thought it necessary to inquire very particularly what the English law is on this subject; because, our system of settling estates being different from that in England, the rights of creditors must in many respects stand upon a different footing. At the time of the death of the defendant’s intestate, his estate could have been settled in no other manner, than by the appointment of commissioners to adjust all claims against it. The plaintiff could have brought no action against the administrator upon his account. He could only present his claim to the commissioners after their appointment. The appointment of commissioners and the presentation of claims to them have reference to claims, as they existed at the time of the intestate’s decease. The estate of the deceased, if insolvent, is to be distributed among his creditors, who were such at the time of his death; and if the plaintiff were a creditor at his decease, it is all that could be necessary (in the absence of any special statutory provision on the subject) for him to show before the commissioners.

Upon the other question in the case I at first entertained considerable doubt, but have, on reflection, felt constrained to concur with the other members of the court in the decision we now make.

It is stated by Judge Mattocks, in McLaughlin v. Hill, 6 Vt. 26, to have been held in a previous case by the supreme court, that a party in the action on book was not competent to testify to a new promise to revive an action, against which the statute had run. The extent of this decision seems, indeed, to be somewhat qualified by the statement of Chief Justice Williams in Pratt v. Gallup, 7 Vt. 347; in which latter case it. was, however, held, that the parties were not competent to testify to the fact of a tender. It is doubtless the general understanding of the profession, that a party is incompetent to testify to a new promise, to revive an account barred by the statute, though no reported decision to that effect is found. The reason assigned for excluding the testimony of the party to such fact js, that it is unconnected with the original merits of the case, — that it does not relate to the actual dealings between the parties. •

It is obvious, however,that cases might occur, in which the testimony of a party would be clearly competent, though the'effect of it would be to prevent the operation of the statute. If, for instance, the plaintiff’s account consisted of a single item, and the question were, whether the article had been delivered, or was to have been paid for, within six years next before the time of bringing the action, there seems no doubt, but that the plaintiff would be competent to testify, both as to the time of the delivery and the term of credit. The defendant might also testify to the same matters. This testimony would be in relation to the original dealings between the parties ; and it has always been held, that the parties were competent to testify to the time and manner of the delivery of the articles, and all the facts and circumstances relating to the account.

In the present case the question is as to the fact of the delivery of an article by the defendant to the plaintiff, and credited on the plaintiff’s book, and the time and manner of such delivery. The question relates directly to the dealing's between the parties, and it is difficult, if not impossible, to distinguish it, so far as it regards the character of the proof, from the case before put, of a single item of the plaintiff’s account. The questions whether such dealings did occur between the parties, and as to the time and circumstances under which they occurred, are questions directly relating to the accounts; and it is not perceived, how the testimony of the parties can be excluded, without adopting a new rule, in conflict with the whole current of previous decisions. We are therefore of opinion, that the testimony of the plaintiff to the item of credit in this case was competent, though the effect of it was to prove dealings between the parties within six years, and to save the plaintiff’s account from the operation of the statute of limitations.

The judgment of the county court is therefore affirmed.