March, 1842.

Johnson

v.

Rice.

'when a note, payable upon demand, is to be deemed a note WASHINGTON, 'out of time. Eighteen months, eight months, seven months, 'five months, even two months and a half, have been held, 'when unexplained by circumstances, an unreasonable delay. 'On the other hand, in Thurston v. McKown, 6 Mass. R. 428, a note payable on demand, and indorsed within seven days of the time it was made, was held to be indorsed in season to close all inquiry into the origin of the note.' Losee v. Dunkin, 6 Johns. R. 70, decides that two months and a half is such a delay as to subject the holder of the note to such defences as exist between the original parties. Another case referred to by the learned Chancellor, Field v. Nickerson, 13 Mass. R. 131, decides only that a note, payable on demand, and indorsed blank at date, must be demanded of the maker, and notice given to the indorser in less than eight months, in order to charge him. The time within which such a note shall be considered overdue is, I had supposed, totally another matter from that within which demand and notice is to be made in order to charge an indorser, although, as I have stated above, perhaps both should depend upon the same reasons, and the time would thus coincide. In the extract made above, and from its connection, and the cases cited, it would seem that the learned commentator considers the time the same in both cases. If so, it is not, I apprehend, at this day, a matter of much doubt. If such note be negotiated, demand and notice are to be made immediately, in order to charge the indorser. I do not pretend to say the same strictness would be required in order to exclude all inquiry into the origin of the note.

Judgment affirmed.

FRANKLIN JOHNSON V. MARTIN C. RICE.

In an action of trespass or trover against an officer for taking the property of the plaintiff, though taken by virtue of a legal process against another, and as his property, yet, but twelve days notice is necessary.

TROVER for a quantity of rye. Plea, in abatement, that

WASHINGTON, the rye in question was taken by the defendant, as constable Murch, 1842. of Worcester, on an execution against Martin C. Brown, and as the property of said Brown, and that the writ in this case Johnson was served on the defendant on the 4th day of December, 1841, and made returnable on the 11th day of the same December. Demurrer to said plea, and joinder in demurrer.

0. Rice.

This case was commenced before a justice of the peace and appealed to the county court. The county court adjudged the defendant's plea sufficient, and that the plaintiff's writ be abated. To which judgment the plaintiff excepted.

O. H. Smith, for plaintiff.

The provisions of the statute, chap. 28, sec. 10, are substantially a transcript of part of the 24th section of the act of 1797, regulating judicial proceedings, which, for more than forty years, has been construed as not extending to a case like the present. The cotemporaneous exposition of a statute is to be regarded. 1 Swift's Dig. 13.

No case has been decided in this state extending the provisions of said section to the case of an action brought by a stranger to the process under which the officer pretended to act, and we contend that he is not bound to ascertain and take notice of the authority by which the defendant may have acted. He may regard it as a naked trespass, and proceed accordingly.

All the cases to be found in the books are between one of the parties to the process and the sheriff, and where, by statute, it is given expressly against the sheriff.

J. A. Vail, for defendant.

The case

The judgment of the court below was correct. shows that the present action was brought against the defendant for his official acts as constable of the town of Worcester.

The statute is general, and was intended to include all suits brought against sheriffs, high bailiffs, or constables, for any official act in the exercise of their respective offices. Under the statute, before the revision, it was held that writs returnable before a justice of the peace were within the act. Butler v. Lowry, 3 Vt. R. 14.

The revised statute is that every writ issued against any

1842.

'sheriff, high bailiff, or constable, for any default, neglect or WASHINGTON, March, 'misconduct in their respective offices, shall be served at 'least eighteen days before the session of the court to which 'it is made returnable.' Rev. Stat., p. 180, sec. 10.

In the case of Butler v. Lowry, Paddock, J., says, the reason for the extra notice is that the sheriff, who is sued for the act of his deputy, may notify the deputy to come in and defend the suit.

A constable frequently stands in the same situation as to a creditor that the sheriff does to his deputy, and has occasion to notify the creditor to defend the suit, and no good reason exists why the same rule should not apply in the case of a constable that was applied in the case of Butler v. Lowry, before cited. In case of a mere wanton act of trespass on the part of an officer, in taking the property of another under color of legal process, it might deserve consideration whether that would be an official act within the statute. But such is not the case at bar. The case shows it to have been for the official act of the defendant as constable of the town of Worcester, and, at most, the plaintiff can only claim that the officer was guilty of malfeasance or misfeasance, and the word misconduct embraces both.

A sheriff is liable civilly for all acts of his deputy under color of his office. 2 Aik. R. 302. 1 Binn. R. 240. 7 Johns. R. 35. 1 Wend. R. 16.

The opinion of the court was delivered by

BENNETT, J. The statute requires, in case of a suit against a sheriff or other officer for any default, neglect, or misconduct in their respective offices,' that there shall be at least eighteen days notice before the session of the court to which the writ is made returnable, and this action is treated by the defendant, as an action of that description.

But it is to be remarked that this is the common action of trover, and there is no pretence that the right of action arises out of any official neglect or misfeasance of the defendant. None is alleged in the declaration, and none need be proved on trial. The plaintiff is a stranger to the process set up in the plea in abatement; and it would be difficult for me to see how he could call the officer to an account for his official conduct under a process in which he had no interest. The VOL. XIV. W. R. IV. 50

Johnson

v.

Rice

Cross

WASHINGTON, defendant is sued as an ordinary tort-feasor, and is liable as March, 1842. such, provided the property turns out on trial to belong to the plaintiff, and not to Brown. The plea is insufficient, upon the ground that this is not a case requiring more than twelve days notice. The plea is obnoxious to other objections, but it is of no importance to consider them.

v.

Conner.

The judgment of the county court is reversed, and judgment that the defendant answer over.

LUTHER CROSS v. EDMUND CONNER.

In an action on a promissory note, where the maker, after the statute of limitations had run, said it was a just debt and ought to have been paid but he became poor and could not pay it, but that he would pay one-half of it at a future period if the payee would give up the note;

Held that such acknowledgment did not take the case out of the statute of limitations.

ASSUMPSIT by indorsee against maker of a promissory note. Plea, general issue and the statute of limitations. Issues, to the court.

On the trial in the county court, the following facts appeared. The execution and indorsement of the note were conceded. In the winter of 1839, and after the statute of limitations had run upon the note, it was presented to the defendant, for payment, who then said it was a just debt, and ought to have been paid, but he became poor and could not pay it. He further said he would pay one-half of it the next winter, if Pierce, the payee, would give up the note.

Upon these facts, the county court decided that the cause of action did not accrue within six years, and rendered judgment for the defendant, to which the plaintiff excepted.

J. A. Vail and L. B. Peck, for plaintiff.

It has been settled, for a great length of time, that the

March, 1842.

statute goes upon the presumption of payment from lapse of WASHINGTON, time, and that a removal of this presumption takes the case out of the statute. Gailer v. Grinnel, 2 Aik. 349. Baxter v. Penniman, 8 Mass. 133. 9 do. 452. Bennett, J., in Evarts v. Nason's estate, 11 Vt. R. 124.

In Massachusetts, Connecticut and New York, the decisions of the courts are more liberal to the creditor than in New Hampshire and Maine, where a rigid construction is given to this statute.

The rule in Connecticut seems to be that an acknowledgement in terms that admits the debt to be unpaid, although the debtor, at the same time, says that he cannot pay anything, removes the statute bar. DeForrest v. Hunt, 8 Conn. R. 179. 3 do. 131.

The same may be said of the rule in New York, with this qualification, that if at the time of the admission it is accompanied with a protestation against paying the debt, the case is within the statute. 13 Johns. R. 510. 15 do. 3, 511. 11 do. 146. The same doctrine is recognized in Massachusetts. 13 Mass. R. 203. 1 Pick. 223. 22 Pick.

291.

In this state the construction of this statute has been more liberal for the creditor than in either of those states. In Olcott v. Scales, 3 Vt. R. 173, the court go as far, it is believed, as the plaintiff asks in this case, in order to charge the defendant and take the case out of the statute. In that case, although the defendant acknowledged the debt, in terms which admitted it to be due, at the same time he protested that the debt was a hard case, and declared that he could not pay it, nor any part of it; yet the court held that that case was not within the statute.

And in Strong v. Mc Connell, 5 Vt. R. 338, part payment of an account, when, at the time of payment, the defendant insisted that the amount then paid was all he owed the plaintiff, was held to be a removal of the statute bar.

In the last case reported in this state, Phelps v. Stewart & Wood, 12 Vt. R. 256, the court say it is settled law in this state that an unqualified acknowledgment of the 'debt as unpaid and still subsisting, is evidence from which a 'new promise to pay is to be inferred. And, in deciding 'what shall amount to such acknowledgment, we have dis

Cross

v.

Conner.