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Dorset, Manchester v.
K Drew, Ainsworth v.
563 Durkee v. Marshall,
559 Kelly v. Hart, Dyke, Gove v.
561 Keyes, Lowry v.
King et al., Grant v.
Kirby v. Waterford,
Lowry v. Keyes,
224 French v. Steele,
Manwell, adm’r, v. Estate of Manwell, 14
Marsh et al., Stearns et al. v. 303
303 Gibbs, Slack, q. t., v. 357 Marshall, Durkee v.
559 Gilman v. Moore,
457 Mayo, Follett & Co., Pecks et al. v. 33 Grant v. King et al., 367 McGrady v. Miller et al.,
128 Grant, Danforth v. 283 McGregor v. Balch et al.,
428 Gove v. Dyke, 561 McGregor v. Walden,
450 Merriam, adm’r, v. Barton et al., 501 H
Merrill et al., Trearurer of Vt. v. 64, 557
128 Miller's adm’r v. Truman,
138 Hall et al., Probate Court v.
371 Harmon et al. trustees, Park et al. v. 21. Minkler et al. v. Estate of Minkler, 125,558 Harrington v. Alburgh,
457 Hart, Kelly v. 50
Moore, West v.
N Haven et al., Stearns y.
540 Hicks, adm’r, v. Sayles et al., 221
228 Higbee v. Suttons, 555 Norton, Sandford v.
239 Hines et al. v. Soule, 99 Norton v. Volentine,
178 Hinsdale v. Partridge, 547 Norton et al., Cannon et al. v.
384 Hoit, Boston India Rubber Factory v. 92 Noyes v. Day, Holden et al. v. Pike,
535 Hooper, Scott v.
O Hopkins v. Willard et al. 474
556 494 Oakes, Shattuck v. Hopkinson v. Sears, Howard, Adams et al. v. 158, 560 Ordway v. Bacon,
378 Hubbard, Sanderson v.
462 Hunt v. School Dis. No. 20, Norwich, 300
P Hurd v. Darling et al.,
214 Hurlburt v. Hurlburt, 561 Paddock et al. v. Ames,
515 Hydes, Hatch v. 25 Paddock et al., Jameson v.
547 Peach v. Mills,
371 Jameson v. Paddock et al., 491 Pecks et al. v. Mayo et al.,
33 Jewell, Brooks & Co. v. 470 Pennock, Judevine v.
438 Johnson v. Rice, 391 Perry, Bridges v.
262 Judd v. Blake et al. 410 Pike, Holden et al. v.
405 Judevine v. Pennock, 438 Probate Court v. Hall et al.,
} 311 Tilden v. Brown,
Stone v. Cong. Soc. of E. Berkshire, 86
55 Ralph, Spear v. 400 Strongs, Willard, adm'r, v.
532 Reading, Emerson & Wife v. 279 Suttons, Higbee v.
555 Rice, Johnson v. 391 Sweat et al., Callender v.
160 Richmond v. Standclift et al.,
258 "Roberts v. Button et al.,
195 Rockwood v. Collamer et al.,
T Rosseau et al. v. Cull et al.,
83 Royalton, Blodget v. 288 Temple v. Bradley,
254 Royalton v. Royalton & Woodstock Thayer v. Wheelock et al.,
107 Turkpike Company,
164 Russell v. Buck, 147 Tilden et al., Austin-v.
325 Treasurer of Vt. v. Merrill et al., 64, 557 Truman, Miller's adm'r v.
V Sanderson v. Hubbard,
462 Sandford v. Norton, 228 Volentine, Norton v.
239 Sargeant, Walker v.
247 Sayles et al., Hicks, adm'r, v. 221 School Dist. No. 20, Norwich, Hunt v. 300
W Scott, Chase y.
77 Scott & Trustee, Camp v.
387 Wadsworth v. Clark & Trustee, 139 Scott et al., Woods v. 518 Walden, McGregor v.
450 Scott v. Hooper, 535 Walker v. Sargeant,
247 Sears, Hopkinson v.
494 Warner, Crane v. Shattuck v. Oakes, 556 Watson, Smith v.
332 Slack, q. t., v. Gibbs, 357 Waterford, Kirby v.
414 Slason v. Wright, et al., 208 Wead v. Marsh,
80 Smith v. Smith, 440 West v. Moore,
447 Smith v. Watson, 332 Wheelock et al., Thayer v.
107 Soule, Hines et al. v. 99 Whitehead et al., Wright v.
268 Spear v. Ralph, 400 Wightman v. Carlisle,
296 Standclift et al., Richmond v. 258 Willard et al., Hopkins v.
474 State v. Windsor Bank, 562 Willard, adm'r, v. Strongs,
532 State v. Brady, 353 Windsor Bank, State v.
562 Stearns et al. v. Marsh et al., 303 Witt v. Marsh et al.
303 Stearns v. Haven et al., 540 Woods v. Scott et al.,
518 Steele, French v. 479 Wright et al., Slason v.
208 Stevens v. Briggs, 44/Wright v. Whitehead et al.,
CHITTENDEN COUNTY. .
JANUARY TERM, 1842.
PRESENT, Hon. CHARLES K. WILLIAMS, Chief Justice.
CHARLES ADAMS v, THOMAS CLARKE.
A guaranty that a note, payable at a future day, “is due and that the ma
ker has nothing to file against it," is to be considered as referring to the
time when the note arrives at maturity. The statute of limitations does not commence running on such guaranty
until the note becomes due.
ASSUMPSIT, on a warranty contained in the following contract, - New York July 30, 1828. Three years after date
I promise to pay Thomas Clarke or order two hundred dollars, value received, with interest from date at six per cent.
SAMUEL HOFFMAN. I have this day sold the note of which the above is a co'py to, Charles Adams, to be collected for his own use and
benefit, and at his own expense, and I warrant that said Hoffman has nothing to file in against it. Burlington, Janu'ary 14, 1829.
THOMAS CLARKE.' VOL. IV. W. R. IV.
CAITTENDEN, The breach assigned in the declaration is as follows ;January, 1842. "Yet the said Thomas has not kept his said promise, but the
said note was without consideration and fraudulent and Adams
when the same came to maturity could not be collected of Clarke.
said Hoffman, by reason of a valid defence which said Hoffman had against said note, of all which said Thomas had notice.'
The defendant pleaded that the cause of action did not accrue within six years next before the commencement of this suit.
Issue was joined to the court.
The action was commenced on the sixth day of July, 1836. On the trial in the county court, the plaintiff read in evidence the contract declared upon, and, on this evidence, the county court decided that the cause of action did not accrue at any time within six years next before the commencement of this suit and rendered judgment for the defendant to recover his costs.
The plaintiff excepted to the decision of the county court.
Plaintiff pro se.
The plea of the statute of limitations cannot prevail, unless a right of action necessarily accrued on the sale and transfer of the note.
It is evident that the contract in question is not to be construed literally. The word, due, in this warranty, does not mean that the sum specified was then demandable, for that would be in opposition to the language of the note, it having almost three years to run.
Neither can there be any thing to file in against a demand not then due. A counter claim is not a set off and only becomes so on being pleaded to a suit brought.
The parties were not looking to a state of things as then existing, but to the time set for the payment as the limit of the contract. The plain meaning is that the amount of the note should be recoverable at maturity, and that no set off should be effectually pleaded.
The existence of a counter claim by the maker against the payee, at the time of the indorsement, would not create a right of action immediately against the indorser. The claim might be extinguished by the payee before the note fell due,