Hoit, Boston India Rubber Factory v. 92 Noyes v. Day,

494 Oakes, Shattuck v.

158, 560 Ordway v. Bacon,

REPORTS.

CHITTENDEN COUNTY.

JANUARY TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

JACOB COLLAMER,

66

ISAAC F. REDFIELD,

MILO L. BENNETT,

CHARLES ADAMS V. THOMAS CLARKE.

A guaranty that a note, payable at a future day, "is due and that the maker 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 dol'lars, 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.

2

CHITTENDEN, January, 1842.

Adams

v.

Clarke.

The breach assigned in the declaration is as follows;'Yet the said Thomas has not kept his said promise, but the 'said note was without consideration and fraudulent and 'when the same came to maturity could not be collected of 'said Hoffman, by reason of a valid defence which said Hoff'man 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 re

cover 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,