Phelps & Bell v. Nathan Wood, 9 Vt. 399

The opinion of the court was delivered by Redfield, J. The first objection to the report is virtually disposed of, by the case of Catlin v. Aiken, 5 Vt. Rep. 179. A mere mistake in charge, whether it be corrected by a credit or erasure, or stand uncorrécted, is not to affect the jurisdiction of the court. It would be almost too gross an absurdity to merit refutation. When the statute speaks of the “ debit side of plaintiff’s book,” as a limit of the jurisdiction of justices of the peace, in actions of book account, it is intended to express the “ plaintiff’s book,” as understanding^ made up by him.

Not that the question of jurisdiction is to be made to depend ultimately upon the plaintiffs right to charge, but upon what he did, in fact, charge, as a serious claim, in the shape of book debt. It is not necessary to decide here, what would be the effect of plaintiff’s erasing from his account items of charge, when he abandoned all claim to recover them, if they had been originally and intentionally charged to defendant.

It is difficult to perceive how that could injure defendant ; — but, surely, a mere mistake, either in charging or posting, should no more affect the question of jurisdiction, than a mistake in footing up the account. The charge of interest, too, it is equally well settled, does not affect the jurisdiction. Stone v. Winslow, 7 Vt. Rep. 338. It would be monstrous injustice to hold, that the accruing interest, during the delay occasioned perhaps by defendant’s appeal, should oust the jurisdiction of the court, which alón ehad jurisdiction of the case, when the suit was instituted.

But it is evident no charge of interest, unless perhaps interest accruing by express contract, which is not often the case in this action, could so affect the book, that the plaintiff might not be permitted to waive the claim. It is an accident of the claim, and not of the substance of the charges, and, like a claim for exemplary damages in trespass, may always be waived.

Whether the defendant employed the plaintiffs to perform the services charged, or they performed them unasked, or for some other person, is a question of fact, resting exclusively with the auditors, and which they have determinedj in this case, in favor 0f plaintiffs. And although the testimony might have been doubtful, yet, there being some testimony for them to weigh, we cannot now inquire, whether, upon the whole, they decided as we should have done. The statute of limitations presents a question of more difficulty.

The first suit was commenced in time, and it was discontinued, but without the jault of plaintiffs. If we hold the debt barred, it was barred without the laches of the plaintiffs; and when no diligence on their

part could have prevented it. If the plaintiffs had discontinued their own suit, or voluntarily become non-suit therein, it is evident they could not rely upon that suit to prevent the operation of the statute of limitations. And the statute, in terms, does not extend to the case of a former suit, discontinued without the fault of the plaintiffs.

The statute provides, that when any such suit shall failj by reversal on writ of error, motion in arrest of judgment, plea in abatement, or on demurrer, “ and the merits of the cause shall not be tried," the plaintiff may, from time to time, commence another suit within one year after such judgment reversed, &c. It is evi. dent this exception, or proviso of the statute, was intended to reach all those cases, where a suit was brought, and the merits of the action failed to be tried, without the fault of the plaintiff, and the period of limitations had become complete during the pendency of the suit.

So that the present suit is clearly within the equity of the proviso, although not strictly within its terms. It may be said, too, that, should a suit be abated, without a plea, but on motion, as may sometimes be done, the case would not come within the exception. The'same is true, where the plaintiff is compelled, by some error in pleading, variance, or otherwise, to become non-suit, without his own fault. And no doubt these and many other cases, not coming technically within the terms of the proviso, would still be held to come within its equity.

Such, indeed, has been the construction of the statute oflimitions, that many cases, not within the equity of the statute, but within its terms, have been excluded from its operation. Any fact, which goes conclusively to rebut the presumption of payment, from the lapse of time, is permitted to obviate the effect of the statute. A new promise, even in the case of debt on judgment, is held to have this effect. Gailer v. Grinnel, 2 Aik. Rep. 349.

What has been said, in some of the cases, of a new promisé, giving a new cause of action, founded on the consideration of the moral obligation to pay the pre-existing debt, has very little application to the action of debt, and is rather specious, than substantial, as applied to the action of sumpsit. The true reason, why a new promise takes any case out of the statute of limitations, is, that it conclusively rebuts the presumption of payment, and shows the case not within the equity of the statute. In Ferris v. Barlow, 8 Vt.

Rep. 90, it was held, that the time, during which a debtor remained in jail, would not be reckoned in computing the eight years from the rendition of the judgment, in order to fix the time of such judgment being barred, and that, after his release from jail, the statute wouldbegin to run, as from the rendition of the judgment. In Hall v. Hall, 8 Vt. Rep. 156, it was held, that the statute of limitations will not operate upon a judgment apparently satisfied by levy upon lands, acquiesced in by both parties, although defective and afterwards so adjudged. In the case of Baxter v. Tucker, 1 D. Chip.

Rep. 353, it was decided, that the statute of limitations did not run against a scire facias, brought to revive a judgment, when the execution had been levied upon property not the debtor’s. These cases are all decided upon the principle of regarding the spirit and intent of the statute, rather than the strict

interpretation of its terms. We are inclined to adopt the same doctrine here, because we think it just and well warranted, by decided cases in reference to this subject. As a general rule, I should be averse to adopting such a rule of construction, in regard to other statutes, as being unsafe and unsatisfactory. But statutes of limitations regard the remedy, and, being founded upon an arbitrary ground of presumption, require to be liberally expounded to prevent injustice.

To such an extent have the courts, in some instances, carried this doctrine of the equitable construction of the statutes of limitations, as to infringe their just operation. But, in deciding the present case, within the proviso of that statute, saving causes when the merits have not been tried, we do not intend to countenance such latithdinarian construction, as has sometimes been attempted. It is evident this proviso has reference, in its phraseology, to the county and supreme courts, and would not be likely specially to enumerate cases, which could not there occur.

A case there could never be discontinued on account of the absence of the court, for the sheriff in such case, is to adjourn the court. But in causes before justices of the peace, there is no provision for the cause being continued in the absence of the justice, ex- “ on the day set for trial,” which has been decided not to apply to causes once continued. State v. Bates, 3 Vt. Rep. 320. This, then, undoubtedly is a casus omissus, and, as such, ought to be considered within the equity of the proviso.

The same jnay be said of the provision of the statute for surrendering the principal in court, in discharge of the bail, pending the original action. The provisions are applicable, more particularly, to the higher courts, but must be applied, mutalis mutandis, to justices’ courts. Judgment affirmed.