Cook v. Kibbee

16 Vt. 434

Opinion

The opinion of the court was delivered by

Bennett, J.

In this case the note was payable six months after date, and the defendant pleads that he did not assume and promise within six years, &c. When the statute begins to run from the time of making the promise, the form of pleading the statute adopted in this case is well enough ; but, in cases in which the cause of action accrues after making the promise, the plea must be actio non accrevit. 1 Saund. 33, n. 2. Ib. 283, n. 2. 2 Saund. 63 c, n. 6.

If the plea had been good, the replication would have been sufficient. The statute does not run, if the defendant is out of the state when the action accrues, and has no property within the state which could be attached by the common and ordinary process of law; and hence six years must be allowed for bringing the action, after the defendant comes within the state.

Judgment affirmed.