Spear v. Braintree.

other showing as to the going out of that suit, we assume that it was upon some plea or motion that asserted, for cause, this failure to comply with the letter of the statute. It was asserting a right strictissimi juris, while it seems obvious that mere delay, or an experiment with the Statute of Limitations, could have been the only object of interposing the objection. We have no doubt that, had that case proceeded to judgment on its merits, it would have been a conclusive adjudication of the subject-matter as to the liability of the town, and would have ended all right of further action on the claim. This would seem to test and determine whether the defect was one of form or substance; for the judgment rendered in that suit, is not invoked in this as precluding the right to maintain this. The defence here is the Statute of Limitations. The case seems to us to fall within the express terms of the statute, without extension of operation in view of existing equities, as was the case in Phelps v. Wood, 9 Vt. 399, and Spear v. Curtis, 40 Vt. 59.

The ground and argument that this case is excluded from the salvo of the statute, because the defect in the former writ shows that it was not" duly commenced," carry verbal criticism beyond practical tolerance. In the line and sense of that criticism, any action that should result in defeating a judgment for the plaintiff, for any of the causes, or by any of the means named in the 17th section, except the death of the party, would show that the action was not duly commenced. The cases cited by the defendant's counsel, do not come to the point on which this case hinges. In Bennington v. Densmore, 2 Gill, 348, it would seem that by the law of Maryland, if a writ is sued out before the statute has run, the statute would not prevail to bar a recovery, for the same cause of action under subsequent writs, provided they are successive continuances of each other. In that case, a writ had been sued out by an administrator before the statute had run. He was discharged, and another administrator caused a writ to be issued in his own name as administrator, for the same cause, after the statute had run. It was held that the writ issued in his name, was not in regular continuance of the writs issued in the name of the original administrator, and so did not save the cause from the

Spear v. Braintree.

operation of the statute. This bears no analogy to the case in hand. The case of Williams v. Council, 4 Jones, Law, 206, holds that in ejectment, the second suit, in order to prevail against the statute, must be upon the same title, by the same real plaintiff. Our case answers to that. The real plaintiff is the same in both suits. The only defect in the first suit, was in the form of expression. The form in which the plaintiff party was named in the first suit, as plainly and fully signified that the suit was brought by the guardian in the right of the ward, as the form in the last suit expresses the same thing. They show that the real plaintiff is the same in both cases. There is no occasion to pursue the matter further in this line.

No point is made in the argument upon the point in the exceptions, namely, "that the ground on which the former action failed, being the fault of the plaintiff, does not come within the exceptions of the Gen. Sts."; nor on any other point, save that already discussed in this opinion.

Judgment affirmed.

INDEX.

ACCORD AND SATISFACTION.

1. C. purchased the defendant's millinery goods, and in part consid-
eration thereof, agreed to pay the defendant's debt to the plaintiff. C.
thereupon wrote the plaintiff that her husband proposed to give his note
on six months for said debt, and the plaintiff replied, accepting the prop-
osition. The note was never given, but C. made remittances to the
plaintiff from time to time, to apply on said debt. Held, a mere accord,
and that the defendant was not thereby discharged from the balance of
the debt. Rising v. Cummings, 345.

2. Waiver of a promise to pay the debt of another that is without
consideration and within the Statute of Frauds, or refusal to receive such
payment, does not discharge the original debtor. Ib.

3. It is well settled in this state, that if there is a claim in dispute
between parties, whether in suit or not, and one party offers the other a
specific sum in full settlement and satisfaction of the claim, which he
receives, it operates as an accord and satisfaction, although the party re-
ceiving it protests that he only receives it in part satisfaction of his
claim. Bromley v. School District, 381.

4. Although parties mutually intend that the payment of a balance
found due on settlement shall settle everything between them, yet it
will not have that effect as to usurious interest previously paid, and
which was not in fact reckoned in the settlement, nor in dispute between
them. Rowell v. Marcy, 627.

ACTION.

1. In order to make one liable for service performed for another, he
must either thereunto expressly promise, or so conduct himself that the
party rendering the service has a right to understand, and does under-
stand, that he will be responsible therefor. Redfield et al. v. Dana et
als. 15.

2. When a statute confers a remedy unknown at common law, and
prescribes the mode of enforcing it, that mode alone can be resorted to.
Thayer v. Partridge & Tr. 423.

3. Husband and wife may sue jointly at law, for the conversion of the
wife's property by the husband's creditors. White & wife v. Waite, 502.

4. In assumpsit on a policy of life insurance in favor of the adminis-
trator of the insured, the declaration alleged a consideration moving
from the insured, and a promise to pay the wife and children of the insured,
or their legal representatives. Held, that the action could not be main-
tained in the name of the administrator. Davenport, admr. v. Mutual
Life Association, 528.

5. Threats of bodily hurt that occasion such interruption or incon-
venience as to produce pecuniary damage, are actionable. A mere vain
fear is not sufficient; it must be founded upon an adequate threat.
Grimes v. Gates & wife, 594.

See ASSUMPSIT, 2; JUSTICE OF THE PEACE.

ADVANCEMENT.

See PROBATE COURT, 7.

ADVERSE POSSESSION.

1. The intestate and A. verbally made an exchange of lands, whereby
A. was to have the demanded premises if he paid the difference in value
between them and the land for which they were exchanged. A. went
into possession of said premises under said contract, and occupied them
for more than fifteen years, claiming no title thereto except by virtue of
said contract, and had them set to him in the list, and paid the taxes
thereon. A. never paid said difference, and no deeds of the lands were
ever executed, and finally A. surrendered said premises to the intestate,
and retook possession of the land he let him have. Held, that A.
acquired no title to said premises by possession, and that after such sur-
render, he had no interest therein which could be taken on a debt exist-
ing before the surrender. Adams, admr. v. Fullam, 558.

2. Actual possession by prior occupants claiming title, although hav-
ing no color of title, will avail a subsequent occupant under color of title,
claiming under such prior occupants, in making out a possessory title in
himself. Day v. Wilder, 583.

AMENDMENT.

1. After verdict and before judgment, the plaintiffs were permitted
to amend their declaration by striking out an allegation of expense and

loss of service of the wife to the husband.
solely for damage to the wife. Held, no error.

The trial had proceeded
Bates & wife v. Cilley, 1.

2. The defendant was sued by the name of "The Haverhill Bridge
Company." Its corporate name was, "The Proprietors of Haverhill
Bridge." The court allowed plaintiffs to amend the writ and declara-
tion by inserting defendant's corporate name. Held, that the court had
power to allow the amendment. Stanton & wife v. Proprietors of Haver-
hill Bridge, 172.

3. The New York Central Railroad Company and The Hudson River
Railroad Company, separate corporations, consolidated pursuant to an
act of the New-York legislature, under the name of The New York
Central and Hudson River Railroad Company. The new corporation
was sued as a common carrier, by the name of The New York Central
Railroad Company, for damage to property received at a station on the
line of what was formerly The New York Central Railroad, and appeared
in court and claimed a misnomer. Held, that the plaintiff was properly
allowed on trial, to amend the writ by inserting the true name of the
new corporation. Hosford v. N. Y. Central & Hudson River R. R. Co. 533.

APPEAL.

No. 37 of the Acts of 1866, relating to appeals from judgments of jus-
tices of the peace, does not abridge the right of the appellee, secured by
§ 64, ch. 31, of the Gen. Sts., to enter the appeal for affirmance. Ide v.
Story, 62.

ARBITRATION.

1. A submission to abide the decision of arbitrators named, "in
regard to a lease of the farm known as the Frank farm, leased to the
said Soper for the term of five years, for which they now agree to dis-
solve, and abide by their decision," and an award in pursuance thereof,
"that we have examined the accounts on both sides, and
appraised all damages and differences between them, according to our
best judgment, and find a balance due Mr. Soper, $204.25," are not so
uncertain as to make the award void. Soper v. Frank, 368.

2. Said award gave the plaintiff a certain sum to surrender said lease
and premises at the end of the first year of the term, but did not fix the
time of payment thereof; and it was held payable when the surrender
was to be made. Ib.

3. The plaintiff called on the defendant to pay the award before the
end of the year, but the defendant refused, unless he would take notes,