
    J. K. BATCHELDER v. JOHN F. BARBER.
    October Term, 1894.
    
      Statute of limitations. Absence from the state. Known attachable froferty.
    
    To avoid the statute of limitations upon the ground that the defendant, while residing without the state, had no known attachable property within the state, the plaintiff must affirmatively show that fact.
    Assumpsit. Plea, the general issue, with notice of statute of limitations. Heard upon the report of a referee at the June term, 1894, Bennington county, Taft, J., presiding. Judgment fro forma for the plaintiff. The defendant excepts.
    
      
      Stewart & Wilds for the defendant.
    The burden is upon the plaintiff to show that the defendant had no attachable property in Vermont while absent from the state. Stevens v. Fisher, 30 Vt. 200.
    
      ■O. M. Barber for the plaintiff.
   TAFT, J.

Two questions were argued in this cause by the counsel for the defendant, but it is unnecessary to consider them, for the plaintiff concedes that he cannot recover the amount of the draft in question, for that it does not appear that the defendant while residing without the state did not have known property within the state that could have been attached by the common process of law. To entitle him to recover, it was necessary he should establish that fact. Stevens v. Fisher, 30 Vt. 200.

Judgment reversed, and judgment for the plaintiff ■for the smaller sum named in the report.  