Denny v. . Smith

Allen, J. It stands admitted by the pleadings in this action, that while the defendant Hull was always a resident of the State, the defendant Smith, after the making of the joint note, departed from and resided out of the State for so long a period that his liability still survives. The court on the trial denied the motion for nonsuit, on the ground that it was no defence for the defendant Smith, in answer to an allegation that he had resided out of the State so long that his liability on the note was not barred by the statute of limitations, to allege and prove that his .co-defendant had remained within the State. By the provisions of the Revised Statutes, which are to govern this case (2 R. S., 297, § 27), an exception is made in relation to the case of absent or non-resident debtors, as follows: “If at the time when any cause of action, specified in this article, shall accrue against amj person, he shall be out of the State.” And if, “ after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” It is insisted that the word “person,” *569 as here used, shall be deemed to include “ persons,” so that the statute should read, “person or persons” (2 R. 8., 778. § 11), and that, therefore, in the case of joint debtors, both must reside out of the State the length of time required to avoid the statute. It is true that, in the case of Brown v. Delafield (1 Denio, 445),- the Supreme Court so held, ayd upon the ground that, as one of the defendants continued to reside within the State, both might have been sued at any time under the act relating to proceedings against joint debtors, and the plaintiff would thus have had judgment against both. That, on the return of the absent defendant, an action of debt might have been brought against him and his co-defendant, on the judgment; and if he should plead the statute, a replication would be good, that he had been out of the State. The learned judge who delivered the opinion of the court in that case cites Mervin v. Kumbell (23 Wend., 295) in support of the position. But, so far as I understand that case, it goes no further than to decide that the judgment above, as against the defendant not served with process, only proved that the plaintiff was entitled to an execution against the partnership or joint property of both defendants, and might affect the extent of the recovery in a second action; and as to any further or different liability, that the judgment proves nothing whatever. This case has undergone review in Bruen v. Bokee (4 Denio, 56), and in Oalcley v. Aspinwall (4 Const., 514), where the majority of the judges almost came to the conclusion that no action can be maintained on such a judgment against the absent debtor. At all events, the judges who delivered opinions all remark, emphatically, that the record is in such case no evidence in an action against a party who was not served with process, and who did not appear in the suit, “of anything tending to render him responsible under such judgment, or m any way to affect him by it.” A defendant, under such circumstances, may interpose any defence which he might offer, were the action brought on the contract instead of the judg *570 ment. This would, of course, include the statute of limitations. (Carmon v. Townsend, 6 Wend., 206; 23 Wend., 293; 4 Denio, 56; Vandenburgh v. Moore, 3 How. Pr. R., 316; 4 Comst., 514.) If the statute is not suspended as to either of two joint debtors, while one of them continues to reside within the State, then a replication to an answer of the statute, by the non-resident debtor, of such non-residence, would be bad j but the courts have decided the law to be otherwise, and that one joint debtor cannot, even by a promise, revive or keep a debt alive as to his co-debtor. (1 Kern., 176.) I think it was the manifest intention of the legislature to subject every debtor, during a period of six years after the accruing of a debt, to the reach of civil process, at the suit of his debtor. Such has been the recent decision of the Court of Queen’s Bench in England, in the case of Fannin v Anderson, 7 Q. B., 811 (53 Eng. Com. Law R., 821), and such was the construction arrived at by the chancellor, in the case of Didier v. Davison (2 Barb. Ch, 477, 487), where the point was directly before him, and where he decided that the return of one of two joint debtors into the State, after the right of action had accrued against both, did not bar the right of action against the survivor who does not come within the State until within six years of the time when the suit was brought against him. He well remarked that to have brought a suit in that case against the debtor first coming into the State, who had no property, either of his own or of the firm, would have been perfectly useless, and he cited with approbation the case of Fannin v. Anderson, then recently decided, as containing the true and reasonable construction to be given to our statute. The resident debtor, as remarked, might be insolvent, and the plaintiff obtain nothing, or he might be residing in the State without the knowledge of the creditor, or he might be discharged by proceedings in insolvency or bankruptcy, as *571 in the present case, and the plaintiff be unable to obtain a judgment against him. I think the judgment should be reversed, and judgment rendered for plaintiff, for the amount of the note, with costs.