Tucker v. Wells

The opinion of the court was delivered by Bennett, J. — The question, in this case, arises upon the sufficiency of the plaintiff’s replication to the defendant’s plea in bar. The statute of limitation does not run on a demand where the debtor has “ known property within this state, which can, by the common and ordinary process of law, be attached,” though such debtor shall reside without this state. The plaintiff has replied, that the defendant had no property, known to him, which could, by the common and ordinary process of law, be attached. Had issue been taken on this replication, if would have been incumbent on the dedefendant to have proved that the plaintiff, in fact, had a knowledge of the existence of the property. It would not have been sufficient to have shown that the defendant had property, which, by the use of ordinary diligence, might have [244] been known to the plaintiff. We think the statute can have but one construction. if the existence of the defendant’s property is so notorious, that, upon the use of reasonable diligence, it may be known to the plaintiff, so as to be attached by the common and ordinary process of law, the demand is not saved from the effects of the statute of limitation, though the debt- or reside without the state. The plaintiff, in his replication, has attempted to narrow down the operation of the statute, which neither its language nor spirit will warrant. The demurrer is, therefore, well taken, and the judgment of the county court is affirmed. After judgment was pronounced, in this case, the court-, on motion, pro forma, reversed the judgment of the county court, to enable the plaintiff to procure an amendment of his replication.