Russ v. Fay

The opinion of the court was delivered by Isham, J. On the issue arising under the plea of the statute of limitations in this case, the question arises whether the note mentioned in the declaration is saved from the operation of that statute by the residence of the defendant in another state, and by his not having in this state known property, which by the common and ordinary process of law could be attached. It appears from the case that the defendant was a resident in Dalton, in the state of New Hampshire, at the time the note was executed, and that he continued to reside there until a short time previous to the commencement of this suit. In such case the statute provides that the time of his absence in that state is not to be reckoned as any part of the time limited for the commencement of the action, unless he has known property in this state liable to be attached. The fact stated in the exceptions that the defendant had frequently been in this state since the note fell due, and up to the time when the suit was brought, does not subject the note to the operation of the statute. In the case of Hall v. Nesmith, decided in Washington county during the present circuit, it was held that the defendant must have come to remain or reside in this state in order that the time shall be reckoned for the limitation of the action. The statute of limitations, therefore, has not run upon this note, unless it appears that the defendant has had known property within this [385] state for the period of six years, which could by the common and ordinary process of law be attached. The jury, under the charge of the court, have found that the defendant did have known property in this state at different times, in all for the period of six years, between the time the note fell due and the commencement of this action; and the court, in their charge to the jury, instructed them that under these circumstances the note was barred by the statute. It is insisted that the charge in that particular was erroneous, and that the statute requires, in case the defendant does not reside in this state, ho should have known property during, that period which could be attached, for the full time of six years, continuously and without interruption. The construction of the act, in this particular, has now for the first time been presented for decision in this state. The case of Wheeler v. Brown, 20 Vt. 116, to which we were referred, has no bearing on this subject. The only question in that case was, whether the defendant had known property in the state, not whether it should have been held continuously. In the case of Royce v. Hurd, 24 Vt. 620, the subject was incidentally referred to, but a decision of the question expressly avoided. The statute of New Hampshire on this subject is similar in its provisions to our own. In the case of Sessions v. Bicknell, 6 N. H. 555, the debtor, a resident of Maine, had property in New Hampshire for less than a year; and in Dorr v. Sayward, 12 N. H. 271, the question was as to the notoriety of ownership of property, and not as to the time or necessity of a continuous ownership. The necessity of a continuous ownership of property in that state for six years was not involved in either of these cases. The language of the court in that case that “ unless there had been property of the defendant within the state during the full term of six years” the statute would be no bar, we apprehend was not intended to convey the idea that a continuous and uninterrupted ownership was necessary. It was sufficient in these cases to say that if the debtor had known property in that state for less than six years, the claim was not barred by the statute ; and that is all which, we understand, was decided by the court. But whatever may be the construction given to the statute in that state, we feel no disposition to depart from the construction of [386] the act which it has practically received in this state, and which, we think, is dictated alike by its general object and by public policy. The principle upon which that saving in the act is founded is, that no presumption can arise against a party for not suing in another state or country, nor until by reasonable diligence and inquiry, service of process can be made in this state on the person of the debtor, or at least upon so much of his property as will yield a substantial benefit to the plaintiff. We can entertain no doubts that if the defendant had come to reside in this state, and had actually resided here for the period of six years in all, though it was by occasional interruptions, that the statute would bar the claim; Hackett v. Kendall, 23 Vt. 276. Neither can we entertain any doubt that it was the intention of the legislature to place the ownership of property in this state on the same ground. If the debtor comes to reside in this state, or has known property within it, the statute commences running, and at the expiration of six years it constitutes a perfect bar. If, during any portion of that time, the defendant removes or resides out of the state, and has not known property within it, that time, and only that time, is to be deducted; and if, in all, six years have expired in which service of process could have been made in this state, either upon the body or known property of the debtor, the statute constitutes a bar to the action. Under this construction the mischief intended to be remedied by the act is avoided. The creditor, by the exercise of reasonable diligence, is enabled to enforce the collection and payment of his claim within the jurisdiction of the courts of this state, and the debtor can have the benefit of all legal presumptions which arise from the neglect of the party to enforce his claim, which it was the policy of the act to provide. The objection that the property owned by the defendant in this state was partnership property, and therefore is not such known property as will subject the individual debt of this defendant to the operation of the statute of limitations, we think, is not well taken. The rule seems to be well settled that the property of the defendant in this state must not only be known, so that by reasonable diligence it can be found and attached, and be of an amount sufficient to yield a substantial benefit to the plaintiff, but it must [387] also be property unembarrassed, and liable to be levied upon for the satisfaction of the debt; Royce v. Hurd, 24 Vt. 626; Dorr v. Sayward, 14 N. H. 9; Wheeler v. Brown, 29 Vt. 113. In Bardwell v. Perry, 19 Vt. 292, it was held that, at law, both separate and joint creditors of a partnership may attach either separate or joint property, and sell it upon execution in satisfaction of their judgments, without regard to the equities of the debtors. But inequity, the creditors of an insolvent partnership are entitled to have the partnership effects applied in satisfaction of their debts in preference to the creditors of individual partners. This, however, is a mere right in equity, and exists only in- cases of an insolvent partnership ; Washburn v. Bank of B. Falls, 19 Vt. 278; Shedd v. Wilson, 27 Vt. 480. At law such property is unembarrassed, and liable to be levied upon for the satisfaction of the plaintiff’s debt. It would be the attachment of a legal right, not of an equitable interest; Dorr v. Sayward, 12 N. H. 275; ibid 14 N. H. 9. In this ease the jury, under charge of the court, have found that the property was not embarrassed, even with that equitable claim. So that, if that fact should be regarded as material in the case, the objection is removed. We have no occasion to say that it would be material, even if the firm had been formed and were doing business in this state; much less, in a case where the firm exists and is doing business in another state. It appearing in this case, therefore, that the defendant had known property in this state for the period of six years after the cause of action accrued, and before this action was commenced, we think the note is barred by the statute. This renders it unnecessary to decide the questions which were raised under the plea of a discharge in bankruptcy. Judgment affirmed.