Town v. Washburn

By the Ootort.- WilsoN, Ch. J. We arc of the opinion that the order appealed from should be affirmed. Denny vs. Smith, 18 N. Y, 567, decided under a statute substantially the same as ours, is in point, and we are satisfied with the reasoning and conclusion of the Judge who delivered the opinion of the majority of the Court in that case. See also Dolbear vs. Davidson, 2 Barb. Ch. 477-487; Fannin vs. [271] Anderson, 7 Ad. & El. N. Y., 811. Our statute is in these words: Sec. 3, Ch. 66, Gen. Stat. “ Actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, except where in special casos a different limitation is prescribed by statute. ” See. 15. “If when the cause of action accrues against a person, he is out of the State, the action may be commenced within the times herein limited after his return to the State; and if, after the cause of-action accrues, lie departs from and resides out of the State, the time of his absence is not part oí the time limited for the commencement of the action. ” We must give to the words of the statute their natural and obvious meaning, and this constitutes the law as a shield to the defendant Morrison against this action, behaving been within the jurisdiction of the Court for more than six years before suit brought, and after the cause of action accrued, but not to the other defendants, who have not been six years within the jurisdiction of the Court. To use the language of the Court of Appeals of Now York, in the case above cited, “it appears to have been the manifest intention of the legislature, to subject any 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. ” The argument that Morrison may be compelled to contribute, and therefore be practically deprived of the benefit of the statute, would be more properly addressed to the legislature than the Court; it might tend to prove a casus omissus, which cannot be remedied by us. It is even held, that cases within the reason, but not within the words of the statute, are not barred, but may be considered as omitted cases, which the legislature have not deemed proper to limit. Bedell vs. Janny, 4 Gilm. (Ill.), 208, and eases cited. [272] But it is urged that the plaintiff must recover against all the defendants that were members of the firm of D. Morrison & Co. or none ; and in support of this position are cited, Fits vs. Chamberlain, 7 Minn., 217, and Reese vs. Heylin, 11 Minn., 138. ■ Speaking for myself, I may say, that these cases have gone full far enough in the direction indicated, but they have not gone nearly to the length which the defendants ask us here to go. They only held that in an action against two or more on a joint contract or debt, a plaintiff cannot recover against one of the defendants, on his individual contract or indebtedness. In the last case, the statute having run, JEEeylin could not, after the partnership had been dissolved, revive the debt against his former co-partner, or the former firm, but the old debt was a sufficient consideration to support the promise ; but it was his individual promise and contract, and not that of Beese and Heylin. A recovery, therefore, could not be liad on the partnership contract, or indebtedness, which was barred by the statute, but only on his individual' Contract, subsequently made. The case at bar is entirely different. Suit is brought and judgment asked on the original joint contract made by the firm of D. Morrison & Co. The cases cited, therefore, we think are not authorities for the defendants. Order affirmed.