2 Barb. Ch. 477 | New York Court of Chancery | 1847
The first question for consideration in this case, is whether it is within the exception in the statute relative to actions which concern the trade of merchandize between merchant and merchant, their factors or servants. (1 R. L. of 1813, 186, § 5.) The recent decisions in England, and which appear to contain the most reasonable construction of this much contested exception, in the statutory provision, which was substantially the same in both countries, have placed it ■upon a ground which is capable of a rational application. In the case of Inglis and another v. Haigh, (8 Mees. & Wels. Rep. 769,) which came before the court of exchequer in 1841, it was held that the exception in the statute did not apply to an action of indebitatus assumpsit; but only to actions of account between merchant and merchant, their factors or ser
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The right of action in this case accrued previous to the first of January, 1830, and must be governed by the provisions, of the act of April, 1801, for the limitations of actions. (1 R. L. of 1813, p. 184;) and not by the new provisions, of the revised
The next objection to the defendant’s plea is that it is double. The form of this plea is, “ that the cause of action dr suit did not accrue or arise within six years previous to the filing of the bill.” And the averments in relation to the residences of the defendant and of Hill, in this state, are merely inserted therein to meet the suggestions, in the bill, which were intended to bring the case within the exceptions of the statute. And if some of those averments are not mere surplusage, they all tend to establish the single point of the plea, that the right of suit accrued more than" six years previous to the filing of the complainant’s bill; and that the suggestions of the bill which were intended to bring the case within the exception of the statute of limitations are not true. I shall therefore proceed to consider the more important question, to the parties in this cause, whethei either of thé averments in the plea relative to the residences of Hill and of Davison, in this state, brings the cáse within the exception contained in the last clause of the fifth section of the act of April, 1801.
That section provides, that “ if any person against whom any cause of any such action shall accrue, shall be out of this state at the time the same shall accrue, the person who shall be entitled to such action shall be at liberty to bring the same within the times respectively above limited, after the return of the person so absent into this state.” Under this provision of the statute it has been held that if the person against whom the right of action accrued had never been in the state, before suóh right of action
It has been repeatedly settled, under this statutory provision, that if the debtor is in this state at the time the action accrues against him, or comes here subsequently, so that the statute once begins to run against the demand, it continues to run notwithstanding he departs from the state within the six years; and that no subsequent disability stops it. Even the death of either of the parties, after'the statute has once commenced running, will not prevent the limitation from attaching; except in cases which are provided for by some other statutory provision
Upon the argument of this appeal! entertained a very strong and decided opinion that the return of Hill to this state, in 1820, would not have the effect to bar the right of action here against the defendant Davison. It is true, under the statute' of James, in reference to disabilities of the parlies who are to bring the suit by reason of non-residence, which provision was not incorporated into the statute of this state, it has been held, in England, that the exception in favor of non-resident plaintiffs did not apply where some of them were not beyond seas. For the absence of the other was no excuse for the failure to bring the suit, by those who were within the realm, they being competent to institute the suit for themselves and the absentee, who together were joint owners of the debt for which an action was to be brought. (Parry v. Jackson, 4 T. R. 515.) But in the case under consideration it would have been perfectly useless to" institute a suit against Hill, who had no property, either of his own or of the firm of which he was formerly a member. And the reasons upon which the exception in our own statute is founded do not apply to such a case. I am therefore pleased to find that a recent decision of the court of queen’s bench in England, made since the argument of this 'cause, confirms the strong impression which I then entertained as to the law on this point. In Fannin v. Anderson, (9 Lond. Jur. Rep. 969,) this question came before that court for decision, under a s-imilar provision in the statute of Anne. And after a full argument, and taking time for consideration, the court decided that where one of the joint debtors was out of the realm when the
The residence Of Hill in this state from -1820, and the nég lec't to institute a suit- against him, not being Sufficient to take the' casé' out of the exception in the statute, as- to the defendant* Davison, it remains to be considered Whether the* residence of the* latter iti this State, in 1834 and 1835, and the ñégléoí to institute a Suit for mole' than six years after he cáñie béré to reside, is a bar to* the present suit. If this casé depended upon the provisions of the' revised statutes alone, it is evident that* the suit Would not lie' barred. As hé Mt the state before the expiration of thé' six years,* and only returned again a few day's previous to the service of the process upon him in this suit, thé 27th séctioli- of the title Of the revised statutes' relative to thé time* of commencing- actions, (2 R. S. 297,) would prevent a* residence' here for less than six years from operating as a bar.* For) by the provisions of that section, the* time the debtor has-resided out of the state after the cause of action accrued) is* not to be taken into' the account in the computation- of the time* within Which a suit must be brought against* him.* But none* of the provisions of the first four articles,, of the title of the revised statutes before referred* to, apply to* c-aSes where the'* right of action* accrued previous to the first Of January, 1830 although the person against whom the suit Was to• be instituted was- not a* resident of the state, so as to be* háble to Be sued here, until after the revised statutes went into- operation. Ob thé contrary, the limitation of the right- to- institute* a- suit against him) after hecame-intothis state, depended entirely upon* the laws- which were in force previous to 1830/ (2 R. S. 300, § 45.) The statute of limitations, therefore,, commenced running immediately after the defendant Dávisóñ Came here fo reside,, m March, 1834; and it continued to run, notwithstanding, his subsequent absence from the state.* For there is nothing to
The dé'eretal order appealed from tim'st- therefore be affirmed, with costs;
See a brief sketch of the life of Chancellor Kent, and a npticp of the proceedings had, upon the occasion óf his death, in the Appendix to this volume.