Ward v. Howe

38 N.H. 35 | N.H. | 1859

Sawyer, J.

The first question presented by the case, namely, -whether the statute of limitations was suspended by the absence of the intestate from this State from the 5th of July, 1851, to the time of his death, in April, 1853, has once been considered and determined by this court, as reported in 32 N. H. 452. The case of Kendrick v. Kimball, 33 N. H. 482, has since been decided, and we are requested to review the decision heretofore made in this case, on the ground that the doctrine of Kendrick v. Kimball is irreconcilable with that decision, and consequently to be considered as overruling it. An examination of the two cases, however, clearly shows that the decisions are not conflicting or inconsistent with each other.

Kendrick v. Kimball is debt on a judgment recovered in this State. The defendant, at the date of the writ in the original suit in which the judgment was rendered, was an inhabitant of the State, but became a non-resident before the service of the writ was completed by the leaving of a copy at his place of abode here. Notice of the pend-ency of the action was consequently given by publication under an order of court, agreeably to the statute. The question in that case was, whether the judgment rendered upon such publication of notice could be enforced by an action of debt founded upon it, in the courts of this State. The point decided was, that although the judgment was admittedly inoperative beyond the limits of the State, and could not therefore be enforced by an action of debt upon it in the courts of a foreign jurisdiction, yet in the State where it was rendered it was valid as a judgment, and could be enforced by a suit upon it. The whole extent of the doctrine of that case is, that where a creditor obtains a judgment against a non-resident debtor, 'without personal notice, by pursuing the statute mode of publication under an order of court, the judgment may be enforced by suit upon it against the debtor, on his return to this State, although it would, not be valid in the foreign jurisdiction to which the debtor had removed, and would therefore be of no avail to the creditor, if, for the purpose of enforcing the payment of his debt, he should be compelled to follow the debtor with it into the foreign jurisdiction.

But the former decision in this case was, that the absence of the debtor from the State which will prevent the statute of limitations from running while the absence continues, must be such that personal service of the writ cannot be made upon the defendant by arrest, or by giving him in hand or leaving at his usual as well as last place of abode the summons or copy required to be served in order to constitute personal service; such service, in fact, as will give effect and validity to the judgment in the foreign as well as the domestic jurisdiction. It is expressly said by the judge, in delivering the opinion of the court, that the plaintiff', if lie had seen fit, might have obtained judgment by attaching the defendant’s real estate during his absence, and giving notice by publication ; but that the opportunity to make such attachment and give such notice is insufficient to prevent the effect of the absence in interrupting the statute law. What is required to prevent this effect of the debtor’s absence from the State is the opportunity, notwithstanding the absence, to make such pei’sonal service as is necessary to give the court jurisdiction to render a judgment which shall be valid in all courts. This is the doctrine of the former decision in this case. It is quite obvious that the subsequent case of Kendrick v. Kimball is not inconsistent with it.

We can perceive no ground for repudiating the doctrine established by the former decision in this case.

The other question in the case is, whether the receipt by the plaintiff of Jewett’s note for one hundred dollars, and the indorsement of the 25th of May, 1858, on account of it, constitute a payment upon the note in question.

If the one hundred dollar note was received as a payment, so much of the original debt is extinguished, not merely as against Jewett, but also as against the intestate. If, however, it was taken merely as further security for the debt, the liability of each of the signers of the original note is unaffected by it. At the time of the indorsement the plaintiff, the payee of the note, resided in Massachusetts, and has ever since resided there. The making and delivery of the note took place there, and the indorsement was made there. There can be no doubt that the question is to be determined according to the law as it is held in that State where the transaction occurred.

The cases cited by the counsel for the defendant are uniform in support of the doctrine in Massachusetts, as the rule of that State, that where a promissory note is given on account of a preexisting debt, it is presumed to be in payment, pro tanto, unless it was shown that there was an. agreement between the parties, or that circumstances existed from which it may be reasonably inferred that there was an agreement that it should not be received in payment. The doctrine in this State, and in most other jurisdictions is, that the presumption is the other way; that the note is not received in payment unless the proof shows affirmatively that there was an agreement that it should be so received, or that circumstances existed from which such an agreement may be inferred. If the question were to be determined according to the rule established here, it is quite clear that the one hundred dollar note must be held not to have been received as payment; and we think the same result is attained, upon the facts proved, under the Massachusetts rule. According to the decisions in that State, the giving of the note is merely prima fade evidence of payment, and the presumption that it was received as payment may be rebutted by proof that it was not so intended. The existence of circumstances from which it may be fairly inferred that the parties did not so intend, is sufficient, although it does not amount to proof of an express agreement. Butts v. Dean, 2 Met. 76.

In this case, the circumstances which appear in proof are, that Jewett, one of the four signers of a promissory note, then due, being called upon by the holder to make a payment upon it, furnished him with his individual note, payable on time, for the purpose of enabling him to raise the money upon it by a discount at the bank, and agreed to pay the expense of going to the bank to procure it to be discounted ; that the discount was obtained upon Ward’s indorsement; the note, at maturity, taken from the bank by him, without payment by the maker, and that it is still held by him against Jewett, as his mere promise, in substance, to pay one hundred dollars towards the original note. Under these circumstances it cannot be supposed, if the proposition had been distinctly made to the parties at the time of giving the one hundred dollar note, to treat it as a release and discharge of the original debt to that extent, whether Jewett ultimately paid this note or not, that Jewett would have claimed that result, or "Ward assented to it, if claimed. The parties must have contemplated nothing more than the giving by Jewett of an additional security for so much of the debt, which Ward could use for the purpose of raising money upon at the bank, and which was to be accounted for on the old note only in the event that Jewett ultimately paid the new; and the indorsement upon the old is to be regarded as having been made, not for the purpose of giving to the receipt of the new the effect of a payment pro tanto upon the old, but merely to secure Jewett against a double liability upon the two.

This is the equitable view of the case, and it certainly is not to be regretted that when called upon to give effect to the rule of law of a sister State, somewhat at variance with our own, it may be done with the same result as if our own governed in the case, and at the same time consonant to equity.

Judgment for the plaintiff for the amount of the note declared on, without deduction on account of the indorsement of 25th May, 1853.