Dukes v. Collins

charging the jury:

There are two questions for the jury, the first of which is, did the defendants, as alleged by them upon oath, settle with the plaintiff in April, 1868, and show him that he was indebted to them, in which exhibit he acquiesced. If you believe their testimony, they are entitled to your verdict. If on the contrary you do not credit it, but give your confidence to that of the plaintiff and believe that, as sworn to by him, there never was any such settlement, and also believe that his claim of indebtedness by them to him is sustained, then the plaintiff is entitled to recover the amount of his claim, unless he has allowed the statute of limitations to bar it.

This claim is quite sixteen years old. It is what is called a . simple contract debt; as to which the statute provides that suit shall be brought for recovery thereof within three years from the time the right to sue accrues, or not at all. I speak of the effect of the act. In this case as appears by the plaintiff’s testimony, the *6■board, etc., which is the -subject of the .claim, was furnished during part of the years 1867 and 1868, the time ending in April of the latter year. The cause of action, or, which is the same thing, the right to sue the defendants, accrued to the plaintiff at that time, there not appearing any agreement for credit, and there being no usage for such, as far as we are aware, in like cases. Regularly, therefore, a suit to recover this claim, was barred by the statute on the first of May, 1871.

The defendants have pleaded the act of limitations, and if issue had been taken upon such plea, the statute would have been a flat bar to this action; but the plaintiff has replied two allegations to the plea; the first of which is in effect that before the cause of action accrued, the defendants left the State and never afterwards, up to the time of bringing the suit, returned into the the State so that by reasonable diligence they could be served with process ; the other is, that after the cause accrued, and within three years thereafter, the defendants left the State, and up to the time of bringing this action had not returned, in manner aforesaid. Issue is taken upon these replications, according to the statement upon the record, and upon them the question is — did the plaintiff in this case use reasonable -diligence in endeavoring to ascertain whether the defendants had come within the reach of legal process. We say to you that reasonable diligence, in cases of absent debtors, requires that the plaintiff shall, at least, take some steps from time to time to ascertain whether his debtors can be reached by suit or not. Where a cause of action accrues whilst a defendant is a nonresident, the law would not require of the plaintiff the same degree of diligence as in a case where the defendant was a resident when it accrued and went out afterwards, but before the time for bringing suit had expired. In such case it is not unreasonable to require a greater degree of diligence. In the first case, as the plaintiff is not bound to keep a writ running against his debtor, there would be no hardship in requiring that the debtor should appear in the neighborhood of his creditor so that his presence might be known. But the case is very different where the debtor resided in the State whilst the cause of action was accruing, or after it had accrued. In such case, in order that the statute may be complied with, it is necessary that something, at least, like active diligence, should be *7done by the creditor to prevent the act from running. He is not, in such case, to fold his arms and await the coming of his debtor in his immediate neighborhood; but should be prepared to show that he has, at least, made, at different intervals or periods, inquiry as to the whereabouts of his debtors. He is not required to keep a suit pending against them; but where they have come into the State openly and notoriously so as to be visible to all that chose to seek after them—resorting to no concealment or other step to prevent their creditor knowing of their presence, and so remained long enough for him, if he had used ordinary means to inform himself of the fact, to find out that they or one of them was present in the State, and also to consult counsel and sue out process which might, by reason of their continued presence, have been served by the sheriff, the act commences to run again from the time of such return and reasonable opportunity for service of process, and never stops afterwards. This suit was brought on the 9th day of February, 1882. If you find that more than three years before that time, these defendants, or either of them, was in this State in such manner of openness, notoriousness before all the people where they were, as that the plaintiff might, if he had been looking after them and his claim as ordinary creditors would, have caused process to have been served upon them, then he was bound to have it issued and served; and not having done so, he is now barred. The defendants in this case went to Sussex from Frederica in this county, and that fact was known. You have testimony before you that they returned to Frederica after they left Sussex, and that they or one of them was there most of the time from 1871 to 1874, being sometimes temporarily absent in Philadelphia. ' It is also in proof that in 1878, in October, Albert Collins came to reside at Woodside in this county and engaged in business, and that he resided there or at Canterbury Station, two or three miles off, up to the time of the suit and now resides there. Whether this testimony is to be credited by you, and there is nothing to gainsay it, it is for you to say. If you take it to be correct, then to hold that due diligence was used by the plaintiff according to the requirement of the statute, would be virtually to repeal it.

Verdict for the defendants.