Dorr v. Swartwout

I have had some difficulty, on account of the manner in which the bill of exceptions has been made up, in ascertaining, satisfactorily, the extent of the ruling of the court at the trial; that is. *930whether or not it assumed to decide questions of fact which properly belonged to the jury. I agree that the court was right in refusing the instructions prayed for by the counsel for the defendant, upon the evidence as it stood in respect to the question of a new promise; as. 1 think, there was sufficient to require the point to be submitted to the jury. If they had found that the declarations and acknowledgments made by the defendant were made with reference to his individual liability and indebtedness, and not to the liability and indebtedness of the government, the plaintiffs would clearly have been entitled to their verdict. There were facts and circumstances attending the acknowledgments that left this point open to observation, and made it one proper for the determination of a jury.

But the court is made to go further, and to decide, that, as matter of law, the evidence was sufficient to take the case out of the statute of limitations, thus assuming, in favor of the plaintiffs,'the question of fact, upon the finding of which the legal effect of the acknowledgments depended. If the declarations were made by the defendant with reference to his own indebtedness, the words wore sufficient to sustain the promise; if with reference to the indebtedness of the government, it would be otherwise; and whether the one or the other was a question for the jury. If the bill of exceptions had set forth the ruling of the court refusing the instructions prayed for, and then stated, in the usual way, that the case was submitted to the jury, I should have had no difficulty. As it stands, I do not see how a new trial can be avoided.

The second question, and which arises upon the provisions of the Revised Statutes of Xew-York concerning the limitation of actions, is more difficult. The section in question is as follows: “If at the time when any cause of action specified in this article, shall accrue against any person, he shall be out of this state, such action may be commenced within the terms herein respectively limited, after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” 2 Rev. St. 297, § 27. The latter branch of the section presents the point involved in the case.

On the part of the plaintiffs it is insisted, that in all cases where the defendant departs from and resides out of the state after the cause of action has accrued, the statute ceases to operate until he returns into the state; and that if he again leaves before the period of limitation has elapsed, including the running of the statute before his first departure, it also ceases to operate until he returns again, and so on till the whole period expires; that a succession of absences is to be taken notice of and subtracted in computing the time; in other words, that in order to give effect and operation to the limitation, the defendant must be in the state, and subject to the process of the court, during the whole period to be allowed in the computation of the time of limitation. On the other hand, the defendant contends that but one case of absence is provided for by the language of the section; and that, on the return of the defendant into the state after his first departure, so as to be subject to the process of the court, and in a way to give operation to the statute, it then continues to operate, notwithstanding a second or subsequent departure.

The last clause of the section will, doubtless. admit of either interpretation; and I regret the necessity of passing upon it, until it shall have been expounded by the state tribunals. But, after the best consideration I have been able to give to it, and after much hesitation, I am inclined in favor of the latter construction, as most in harmony with the first clause, which is in pari materia, and also with the previous legislation of the state on the subject Nor can any very good or obvious reason be assigned, why a succession of absences from the state should be provided for in case the defendant departs after the accruing of the cause of action, which would not be equally applicable to a like abatement of the limitation, in case his departure had taken place before the cause of action had accrued. In respect to the first clause, (which is but a copy of the old law,) whatever may be the absences or departures from the state, after the first return of the party into it so as to be subject to the process of the law, they are not regarded, and the limitation continues to operate. The latter clause is new in the Revised Statutes. The case of departure after the cause of action had accrued, had never before been provided for; and the legislature, probably, intended to suspend the operation of the limitation in case of one departure, in analogy to the case of an absence when the cause of action accrued.

There are inconveniences, also, attending the practical working of the clause, upon the construction contended for by the plaintiffs, which should disincline the court to adopt it, unless upon the most imperative language. A return into the state, which ■will give operation to the statute of limitations, must be under such circumstances as will enable the plaintiff, with the exercise of reasonable diligence and attention to his rights, to serve process personally upon the party. He must have knowledge of the return into the state, or the circumstances must be such as will warrant a jury in bringing knowledge home to him; otherwise. the return amounts to nothing. Now, it is obvious that this question would be involved in each successive return into the state. Because, unless each return is accompanied with the circumstances men*931tioned, no part of the time should be allowed in computing the limitation. The issues would be exceedingly complicated and embarrassing, in the case of numerous returns and departures within the limited period fixed by the statute. I can hardly think that the legislature - contemplated such a construction or operation of the clause.

It may be added, also, that the clause in terms provides for but one departure from the state, and consequently for but one return. It does not indeed put the operation of the limitation expressly upon the return into the state; but it does virtually. It contemplates the running of the statute on the. return after the departure from the state and residence abroad; and if but one departure or absence is provided for or intended, of course, .on the first return, the limitation goes on and continues uninterruptedly till the whole period expires. The construction of the statute is not necessarily involved in this case, upon the bill of exceptions, but it is proper to express an opinion on the question with reference to a new trial. New trial granted.