Buck v. Spofford ( 1885 )

Appleton, J.

The plaintiff and the original defendant were tenants in common of a grist-mill, toward the repairing of which, one William G-. Chase liad, during the year 1838, performed labor and furnished materials, which he had charged the owners of the grist-mill. In 1843, Chase made and presented his bill to the plaintiff, tolling him it would soon be outlawed and requesting a settlement, which was made by balancing the account against “ the owners of the mill” thus: — “September 19, 1843, by charged to M. G-. Buck, $63,18,” which amount the plaintiff settled and paid on Eeb. 28, 1846, and on Jan. 8, 1851, brought this action to recover of the defendant’s testator his proportion of the sum thus paid. To the maintenance of this suit the defendants interpose the statute of limitations.

The debt was credited the mill owners and charged the plaintiff on Sept. 19, 1843. It was held in Lyeth v. Ault, 7 Exch. 669, that the acceptance by a creditor of the sole and separate liability of one of two or move joint debtors, is a good consideration for an agreement to discharge all the other debtors from liability. If this is regarded as an ex-tinguishment of the debt then existing against the owners of the mill and the substitution instead thereof, of the sole liability of the defendant, like the novation of the civil law, the right of action on the part of the plaintiff must be regarded as then accruing, and the statute of limitations would constitute a perfect bar. Thompson v. Percival, 5 Barn. & Aid. 925 ; Hart v. Alexander, 2 Mees. & Weis. 484.

If no settlement took place on Sept. 19, and the debt still remained subsisting against the owners of the mill, then the debt was barred by the statute when payment was made on Eeb. 28, 1846. If the debt was at that time barred, the plaintiff could not revive the debt against his co-tenant and impose upon him obligations from which by the provisions of the statute he had been exonerated. Such a position would be alike against the express language of the statute and its well settled construction. R. S., c. 146, § 24; True v. Andrews, 35 Maine, 183; Pierce v. Tobey, 5 Met. 168.

It is immaterial at which time the plaintiff is to be regarded as having paid the debt, the defendant’s proportion of which he seeks to recover in this action, as in either event he must fail in his suit.

Plaintiff nonsuit.