Brown v. Delafield , 1 Denio 445 ( 1845 )

By the Court, Beardsley, J.

It seems to me quite clear,' that the statute under which it is attempted to support this replication, does not apply to such a case. (2 R. S. 297, § 27.) Here was a joint cause of action on contract against two persons, one of whom departed from the state within the period of limitation, but the other continued to reside within it. Such a case is not within the terms of the section. The words are, “ if at the time when any cause of action specified in this article shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respeclively 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 the state, the time of his absence "shall not be deemed/or taken as any part of the time limited,” <fcc. This language plainly refers to a cause of action existing against one person alone, and not where it exists against several persons jointly. But by the “ act concerning'the revised statutes,” (id. 778, § 11,) the word person, as here used, is declared to mean persons; so that whenever a cause of action accrues against several persons who are absent from the state, or depart therefrom, the period of their absence shall not be deemed any part of the time limited for the commencement of a suit founded.on such cause of action. This, however, is not a cause of action against one person alone, who had been out of the state, nor is it a cause of action against several, all of whom have been so absent; it is therefore not within the terms of the statute. (Perry v. Jackson, 4 Durn. & East, 516.)

Nor is it within its spirit. Here one of the defendants remained within the state, and both might at any time have been sued under the act" relating -to proceedings against joint debtors, and the plaintiff.would thus have had judgment against both. On the return of the absent defendant, an action of debt might have been brought against him and his co-defendant therein, or. the judgment so recovered. (Id. 377, §§ 1 to 5; Mervin v. Kumbel, 23 Wend. 295.) In such case the resident defendant could not have pleaded the' statute of limitations, and should the one who had been absent interpose that defence, a replication like the one before the court would furnish a sufficient answer to it. All causes of action founded on contract, where a part only of the parties liable are out of the state, were thus fully provided for before this section was enacted, and no necessity exists for giving it the construction upon which this replication proceeds, and which Avould be plainly against the "words used.

Actions founded on torts stand on other grounds. Torts are joint and several. A resident defendant who is liable on such a cause of action may be sued alone, although another person who is out of the state, might be joined with him in the same action. But such absent person will not escape, for on his return he also may be sued, and the statute of limitations will furnish no defence, as the fact of his absence may be set tip in answer to such a plea.

This replication is bad, and the defendants are entitled t<? judgment, but with leave to amend on the usual terms.

Judgment for defendants.