p. 479the bill and to all the discovery, except as to his continued residence out of the United States, and as to the charges in the bill relating to the character of the residences of himself and Hill in this state, if they ever came here, that the complainant’s cause of action or suit accrued, or arose, nlore than six years before the filing of the bill in this cause and the suing out of process against the defendant thereon. The plea also denied the allegation of the defendant’s continued residence out of the United States; and averred that he came to the state of NevvYork to reside, with his family, about the 7th of March, 1834, and continued actually and openly to reside here, and to transact mercantile business, until March, 1835; that he then left this state for a time and returned again in July, 1835, and continued to reside here openly until September in the same year. The plea also averred that Hill came to this state to reside in 1820, and continued to reside here openly for three or four years. The answer in support of the plea stated, among other things, that Hill died at sea in 1824 or 1825.
The assistant vice chancellor allowed the plea, and ordered the bill to be dismissed, unless issue was taken upon the plea within ten days. For a report of the case before the assistant vice chancellor, see 2 Sand. Ch. Rep. 61 ,
C. B. Moore & F. B. Cutting, for the appellant.
The statute of limitations (1 R. L. of 1813, p. 184,) does not bar the claims mentioned in the bill; because, as to some of the items, they are,demands arising out of partnership transactions, and are cognizable only in a court of equity. The action of account is the only remedy at law which could apply, and that action will not lie when the partnership consists of more than two persons. (Mc Murray v. Rawson, 3 Hill, 62 , and cases there cited. Beach v. Hotchkiss, 2 Conn. Rep. 425 .)This is a suit which concerns the trade of merchandize between merchant and merchant, and is therefore within the exception of the statute. (1 R. L. of 1813, p. 186, § 5.) The authorties cited by the revisers, (3 R. S. 703,) do not warrant their conclusions. (Coster v. Murray, 5 John. Ch. Rep
p. 480522, 531. Murray v. Coster, 20 John. 576 , 591, 603, 604. Atwater v. Fowler, 1 Edw. Ch. Rep. 425 , 426.) The case of Barber v. Barber, (18 Ves. 286,) relied upon by the assistant vice chancellor, is disapproved of in Robinson v. Alexander, (8 Bligh’s Rep. N. S. 352,) where there had been no dealings for fifteen years. See also Lansdale v. Brashear, (3 Monroe, 330;) Patterson v. Brown, (6 Id. 10, 11;) Manderville v. Wilson, ( 5 Cranch, 15 ; McLellan v. Crofton, (6 Greenleaf, 307 ;) in which last case the chief justice reviews most of the authorities. See also the opinion of Senator Yiele, ( 20 John. 590 .) The plea is double. It sets up two separate grounds of defence under the statute of limitations; one on the return of Hill in 1820; the other, by the return of Davison in 1834. They lead to two distinct and separate issues, and require different replies to each. (Beames’ Pleas, 13, 37, 39.) The answer either overrules the plea, by attempting to answer points covered by the plea; or it is defective, and fails to .support the plea, by npt denying that Hill and Davison have avoided the complainant, &c. and by not answering, both as to him and Davison, all the circumstances necessary to shew a fair and sufficient return, as against the complainant, within the meaning' of the statute. To avoid, means to shun, to endeavor to shun—to escape. To shun, means to endeavor to escape. (Johnson and Walker’s Dictionaries.) The return of Hill, in 1820, was not sufficient to bar this suit against Davison, under the. circumstances disclosed by the pleadings. Nor was the return of Davison, in 1834, sufficient to bar this suit. The circumstances do not shew that his ‘return was so notorious and public as to amount in law to constructive notice, or to raise the presumption that if the complainants had used ordinary diligence Davison might have been arrested. (Little v. Blunt, 16 Pick. 359 . Ruggles v. Keeler, 3 John. Rep. 261 . Fowler v. Hunt, 10 Id. 464. White v. Bailey, 3 Mass. 271 .) The old statute of limitations, (1 R. L. 1813, p. 186,) had not attached or commenced running, in favor of Davison, at the time of its expiration on the first of January, 1830. Davison never was in this state until 1834; at which time the statute of 1813 had expired. He never had any vest
p. 481ed rights under that statute. He was a resident of a foreign country until 1834, and the statute of this state, until he came within its jurisdistion, did not apply to him. The provision in the revised statutes, (2 R. S. 300, § 45,) was intended merely to save existing rights, and to prevent the new statute from having a retroactive operation. (Revisers’ Notes, 3 R. S. 704.) The previous law not having attached in favor of Davison, before the revised statutes went into effect, his case is no.t within the spirit or intent of the 45th section; and was not contemplated as a case that needed to be excepted. And if the revised laws of 1813 had not begun to run when the revised statutes of 1830 went into effect, then his coming into this state, in 1834 does not bar this suit; because he left again in 1835, and did not return until 1844. (2 R. S. 297, § 27.) The right to plead the statute of limitations of 1813 never attached to Davison, because he never was a resident or citizen of this state, nor within its jurisdiction, until several years after its repeal. (General repealing act, § 5, 2 R. S. 779.)If the complainant is barred in respect to his original demand, he may still have a right of action, upon the promise to paj when able; which right has accrued since 1830, and is to be governed by the revised statutes. (Wait v. Morris, 6 Wend. 395 . Waters v. Earl of Thanet, 2 Adol. & Ellis’ Rep. N. S. 757.) If the chancellor should dissent from these views and affirm the order of the court below, it should be without preju-. dice to the complainant’s right to file a new bill, or to amend, the present bill.James Smith, for the respondent.
The demand set, forth in the bill of complaint, is one that may be barred by the statute of limitations. The statute commenced running when Hill came to the state of New-York to reside, in 1820; and the demand was outlawed in the year 1826, before the passage of the revised statutes. Even if the statute had not began, to run as to Davison, in consequence of his not having returned to the state in the year 1820, when his partner first came here to reside, still, it had in part operated upon the action in question, and the
p. 482law as it existed before the revised statutes, and which had in part operated, must still be applied. The revised statutes do not interfere with the case, and consequently as Davison, himself, returned to the state in the year 1834, and continued to reside openly in the state, and to keep house therein for about one year, the statute at all events began to run as to him. And more than six years had expired, thereafter, before the com mencement of this suit; so that in any event the demand i.s outlawed.The bill having averred that the defendant bad resided out of the United States of America ever since 'the debt had accrued, it became necessary to support the plea of the statute of limitations, by an answer denying that allegation, and making the discovery, in that respect, called for by the bill. And the plea is, under the circumstances of the case, entitled to the favorable consideration of the court. The demand is set forth in the bill as having .arisen in the year 1816, about 28 years since. It is therefore a very stale demand, and this court should, either upon a plea of the statute of limitations, or upon an answer making the proper averment in that respect, presume a payment of the demand in question; and should refuse to entertain the bill.The first question for consideration in this case, is whether it is within the exception in the statute relative to actions which concern the trade of merchandize between merchant and merchant, their factors or servants. (1 R. L. of 1813, 186, § 5.) The recent decisions in England, and which appear to contain the most reasonable construction of this much contested exception, in the statutory provision, which was substantially the same in both countries, have placed it ■upon a ground which is capable of a rational application. In the case of Inglis and another v. Haigh, (8 Mees. & Wels. Rep. 769,) which came before the court of exchequer in 1841, it was held that the exception in the statute did not apply to an action of indebitatus assumpsit; but only to actions of account between merchant and merchant, their factors or ser
p. 483vants, concerning the trade of merchandize, or to actions on the case for neglecting or refusing to account, in conformity to some express or implied duty to do so. And this decision of the court of exchequer was fully concurred in, the next year, by the judges of the court of common pleas, upon a full examination of the question, in the case of
Cottam v.
Partridge, (4
Scott’s Rep. N. S. 819.) In the last case, it was also held that mutual dealings between merchants, where each was selling goods to the other, would not bring the case within the exception of the statute, unless there was some agreement, express or implied, that the sales on the one side should be set against those on the other, and the balance only be payable. In other words, the courts in England have settled the principle that the exception in the statute does not apply, although each merchant has items of account against the othea) where the accounts are so separate and distinct that the parlies may both bring actions of assumpsit, and recover tb4 amount of their respective accounts, in case a set-off is not claimed by the adverse party; so that an action of account could not be brought by one against the other. It has also been recently settled in the house of lords, in England, that in a case between merchants, or between a merchant and his factor or servant, concerning the trade of merchandize, where an action of account could have been brought by the plaintiff at law, the right to file a bill in the court of chancery, for an account, is not barred by the statute of limitations; although there have been no dealings between the parties, nor any promise to account, for more than six years.
(Robinson v.
Alexander, (8
Bligh’s Rep. N. S. 352.) And the case of
Barber v.
Barber, (18
Ves. Rep. 255,) decided by the master of the rolls in 1811, which was supposed to establish a contrary doctrine, was overruled. Or rather the report of that case was discredited; the lord chancellor, for the reasons stated in his opinion, supposing that the reporter had been misinformed, and that no such decision had ever been made by the distinguished judge who held the office of master of the rolls when the case of
Barber v.
Barber was supposed to have been decided.
/'
/
p. 485statutes on the subject. (2
R. S. 300, § 45. For although it is alleged in the complainant’s bill that the defendánt Davison promised, in his letter of 1817, to pay the debt whenever tie should be able to do so, and the bill does not show such ability previous to 1830, the statute of limitations had not run upon the demand at the time of making that promise; and there was no agreement, on the part of Didier & D’Arcy, to suspend the enforcement of their demand until the defendant should be able to pay it. The right of the complainant to recover in this suit, therefore, depends upon the original liability of the defendant, and not upon the subsequent promise to pay when he should be able.
The next objection to the defendant’s plea is that it is double. The form of this plea is, “ that the cause of action dr suit did not accrue or arise within six years previous to the filing of the bill.” And the averments in relation to the residences of the defendant and of Hill, in this state, are merely inserted therein to meet the suggestions, in the bill, which were intended to bring the case within the exceptions of the statute. And if some of those averments are not mere surplusage, they all tend to establish the single point of the plea, that the right of suit accrued more than" six years previous to the filing of the complainant’s bill; and that the suggestions of the bill which were intended to bring the case within the exception of the statute of limitations are not true. I shall therefore proceed to consider the more important question, to the parties in this cause, whethei either of thé averments in the plea relative to the residences of Hill and of Davison, in this state, brings the cáse within the exception contained in the last clause of the fifth section of the act of April, 1801.
That section provides, that “ if any person against whom any cause of any such action shall accrue, shall be out of this state at the time the same shall accrue, the person who shall be entitled to such action shall be at liberty to bring the same within the times respectively above limited, after the return of the person so absent into this state.” Under this provision of the statute it has been held that if the person against whom the right of action accrued had never been in the state, before suóh right of action
p. 486accrued, the suit might be brought against him at any time within six years after he first came into the state; although more than six years had elapsed before he came here.
(Ruggles v. Keeler, 3
John. Rep. 263 .) And where the debtor comes into this state, after the right of action has accrued, and is here publicly and openly, so that by reasonable diligence his creditor might have commenced a suit against him before his departure from the state, it is a return into this state, within the meaning of the statute.
(Fowler v.
Hunt, 10
John. Rep. 464 .) But a mere clandestine return, which will not enable the creditor, with ordinary diligence, to serve process upon him, is not such a return as will cause the statute of limitations to commence running against the demand; so as to bar it in six years from that time.
(White v.
Bailey, 3
Mass. Rep. 271 .) It has also been held, under a similar provision in the statute of a sister state, that where the defendant, who did not reside in the state, was in the habit of making temporary visits there for a few days, once or twice a year, but without the knowledge of the creditor, who had persons watching to have him arrested if they could find him in the state, it was not a return to such state, within the meaning of the statute.
(Little v.
Blunt, 16
Pick. Rep. 359 .) In the case under consideration, however, the open residence of Hill in' the state for three or four years, from 1820 to 1824, and of Davison for one entire year, from March, 1834, was such a return of both these parties, to the state, as was contemplated by the framers of this statutory provision; although, in point of fact, Didier & D’Arcy, who resided in Baltimore, were not aware of the residence of either of their debtors in this state.
It has been repeatedly settled, under this statutory provision, that if the debtor is in this state at the time the action accrues against him, or comes here subsequently, so that the statute once begins to run against the demand, it continues to run notwithstanding he departs from the state within the six years; and that no subsequent disability stops it. Even the death of either of the parties, after'the statute has once commenced running, will not prevent the limitation from attaching; except in cases which are provided for by some other statutory provision
p. 487There was, I believe, no provision in any of the statutes of this state, at the time of the death of Hill in 1825, by which the statute of limitations would be suspended by his death, if it had commenced running previous to that time; although he died out of the state, within the six years, and insolvent. The question then arises whether the return of one of two joint debtors, into the state, after the right of action has accrued against both, and his subsequent death, is a bar to a suit against the survivor; who does not come into the state until within six years of the time when the suit is brought against him.
Upon the argument of this appeal! entertained a very strong and decided opinion that the return of Hill to this state, in 1820, would not have the effect to bar the right of action here against the defendant Davison. It is true, under the statute' of James, in reference to disabilities of the parlies who are to bring the suit by reason of non-residence, which provision was not incorporated into the statute of this state, it has been held, in England, that the exception in favor of non-resident plaintiffs did not apply where some of them were not beyond seas. For the absence of the other was no excuse for the failure to bring the suit, by those who were within the realm, they being competent to institute the suit for themselves and the absentee, who together were joint owners of the debt for which an action was to be brought. (Parry v. Jackson, 4 T. R. 515.) But in the case under consideration it would have been perfectly useless to" institute a suit against Hill, who had no property, either of his own or of the firm of which he was formerly a member. And the reasons upon which the exception in our own statute is founded do not apply to such a case. I am therefore pleased to find that a recent decision of the court of queen’s bench in England, made since the argument of this 'cause, confirms the strong impression which I then entertained as to the law on this point. In Fannin v. Anderson, (9 Lond. Jur. Rep. 969,) this question came before that court for decision, under a s-imilar provision in the statute of Anne. And after a full argument, and taking time for consideration, the court decided that where one of the joint debtors was out of the realm when the
p. 488causé of á'étiou aCcfúed, although* the others Were Within the jurisdiction of the cbuTt at that titile, hé could ñdt set tip the statute Of limitations as a* ba'r ;• where the suit was commenced within six years after his return froin abroad. And stich I have no doubt is the reasonable- and proper construction Of otir statute on that subject*/
The residence Of Hill in this state from -1820, and the nég lec't to institute a suit- against him, not being Sufficient to take the' casé' out of the exception in the statute, as- to the defendant* Davison, it remains to be considered Whether the* residence of the* latter iti this State, in 1834 and 1835, and the ñégléoí to institute a Suit for mole' than six years after he cáñie béré to reside, is a bar to* the present suit. If this casé depended upon the provisions of the' revised statutes alone, it is evident that* the suit Would not lie' barred. As hé Mt the state before the expiration of thé' six years,* and only returned again a few day's previous to the service of the process upon him in this suit, thé 27th séctioli- of the title Of the revised statutes' relative to thé time* of commencing- actions, (2 R. S. 297,) would prevent a* residence' here for less than six years from operating as a bar.* For) by the provisions of that section, the* time the debtor has-resided out of the state after the cause of action accrued) is* not to be taken into' the account in the computation- of the time* within Which a suit must be brought against* him.* But none* of the provisions of the first four articles,, of the title of the revised statutes before referred* to, apply to* c-aSes where the'* right of action* accrued previous to the first Of January, 1830 although the person against whom the suit Was to• be instituted was- not a* resident of the state, so as to be* háble to Be sued here, until after the revised statutes went into- operation. Ob thé contrary, the limitation of the right- to- institute* a- suit against him) after hecame-intothis state, depended entirely upon* the laws- which were in force previous to 1830/ (2 R. S. 300, § 45.) The statute of limitations, therefore,, commenced running immediately after the defendant Dávisóñ Came here fo reside,, m March, 1834; and it continued to run, notwithstanding, his subsequent absence from the state.* For there is nothing to
p. 489taire the case out of the general rule, which existed and still continues to exist, in reference to cases coming under the act tif limitations of April, Í801, that where the statute once commences running it continues to i‘un notwithstanding any subsequent abseñcé of disability.
(Doe v.
Jones, 4 T. R. 300.
Peck v.
Randall, 1
John. Rep. 165 .) The remedy at law being barred by the statute, which is applicable to the case, the suit in this court also must be considered as barred thereby.
The dé'eretal order appealed from tim'st- therefore be affirmed, with costs;