Cole v. Jessup

The record in this case presents two main questions: one upon the exception- to the decision of the judge, permitting the entries made in the memorandum-book-kept by the witness, Judson, to be read in evidence to the jury; the other upon the demurrer to the rebutter.

In regard to the point raised upon the bill of exceptions, it is to be- observed, that the official character of the notary had nothing whatever to do with the reception of the evidence. The circumstance that the witness, Judson, professed to act, in presenting the note for payment, and in giving notice to the endorsers, as the clerk of his brother, the notary, neither added to or detracted from the force of his acts. Any officer or agent of a bank, or any'private citizen, may, if authorized by the holder, demand payment of a note, and give notice of its nonpayment, with the same effect as if done by a notary. The note in this case was payable at the Ogdensburgh Bank, of which the witness-was teller; and the possession of the note by him wTas sufficient evidence of his authority to make the demand and give the notice. (Bank of Utica agt. Smith, 18 John. R. 280.)

The memorandum in question was offered, in connection with the oral testimony, as evidence, not that the • notary had performed the service, but that it had been done by the witness. The entries were made, by the witness himself, at about the time the acts were done, and in the usual course of his employment as clerk. The original entries were produced, and were fully verified by the witness, who testified, that he knew they would not have been made, if he had not done the acts: This brings the case clearly within the rule established in the cases of Merrill agt. The Ithaca and Owego Railroad Co., ( 16 Wend. 586 ,) and Bank of Monroe agt. Culver, ( 2 Hill, 531 ,)

He insists that the entries in this case are not mere business entries, made by a clerk or agent in the performance of his ordinary duties 3 but that they purport to be made by a public officer, clothed by law with certain powers, whose written memoranda are, under certain conditions, made evidence of his official acts; and cites the case of The Onondaga County Bank agt. Bates, ( 3 Hill, 53 ,) and the authorities there referred to, as showing that a notary cannot delegate his powers to a clerk or deputy; and that the attempt to do so is censurable: from which he argues, that the entries in this case are to be regarded as made in violation of law, and riot in the ordinary course of business; and that this illegal taint strips them of the credit which attaches to such as are-legitimately made.

This argument, however, is based upon a misapprehension of the scope of the authorities referred to. The case of The Onondaga County Bank agt. Bates simply.decides, that in order to make the certificate of a notary evidence per se, under the statute, of the facts stated in it, it is necessary that he should perform the duties in- person; and that if he employs an agent for the purpose, his acts are deprived of their official character, and become subject to the ordinary rules of evidence.

The English authorities cited, simply condemn the employment of a clerk to perform those duties to which the official character of the notary is essential: such as the protesting of a foreign bill of exchange; but contain no intimation against the performance, through an agent, of acts which may properly be done by any private citizen.

As it is entirely immaterial to the validity of the acts themselves in this case, whether they were performed by the witness as the clerk of the notary, as the agent of the bank, or as a private individual 3 so, I apprehend, is it unimportant to the credit of the entry whether it was made in the books of the notary, in those of the bank, or in the private memorandum-book of the witness. ’ There can be no doubt, therefore, that the memorandum in this case was properly received in evi

This conclusion is decisive of the case. The plaintiff having, by leave of the court, put in two distinct and separate replications to the plea of the statute of limitations, if he is successful upon either, the defence set up in the plea is overthrown.

The verdict, therefore, upon the issue joined upon the first replication being sustained, it follows that the judgment must be affirmed, whatever disposition may be made of the demurrer. This consequence is resisted by the defendant’s counsel, but it admits of no doubt whatever. One sufficient answer to a single pleading is enough. If the second replication were stricken out entirely, or adjudged frivolous, it could not affect the first. The plaintiff would still be entitled to judgment upon his verdict, sustaining that replication.

It is not indispensable, therefore, to the disposition of the case, that this court should pass at all upon the issue of law. But, as this issue presents questions of some moment as to the construction of the statute of limitations, in regard to which the decisions are conflicting, it seems expedient, since these questions are directly involved in the case, that this court should express its opinion upon them. Although the statute upon which the questions arise has been repealed, it is substantially re-enacted in the Code. (§ 100.)

The principal questions presented by the demurrer, in this-case, arise upon the defendant’s rebutter, although the previous pleadings on both sides are assailed. The rebutter is alleged to be bad for two reasons:

1. Because it does not show that the defendant returned to this state under such circumstances that the creditor might, with due diligence, have commenced his suit: and,

2. Because it in no way answers the material allegation in the sur-rejoinder, that the suit was commenced within six years next after the causes of action accrued, exclusive of the time of the defendant’s absence from, and residence out of, the state;

The provision of the statute, with reference to which the pleading in question was framed, and upon which the questions upon the demurrer depend, 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 times 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 R. S. 297, § 27.)

The first branch of this section is taken from our statute of limitations in force prior to the revision of 1830. (1 R. L. of 1813, 186, § 5.)

Under this provision of the former statute it was held, that the return of an absent debtor into the state, in order to come within the terms of the act, and to cause the limitation of the time for commencing the action to begin to run, must be so “ public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence, and due means, of arresting the debtor.” (Fowler agt. Hunt, 10 John. 464 .)

The allegation here is, that the defendant “ returned publicly to this state.” It is insisted by the plaintiff that this is not enough; but that the defendant should have gone further, and alleged the circumstances necessary to bring the case within the decision in Fowler agt. Hunt. The supreme court so decided, and held the rebutter to be bad for this reason.

The superior court in the city of New-York, in the case of Ford agt. Babcock, (2 Sandf. S. C. R. 518,) has decided directly the reverse. The decision of the supreme court in this cáse, which is reported in 2 Barbour’s S. C. R. 309, was referred to and considered by the superior court in deciding the case of Ford agt. Babcock. The reasoning of Judge Duer, in the latter case, upon this point, seems to me conclusive, and I there

And again: That it having been held in several cases, viz., Fair agt. Roberdean, ( 3 Cranch, 174 ,) Fowler agt. Hunt, ( 10 John. 464 ,) White agt. Bailey, ( 3 Mass. 271 ,) and Little-agt. Blunt, ( 16 Pick. 369 ,) that when a defendant pleads a: return under the statute, he is bound to prove all.the facts necessary^ to show the return to have been such as the státute contemplated^ although none of these facts are specifically averred, it follows that the plea cannot be defective for the want of such averment; that if the averment would add nothing to the proof which-the defendant is under- obligation to produce, it- capnot. be necessary to the- validity of the plea.

The conclusion from this reasoning - is inevitable, that the rebutter is, in this respect, sufficient ;• and that the decision" of the supreme -court upon this point was erroneous.

The next question is, whether the rebutter is bad, because it does not, in any way,- answer the allegation-in the sur-rejoinder, that the action was commenced-within six years after the causes of action accrued, exclusive of the-time -of-the defendant’s absence from, and residence .out of, the"- state.

This-question depends mainly upon the accuracy-of the construction of the statute upon which the sur-rejoinder is based. We shall have ahelear view of the opposite - construction put upon the statute in question -by-the.defendant in the rejoinder and rebutter upon the one hand, and-by the plaintiff in the' surrejoinder on the other, if we recur for a moment to the series of pleadings terminating in the demurrer. - •

Plea, that the causes of action did npt accrue within six years next before; &c. ■ ’ . ’ -

Rejoinder, that after the departure alleged in the replication, to wit,' on the 1st of May, 1837, the defendant publicly returned into the state, and that the action was not commenced within six years after such return.

This rejoinder assumes, that the latter branch of § 27 (2 R. S. 297,) provides for only a single absence; and that, where a debtor has once left the state after the accruing of the causes of action, and returned, the action must be commenced within six years after such return, without, regard to any subsequent absence.

Sur-rejoinder, that after the return mentioned in the rejoinder, to wit, on the same day, the defendant again departed from and resided out of the state for the space of four years, and that the action was commenced within six years next after the causes of action accrued, exclusive of the time of the defendant’s absence, &c.

The sur rejoinder is based upon a construction of the statute directly opposite to that assumed by the rejoinder, viz., that the latter branch of § 27 (2 R. S. 297,) provides for the case of successive absences, and that, when they are repeated, not only the first, but the aggregate of the whole is to be deducted.

Rebutter, that at the time of the accruing of the causes of action, and at the time of the return mentioned in the surrejoinder, the defendant resided out of this state; that afterwards, to wit, on the 1st of September, 1837, he returned publicly into the state, and that the action was not commenced within six years after such last mentioned return.

The allegation in the rebutter, that the defendant resided out of the state when the causes of action accrued, seems to have been intended to raise the question whether the latter branch of § 27 applies at all to such a case. Beyond this the rebutter is a mere reiteration of the ground taken in the rejoinder.

From this brief review of the pleadings, it will be seen that

Both these questions have been presented to the courts upon several occasions, and the decisions upon them are irreconcilably conflicting. The first arose in the case of Randall agt. Wilkins, ( 4 Denio, 577 .) The court in that case held, that where the debtor resided" out of the state when the cause of action accrued, the statute would commence running whenever he should come openly and publicly into the state, so that the creditor, by the exercise of ordinary diligence, might cause process to be served upon him, and that having once commenced, it would continue to run, although the debtor should immediately leave the state, and continue abroad until the limitation had expired.

The view taken by the court in this case seems to have been, that the first and second branches of § 27 were intended to provide for entirely distinct classes of cases, the first being intended as a re-enactment, without modification, of that portion of the former statute from which it was copied; and the second designed to be limited to cases where the debtor is within the state when the cause of action accrued.

But this case stands not only wholly unsupported in this view of the statute, but directly opposed to the other cases in which the question has arisen. In Didier agt. Davison, (2 Bar. Ch. R. 477,) Chancellor Walworth puts a construction upon this section entirely adverse to that adopted in Randall agt. Wilkins. It is true, that the point does not appear to have been seriously contested in that case; but in the case of Ford agt. Babcock, (2 Sandf. S. C. R. 518,) the subject was very fully considered; and it is, I think, there conclusively shown, that the construction adopted in Randall agt. Wilkins is irreconcileable with either the letter or the spirit of the statute. So far, therefore,

The only remaining question is, whether successive absences can be accumulated, and the aggregate deducted under the latter branch of § 27, in cases to which that branch of the section applies. There is but a solitary decision, aside from that of the supreme court in this case, upholding the negative of this question, viz., that of Mr. Justice Nelson in the case of Dorr agt. Swartwout, ( 5 N. Y. Legal Observer, 172 .) This was the only authority cited by the supreme court to sustain the view taken by the statute in this case. But the case of Dorr agt. Swartwout is in direct conflict, not only with the opinion of Chancellor Walworth, in the case of Didier agt. Davison, supra, and with that of the superior court of New-York in the case of Ford agt. Babcock, hut also with that of the late supreme court in the case of Burroughs agt. Bloomer, ( 5 Denio, 532 .)

In the last two of these cases, the case of Dorr agt. Swartwout is expressly referred to and disapproved; and in the case of Ford agt. Babcock, its construction of the statute is, I think, successfully overthrown by a process of cogent reasoning drawn from a review of the evils which existed under the former law, and the apparent design and object of the new provision. I have no hesitation, therefore, in adopting the construction, in this respect, given to the statute in the three cases last referred to, rather than that adopted in Dorr agt. Swartwout.

It follows from this that the stir-rejoinder is good, the rebutter bad, and that the plaintiff is entitled to judgment upon the demurrer. The supreme court held the sur-rejoinder to be bad as well as the rebutter; but, as it also held the rejoinder bad, its conclusion, although resting upon an entirely different view of the statute, was the same as that here arrived at.

Judgment, of the supreme court affirmed.

Tompkins agt. Acer.

Isaac S. Smith, [l. s.]