Fowler v. Hunt — 10 Johns. 464

Majority

p. 470

Fowler against Hunt.

NEWYORK,

Oct. 1813.

Headnote

Where a debt ■ is contracted abroad by a person residing outofthe state, and the debtor after-wards comes within the state publicly, andso that tlie creditor, with ordinary diligence and due means, might arrest him, it is a return into this state within the thtaprovisofin thesth section of the statute of limitations, m!)’ and the toltrun ^ from the time of against the mand!^ de'

THIS was an action of assumpsit on a promissory note, made by'the defendant stDemararu, in South America, for 1,050 guilders, Holland currency, the 15th September, 1792, and payable to the plaintiff or order two months after date. The defendant pleaded non assumpsit, and non actio accrevit infra sex annos. The plaintiff replied that w'hen the cause of action accrued, the defendant was out of the state, to wit, at Demorara, and there resided until his return to this state, and the defendant brought his action within six years after such return of the defendant to this state; to this replication the defendant rejoined, and took issue thereon.

** was proved, at the trial, that in March, 1804, the defendant hired of the witness a farm at New Rochelle, in West Chester , . _ county, of which he took possession and occupied about two years, and the witness understood that the defendant had the preced3ng winter come to this country, with his family, from Detnarara, with intent to reside here. The witness, on his cross examination, said he had heard of the defendant’s being in West ^iesler 013 a visit in 1802 or 1803, but did not see him until he hired the farm in 1804. Another witness testified that both parties formerly resided in Demorara ; that it was about 8 years since the defendant returned ; that he saw him about two years before, about the year 1802, when he was here without his family.

On the part of the defendant it was proved-that the defendant was here in Mayj 1793, and staid about three months. Both parties came from Demorara to New-Yark in the same vessel. The defendant returned, but the plaintiff has resided here ever since. In 1802 the defendant again came here, and resided from August to December, having left his family in Demorara, and he

p. 471

staid two days at the plaintiff’s house. That in the autumn of $ 803, he returned here with his family, since which time he has continued to reside here.

The suit was commenced the 9th May, 1809. A verdict was 3alcen for the plaintiff, subject to the opinion of the court on the ease above stated.

P. W. Radcliff, for the plaintiff,

contended that the defendant’s coming to this state in 1793 and 1802, in the manner stated in the case, was not such a “ return into this state” as is contemplated by the proviso to the 5th section of the act, (sess. 24. c. 183.) and that the statute did not, therefore, begin to run against the plain-3 tiff’s demand, until the defendant came to reside here, in Avgust3 1803. The return, within the meaning of the act, is not a secret casual, or temporary coming within the state, and by one who resided abroad. The only reasonable and convenient rule is, that the statute shall begin to run from the time the party returns with intent to reside,within the state. It is true, that the plaintiff knew the defendant was here in the summer of 1802, and might have arrested him. The defendant has the advantage of a strong case in point of fact, on which the court will settle the rule on principles of convenience and policy.

Wells, contra,

was; stopped by the court.

This is a clear case. The defendant was in the state in 1793 and in 1802, with the knowledge of the plaintiff, and in his company, and might have been arrested at the pleasure of the plaintiff. Either of those instances was 65 a return into this state,” within the proviso to the 5th section of the statute of limitations, and sufficient to cause the statute to commence running against the plaintiff’s demand. The word return applies as well to persons coming from abroad, where they had resided, as to citizens of this state going abroad for a temporary purpose, and then returning. (Ruggles v. Keeler, 3 Johns. Rep. 267 .) The coming from abroad must not be clandestine, and with an intent to defraud the creditor by setting the statute in operation and then departing. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due

p. 472

m~ai~, of arresting the debtor. All that was done in this cas~ and the defendant is, accordingly, entitled to judgment.

Judgment for the defendant.^[1]

(a) (a) See White v. Bailey, 3 Mass. Rep. 271 .