Gray for the plaintiff in demurrer. The words of our statute, unlike the English statute, are in the singular number, and it may well be doubted whether it was intended to apply to such a *Page 545 case as this, in which there are four co-defendants, only one of whom was beyond the reach of process and out of the State when the cause of action accrued and until after the original limitation of the statute had elapsed; and it was so held under a similar statute in the State of New York, and also that in an action of assumpsit against several defendants, it is no answer to a plea of the statute of limitations that one of them within six years from the accruing of the cause of action departed from the State and continued absent until the commencement of the suit, sell the persons liable upon a joint contract must depart from the State in order to arrest the running of the statute against the demand. Brown v. Delafield, 1 Denio., 445. And it was so held in Bruce v. Flagg, 25 N. J., 219, and in Sheey v. Mandevilleet al., 6 Cranch., 253.
Bradford for the defendant in demurrer. The question is, when the contract and cause of action are joint, and not both joint and several, does the absence of one of the several defendants from the State at the time of the accruing of the cause of action, save the bar of the statute of limitations against the other defendants who were in the State when the cause of action accrued, and have been subject to the process of the court from that time until the suit was commenced? The law is now so settled, and the cases cited on the other side have been overruled by later decisions. That of Brown v. Delafield, 1 Denio., 445, by Denny v. Smith, 18 N. Y., 567, and Cutter v. Wright, 22 N. Y., 472, and the case of Sheey v. Mandeville et al., 6 Cranch., 253, by Trafton v. The United States, 3 Story, C. C. Rep., 646, and by Mason v. Eldred et al., 6 Wall., 231. And the reason of it is being jointly liable only, they must all be sued jointly, and if a judgment be recovered against one of two joint creditors, it is a bar to an action against the other before satisfaction. King v. Hoar, 13 M. W., 493. Joint debtors must be jointly sued. If all are not sued, it can only be pleaded in abatement, and if the defendant fails to plead it in abatement, judgment will be given against him. Robertson v. Smith and Others, 18 Johns., 459. A judgment recovered against one partner is a bar to a *Page 546 subsequent action against both. Smith and Another v. Black, 9 S. R., 142. To an action against two on a joint promise, the defendants pleaded a former judgment recovered against one of them on the same promise, and it was held a good bar. 13 Mass., 148. It is also well settled in the English as well as the American courts, where it has been held that under stat. 4 Anne, chap. 16, § 19, if a right accrues against several persons, one of whom is beyond the seas, the statute of limitations does not run till his return, though the others never were absent from the kingdom. Fannin v. Anderson, 53 E. C. L. Rep., 810; Town v. Mead, 81 E. C. L. Rep., 123. At common law the only course to pursue in case of a joint contract, and a joint suit as it must be against all of the defendants when there are two or more of them, and one of them is out of the kingdom, is to sue out the writ against them all and have it served on all of them within the kingdom, and returned not served or not arrested as to the other, and then to proceed by due course of law there to outlaw him, which must be done before any declaration can be filed or anything further can be done in the prosecution of the action against the others, but when the process of outlawry has been completed with a reference to him, the plaintiff proceeds, and if his evidence is sufficient recovers judgment against the others. But the process of outlawry is unknown in the courts of this State, and of every other State in this country, and therefore there is no method of doing it in that or any other way under our laws or practice.
Gray. According to the obvious meaning of the statute, the saving referred to does not support the replication; for the design of it was only to save the right of action against one or more joint debtors when he, or all of them, if more than one, was or were out of the State at the time the cause of action accrued. It has been decided in one of our States that in an action on a joint contract against two or more defendants a jugdment may be recovered against one or more, though the statute of limitations has barred the action against others. Town v. Washburn et al., 14 Mines, 268. *Page 547 The question raised by the pleading in this case is: Does the act of limitations begin to run against a joint contract until the return of a co-contractor who is out of the State at the time the cause of action accrues?
This is an action of assumpsit for the hire of a steamboat, the narr. being composed of the common counts. The plea relied on is the act of limitations, to which there is a replication of the absence of Parker, one of the defendants, and his return and suit within the statutory time thereafter. The defendants demur, and the plaintiff joins therein; so that the question is as before stated.
It may help to a proper understanding of this question, to consider the state of the law originally with reference to suits upon contracts, and the changes made in it; also the law with respect to suits on joint contracts, and to outlawry, and pleas in abatement. With such law before our minds, we shall be better able to comprehend and decide it.
Formerly there were no statutes of limitation of actions; but courts, however, instructed juries to presume a debt to be paid where no suit had been brought upon it for twenty years, or recognition of it made in that time. This was in analogy to other legal presumptions. Such state of things continued until the year 1683, when the statute of 21 James I., chap. 16, was passed, the third section of which prohibited the bringing of certain actions (including that in this case) after the expiration of six years from the time the cause accrued; with a saving as to infants, persons non compos mentis, femes covert, persons imprisoned or beyond seas, so as they took their actions within the above time after the impediment ceased, etc. This was the law, without any change, until the fourth year (1705) of the reign of Queen Anne, twenty-two years afterwards, when chapter sixteen of her reign was passed, the nineteenth section of which provides for the case of absent defendants, as follows: "That if any person or persons" against whom there should be any cause of action of trespass, etc., "or any of them be, or shall be at the time of any such cause or suit or action given or accrued, beyond the seas, that then such person or persons, who is or shall be entitled *Page 548 to any such suit or action, shall be at liberty to bring the said actions against such person and persons, after their return from beyond the seas, within such times as are respectively limited for the bringing of the said actions" by that act and the act of James. These statutes form the law of England to this day, we believe, with respect to the limitation of actions.
Whether the statutes of James and of Anne were recognized as in force in this colony we have no means of knowing; but seeing that the legislature of that time passed an act on the subject of them, it is to be supposed they were not. In the 15th of Geo. II. (1742) a statute was enacted limiting the time for bringing personal actions (with certain exceptions not necessary to be stated) to three years, with the saving (as in that of James) as to absent or disqualified plaintiffs, and (as in that of Anne) with respect to absent defendants (Del. L., Vol. I., p. 228). The language of the sixth section of that enactment is in these words: "And if any person or persons against whom any of the causes of action before mentioned shall arise, shall at the time of the cause of suit or action arising, or afterwards before the time of bringing such action be expired, be beyond seas, or go out of this government, then the person entitled to such suit may bring an action after the return of such person, so as he bring the same within such time as is before limited by this act." Afterwards, on the 12th of April, 1773, a supplement to that act was passed which conformed the limitation for suits by plaintiffs to the statute of James, viz., six years, but continued the provision with respect to absent defendants — that is, allowing three years after return to bring the action — using the same language as above quoted (Ibid., 324). And on the 4th of July, 1792, the State legislature passed an additional supplementary act, limiting the time for bringing all personal actions whatever, except debt founded on record or specialty, and accounts between merchant and merchant, to three years after the cause accrued, with the saving as to infant plaintiffs, femes covert, non compotes or imprisoned; but without that of plaintiffs "beyond sea or out ofthe State," but preserving the same time as before, and by the same language, with respect to absent defendants. (Del. L. Vol. II., p. 1031.) *Page 549
This was the state of the law down to 1829, when the compilation of statute law known as Hall's Digest was reported to the legislature and passed. At page 397 of the Digest is, the limitation law, the fifth section of which is in effect as before, except that mutual and running accounts are substituted for accounts between merchant and merchant, and that a new provision is inserted making six years the limitation for suits in the case of "a promissory note, bill of exchange, and acknowledgment under the hand of a party of a subsisting demand." The ninth section is a proviso, and reads thus: "Provided, that when a cause of action arises in this State, if the person liable to such action be not an inhabitant of this State at the accruing of such cause, or abscond or remove from this State before the expiration of the time allowed by this act for bringing such action, the time during which such person shall have been out of this State shall, in applying either of the limitations of this act, be deducted; and in every such case at least one year from the return of such person into this State shall be allowed for bringing such action." This section introduced very important changes, confining the saving as to defendants to cases when the cause of action arose in the State, and apparently using the term "not an inhabitant" as equivalent to person beyond seas, and also including the case of an absconding or removing debtor, so as to provide for objection that such a one was not a person beyond seas within the meaning of the prior acts. It will be observed also that the words "or persons" used in the beginning of the sections of the colonial acts of 1742 and 1773 are omitted in Hall's revision. This was not to prune a redundancy, as appears by the preface to his work, but because, no doubt, he considered the singular word to include its plural, when necessary to the sense. But it is noticeable that the words "or any of them," occurring in the statute of Anne, after the designation of actions do not appear in our colonial acts. Lord Denman, in Fannin v. Anderson, 53 E. C. L., 811, thought they referred to the actions mentioned in the former, but Justice Maule, in Towns v. Mead, 81 E. C. L., 123, took a different view, and referred them to the words "person or persons" in the beginning of the *Page 550 section, and gives a reason which seems conclusive of the correctness of such view. The different actions named are in the singular number, separated by the disjunctive conjunction or; whereas, the word "persons" being a plural noun, it was appropriate to the construction given the statute, that the application of the words "or any of them" should be to persons. It would seem that Justice Maule, in the common pleas, did not intend to rest his opinion upon the sole ground taken by Lord Denman in the Queen's Bench, that the statute of Anne was intended to dispense with the tedious and expensive proceedings of outlawry in the case of an absent co-defendant.
If the opinion — that Justice Maul took the true view of the words "or any of them," used in the statute of Anne, be correct — and we think it is — then the omission of those words from our statutes is very significant, and would seem to point to the conclusion that the running of the statute would not be suspended if part of the co-defendants should be absent when the action accrued, others remaining in the State. Those words were intended to apply to actions, or persons (we think the latter), and could not have been omitted to prune redundancy; for, as applicable to the plural noun, persons, they could not have been a redundancy, their use being necessary to apply the statute to the case where one, or some, of several defendants was absent.
It seems to have been an opinion about which there was no difference in the minds of the English judges, that the object of the statute of Anne was to dispense with proceedings in outlawry where there were several defendants, and some of them beyond sea. At first it would seem strange that no case occurred calling for construction of the statute of Anne for a hundred and forty years; but it is not so, when we take into consideration the fact that a plaintiff could always proceed against an absent defendant by outlawry simultaneously with his proceedings against resident defendants, in which case no plea in abatement could be sustained. There was, therefore, no ground for holding the act to apply where all the parties were not absent. When however, in 1834, the statute 3d and 4th William IV., chap. 39, § 8, was passed, abolishing pleas in *Page 551 abatement unless a co-defendant was within the realm, there was no occasion to invoke the statute; and then the act applied, and the joint liability was, virtually, turned into a several one — for Fannin v. Anderson and Towns v. Mead, are each actions against one only of several joint defendants. It is true in the last case the defendant was a survivor; but in the former both the contracting parties were alive. Since the latter statute, all contracts are joint and several virtually — no plea in abatement for non-joinder being allowed. We must treat these considerations as present to the mind of the English judges when the above cases were decided.
But the statute of Anne was, we think, never in force in this State; nor was that of James (though it obtained in the province of Pennsylvania); having been passed in 1713. It is not certain, either, that proceedings in outlawry were ever taken here. And it is all the more likely they were not, because they were wholly unnecessary.
When in England, before the construction given the statute of Anne, it was necessary to sue joint defendants, all had to be included; for otherwise, upon a plea in abatement the suit would be quashed. They were therefore included in the writ. If, by the return, it appeared that some one or more could not be found, proceedings against them to outlawry had to be taken, and no declaration was filed until they were complete; and it was entitled as of the term of the completion of the outlawry. Then all were included in it, and the case went on precisely as if the absent defendant had appeared. Of course no plea in abatement would be proper in such case, for the suit would be against all, the declaration against all (2d Sellon's Practice, 279); and, the outlawry proceedings having been completed against the absent one (and set forth in the narr.), which authorized seizure of his goods, person, and the issues of his lands under appropriate writs of execution, judgment in the action would be rendered against the resident defendants; and thus the plaintiff would have the complete remedy, the value of which was so important with Lord Denman in his opinion in Fannin v. Anderson. In fact, that was all the remedy he could have before the statute of Anne. *Page 552 That the absent defendant might reverse the proceedings in outlawry was no objection to the quality of the remedy, because he could only do this, before judgment, by appearance and putting in special bail, and after judgment by the plaintiff acknowledging satisfaction on the record, on the payment of the money into court. (lb., 297). Nobody thought of appealing to the statute of Anne as suspending the statute of James, where there were absent defendants, until the passage of the before-mentioned act of 3d and 4th William IV., § 8, abolishing pleas in abatement, prevented a defendant from taking advantage of the non-joinder of a co-contractor. Then the idea seems to have arisen that the statute of Anne was meant to supersede the necessity of outlawry; and inability to plead in abatement made joint contracts several also. So that, where the suit was against an absent defendant who returned, he could no longer plead a resident defendant who might have been sued; and, where against a resident defendant, in answer to his plea of the act, it was replied that it would deprive a plaintiff of his complete remedy if it were allowed, that proceedings in outlawry had been superseded by the statute of Anne, which was intended to give a plaintiff a better remedy than he had theretofore. But the result of the decisions of Fannin v. Anderson and Towns v. Meade never could have been reached if pleas in abatement had not been abolished, and the theory adopted of the supersedure of proceedings in outlawry. I have thus attempted to account for the decisions relied upon by the plaintiff in his argument upon the demurrer.
But, in this State, the statute of Anne never had force; and, as I have pointed out, our colonial acts of limitation, and those passed since 1776, do not follow its language. The words "or any of them," whether applicable to actions or persons, are not to be found in them; and, as there is no rule, or principle of construction, which supplies such language in the case of actions ex contractu against joint contractors, we should not be justified in reading our statute as containing them. The proper interpretation of our act would seem to be the opposite of that given by the English courts to that of Anne, and requires us to hold *Page 553 that the former is not suspended in the case of joint contractors unless all of them are absent from the State at the accrual of the cause. This is, unquestionably, true in the case of written contracts, which with us, when made by more parties than one, are several as well as joint unless otherwise expressed (Rev. Code, 357); and we think in effect true also of verbal contracts as this is; because the plaintiff has, by our statute law, the same remedy, in effect, in cases of absent debtors, as prevailed in England prior to 1705.
By a code of laws published at Hempstead, Long Island, on the 1st of March, 1664, by authority of the Duke of York (who at that time held a grant from his brother King Charles II. of all the territory between the St. Croix River and the eastern side of the Delaware Bay (which was taken to include the settlements or colony on the western side also,) the writ of attachment as well as summons was given to secure the appearance of a defendant to a suit, by the former of which his goods and chattels, lands and tenements were attached. (Duke of York's Laws, 10). Afterwards, on the 20th of May, 1699, under the proprietary government of Penn, and whilst there was one Legislature for the province and these counties, a statute about attachments was passed, by a proviso of which it is declared as follows: "Provided always, that no writs of attachment shall hereafter be granted against any person or persons but such only as at the time of the granting of such writs are not residing within the province or territories, or are about to remove into some other colony or place, or shall refuse to give sufficient security to the plaintiff for the debt or demand." Then follows a clause, that no attachment shall be laid on any lands where there are goods or chattels to be attached, and that the house or plantation shall be the last attached. Immediately after this, the following: "Provided also that after judgment obtained by the plaintiff upon any attachment against non-residents, the plaintiff must, before execution is awarded, find sureties who must undertake for the plaintiff that if the defendant in the attachment shall within a year and a day then following come into court and disprove or avoid the debt recovered by the plaintiff against him, that then *Page 554 the plaintiff shall restore to the defendant the money attached by plaintiff and condemned, or so much thereof as shall be disproved, or else that they shall do it for him." (Ib. Charter and Laws of Penna., 290). This provision obtains, in substance, in this State to-day; but the plaintiff is now not required to give the security until he applies to receive the money raised by the execution issued on the judgment (Rev. Code, 642). Our laws thus furnish a plaintiff with the same remedy in effect that the English creditor had by the process of outlawry before the statute of Anne. This is admitted by the counsel for the plaintiff here. Under both, seizure and sale of goods and chattels could be made, and (here) lands and tenements; though there (where lands could not be sold), an appropriation of their issues could be secured; and upon each of them, writs of fieri facias andcapias ad satisfaciendum could be issued, the same according to our statutes as on other judgments" (1 vol. D. Laws, 467, 468; Hall's Dig., 50, 51; Rev. Code, 642). Outlawry in England, and judgment in foreign attachment here, had, then, the same quality; they could be executed like any judgment, and had the same scope. Having proceeded to outlawry there, the plaintiff then filed his declaration and recovered judgment by due course of law. This was a remedy, therefore, as complete as if all had been actually taken; but there it was attended with great expense and much complication, while here nothing was more simple than the recovery of judgment in foreign attachment; and no proceeding to recover a debt could be more speedy, or attended with less expense. It was the appropriate means to compel the appearance of an absent defendant; or, failing that result, to subject his goods and chattels, lands and tenements to the plaintiff's demand, as much as they would be in a judgment recovered on service of process. The same course of declaring in the suit against all, would be as pointed out in 1 Wils., 78, and by the form laid down in the 10th vol. of Wentworth'sPleadings, at page 384. Everything can be effected under our statute that could have been in England before the statute of Anne, and by much shorter steps. First you sue all parties, and, in the case of the absent defendant, seize his goods and lands with the *Page 555 foreign attachment against him, and then file your narr. according to the form in Wentworth and obtain judgment to be executed against all alike — that in foreign attachment having, by the statute, like process of execution as other judgments (Rev. Code, 642). Our foreign attachment law is founded upon that of the custom of London — the feature of plaintiff giving security before he can appropriate the money raised, and the mode of execution, being the same. They are both in the nature, to the extent of seizure of property in the first instance, of proceedings in rem; but they are more than that, as the ultimate process, awarded to each, shows. Proceedings to outlawry against an absent defendant, when completed, seem to be the same in effect as judgments here in foreign attachment, being equally executable against goods and chattels, and the person also.
Let us consider further the difference between the statute of Anne and the saving in the 14th section of our act of limitations (Rev. Code, 730). As before observed, the words "or any of them" occurring in the former are not found in the latter. They are so important that there seems no risk in saying, the decisions of Fannin v. Anderson and Towns v. Mead would hardly have been made without their being where they are, nor then, with the law unrepealed respecting pleas in abatement — or, rather, I should say, without the act of 3d and 4th W. IV., chap. 42, § 8, abolishing them. I have already pointed out that the statute does not appear ever to have been in force here. We have never been under any other law of limitation than that created by our own statutes, in the colonial times, and since. As, however, they were evidently framed after the models of those of James and Anne, it cannot be unreasonable to infer that where words so important in a saving clause as the words "or any of them" (referring in the statute of Anne, as we cannot doubt, for the reasons above given, to persons and not actions), are left out or omitted, it must have been done by design, and for the purpose in cases here, of preventing a bar to the statute unless all the defendants were out of the State at the accrual of the cause of action, where there were more defendants than one. And we are the more satisfied of this, upon reflecting, that in the times *Page 556 when our acts were passed, the legislative body was always composed of citizens of the best intelligence, several of whom were lawyers of the highest rank in their profession. A consideration of the statutes of those days will satisfy any one that those who passed them were in every respect qualified for their duties. Now it cannot be that the important language referred to, was omitted from the saving with respect to defendants in the limitation acts, except by design. Our legislative bodies do not seem to have had such regard for plaintiffs as it would seem from Fannin v. Anderson was had in England; they doubtless contemplated as well the hardship upon a resident defendant to result from a statute suspending the operation of the section imposing the limitations, until it suited his absent co-defendant to return from out of the State, or he should happen to die. Then it is certainly no greater hardship upon a plaintiff in requiring him to proceed, where one or more of the defendants is in the State, within the statutory time, than upon a resident defendant in holding him liable to an action for three years after the return or death abroad of a co-defendant who left the State before the action accrued. Indeed, it would seem to be less, in view of the fact (not an argument, however, in favor of our construction of the law), that a defendant may be followed into any State of the Union, and sued the same as in this State, and with the same effect — the principle of the common law having universal application in these States. It would be harder that a solvent resident defendant should be liable to be sued at any time during the absence of an insolvent non-resident co-defendant, and three years after his return, upon a claim like this, than that a plaintiff should be obliged to bring his suit (to save his remedy against an absentee debtor), and keep it alive by continuances, where the resident debtor had no property out of which a judgment could be levied. Be that as it may, a plaintiff is no worse off here by our decision on our statute, than he was in England before the statute of Anne, in case a co-debtor or co-defendant was beyond seas at the accrual of the cause of action, and the act of 3d and 4th Will. IV. abolishing pleas in abatement. If our act were like that of Anne, and we had an act similar to that of *Page 557 William, we might feel constrained to follow Fannin v. Anderson and Towns v. Mead. As it is we give our act that interpretation we feel it requires — that it runs in favor of all defendants, in case of a joint contract, when any of them are in the State when the cause of action accrues. We think, therefore, that the replication in this case does not present a sufficient answer to the plea of the Statute.