It is conceded that the effect of the pleadings is to admit that if Smith had been a sole maker of the note, the plaintiff would have had a good answer to the statute of limitations, on account of his departure from and absence out of the State, and that Hull, if he had been a sole maker, would have had a good defence under the statute, as it did not appear that he had resided out of the State at all. The question, therefore, is, whether the exception, in the statute of limitations, to the effect that if after a cause of action shall have accrued against any person, "such person shall depart from and reside out of the State, the time of absence shall not be deemed or taken as any part of the time limited," c., applies to this case. The precise question was decided against the plaintiff by the late Supreme Court, in Brown v. Delafield (1 Denio, 445). It was there held, that all the persons liable upon a joint contract must depart from the State in order to arrest the running of the statute against the demand.
I have considered with care the ingenious criticism of the plaintiff's counsel upon that case, and have examined the two cases where a different rule, under the exception in the English statute (4 Anne, ch. 16, § 19), has been established in the courts of that country. (Fannin v. Anderson, 7 Q B., 811;Townes v. Mead, 29 Eng. Law Eq., 271.) In a case of admitted doubt, we ought, of course, to follow the judgments of our own courts in preference to cotemporary English decisions, if there were no distinction in the cases. But in England, they have no statute corresponding with our act allowing the creditor to sue and recover a judgment against joint debtors where any of them can be served with *Page 572 process. Here, such a judgment may be obtained; and although it would not relieve the plaintiff from proving the liability of the defendant who had not been found, when he came to sue him on the judgment, it would prevent the statute from attaching if the demand was not barred when the first action was commenced. Besides, there was a doubt upon the statute of Anne, whether it did not read that if the debtors, "or any of them," should be beyond the seas, c., the creditor might sue them after their return. Mr. Justice MAULE, in the Common Pleas, thought it quite manifest that these words applied to the debtors; while the Chief Justice of the Queen's Bench, in his opinion in the other case, considered that they applied to the enumeration of actions. If the former were the true reading, there was, of course, no question in the case. Our statute contains no such language. These distinctions would cause me to hesitate in following the English cases, if the point had not been before the courts of this State; but when we find it adjudged by our highest court of original jurisdiction several years ago, and that judgment apparently acquiesced in to this time, I think we are not authorized to change the rule thus established.
The discharge of Hull in bankruptcy should not have been received; and though admitted in evidence, it cannot be taken into consideration. (Brazill v. Isham, 2 Kern., 9.)
The question arose upon the admissions in the pleadings, and the case could not be changed if there should be another trial. I am obliged, therefore, to dissent from the conclusion to which the court has arrived.
GROVER, J., also dissented.
Judgment reversed. *Page 573