Howell v. Burnett

By the Court. Warner, J. delivering the opinion. The only question made by the record in this case, is whether the note offered in evidence, by the defendant, as a set-off, is barred by the Statute of Limitations. Without expressing any opinion whether non-residents, at the time of the execution of the note, are within the exceptions mentioned in the Statute of Limitations, we are quite clear in our judgment, that this note is barred by the Statute, according to the facts stated in the record. The plaintiff, who was the maker of the note offered as a set-off, resides in the State of Alabama. The defendant became the holder of the note in April, 1845. While the note was in the hands of the original payee, and after it became due, the plaintiff returned to this State the same year, and had returned to this State once or twice every year since, a day or two at a time, so that the original payee and holder of the note, could have sued the plaintiff, had he desired to have done so. The record discloses the fact of the return of the maker of the note, into this State the same year after it became due, and that the holder of the note could have sued him, had he desired to have [305] done so. The Statute commenced to run from the time of the return of the maker of the note into this State, after its maturity, so that he could have been sued upon it. Fowler vs. Hunt, 10 Johns, Rep. 464. Farr vs. Roberdeau’s executor, Cranch’s R. 194. Let the judgment of the Court below be reversed.