Tagart v. Indiana

Rylan», J., delivered the opinio»: of the court. This was an action upon a penal bond for six hundred’ dollars, in favor of the State of Indiana, conditioned for the payment of three hundred dollars on the 6th of April 1838, by William Dixen, Peter Johnson and John Slone. Dixen appears to be principal and Johnson and Slone securities. The bond was exhibited for allowance on the 19th day of September 1849, and was allowed against Slone’s estate at the September term 1850, of the Jefferson county court. An appeal was taken to the circuit court, where judgment was again given against the estate, and the caséis now brought before this court by appeal. The defendant relies upon the statute of limitations. All the interest was paid up to the 11th of April, 1841, and also a part of the principal by Dixon. Upon the facts saved by the record, it appears that Slone left the State of Indiana in March 1840, in good circumstances, and removed to the State-of Missouri; that his removal was open, and notorious, and that the agent of the State of Indiana^ fe making the-loan for which the bond in this action was executed^. V(.aa presentí when Slone started,.and knew where he was going,. A. motion was made for new trial;, qp the. ground' ©f erroneous instructions-gj,ven-by the court, and ke.caú¡s,e the judgment was contrary to law. This motion was overruled* a»d e^ceptedi fo.. The court tried [212] the cause without a jury. The instruction complained of by the defendant, is in the following words : “That where plaintiff and defendant were non-residents of this State at the time of contracting the debt, and the defendant removes to this State, the statute of limitations does not begin to run in his favor until he comes to tiiis State.” The question here presented to the court, is the same as that decided by this court in the case of King vs. Lane, 7 Mo. Rep. 240. The counsel for the defendant below, appellant here, insists upon a review of that decision, and contends that the clause in our statute of limitations, on which he rests his defeuce, was not with due consideration, properly construed by the court. Let us see this clause — Statute of limitations, art. II, sec. 7, Digest of 1&35, page 394. “If at the time when any cause of action, specified in this article, accrues against any person, he be out of this State, such action may be commenced within the times herein respectively limited, after the return of such person into the Stale, &e.” This provision did not originate in our legislation; a similar one is found in the limitation statute of New York, passed in April, 1801. That section roads thus, “and if any person against whom any cause of any action shall accrue shall be out of this State at the time the same shall accrue, the person who shall be entitled to such action, shall be at liberty to bring the same within the times respectively above limited, after the return of the person so absent into ibis State.” And New York copied this provision substantially from 4th Ann. Chap. 16, section 19, which is as follows: “That if any person or persons against whom there is or shall be any such cause of suit or action, (here follows a list of actions which I omit) be, or shall be at the time of any such cause of suit or action, given or accrued, fallen or come, beyond seas, that then such person or persons who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons, after their return from beyond seas; so as they take the same, after their return from beyond seas within such times, as are respectively limited for the bringing of the said actions before by this aGt, &p., &c. The case of Duplien vs. De Rouex, which is cited by the court in the ease of King vs. Lane, was determined by the Lord keeper at Hill/ary term, 1705. In this case the Lord keeper used the following language: “It is plausible and reasonable that the statute of limitations should not take place, nor the six years be running, until the parties come within the cognizance of the laws of England; but that must be left to the le [213] gislature.”^ In the same years, 1705rthe 4th Ann. Chap. 16, was-passed by the parliament. The case of Ruggles vs. Keeler was decided in 1808. In this case, Kent, Ch. Just, says: “But a proviso in the. statute of Ann, and which •we have adopted in our act of limitations, saves the operation of the statute if the party shall be font of the State5 at the lime the cause of action arises against him, and the statute does not begin to-run'until after the return of the defendant.” Whether the defendant be a resident of this State, and only absent for a time, or whether he relides altogether out of this State, is immaterial. He is equally within the proviso. If the causes of action arose out of the State, it is sufficient to save the statute from running in favor of the party to be charged until he coinés within our jurisdiction. This lias been the uniform construction of the English statutes, which also speak cf tho “return” of the party so absent from beyond seas. The word “return” has never been construed to confine the proviso to Englishmen, who went abroad occasionally. The exception 1ms been considered as o-enerai, and extending equally to foreigners, who always reside abroad.” In the case of Tupper vs. Nash, 1 Caine’s cases 402, the'supreme court of New York decided, that they were bound to confine themselves to their own statute of limitations, and could not regard that of aiiy ether State. “Statutes of limitation (said the court) are municipal regulations, founded on local policy, which have coercive author-it-abroad, and with which foreign or independent governments have no concern.” In the case of Dwight, adm’r. vs. Clark, 7 Mass. Rep. 515, the action was on several promissory notes; the defendant plead non-assumpsit infra sex annos. ^ The replication alleges, in substance, that at the-time the cause of action accrued, the defendant was without the limits of this commonwealth; that he had left therein no property or estate that could by ordinary process of law be attached; and that be did not return into the commonwealth until six years befor the commencement of this action. The rejoinder alleges, in substance, that the defendant did not return into the commonwealth, not having been an inhabitant thereof, but an inhabitant of another State: To this there was a general demurrer and joinder thereto. The question is, whether the period of limitation commenced previous to the defendant’s cominointo the State. The court say, “we all think the case comes dearly within the exception; the replication states the very case, in all its parts, expressed in the act toi constitute an exception. The defendant was without the limits of the commonwealth: nor did he leave any pro [214] perty within it, that could be attached. But it is said that by the words “leave” and “return” used in the act, it is evident, that the legislature intended to confine the exception to the inhabitants of the commonwealth. We all, however, think it a much more reasonable construction, that the exception was intended as general, and comprehending all persons who are without the, commonwealth and have not attachable property within it, so that the statute shall not begin to run until the defendant is either by his property or his person subject to original process. This statute oí Massachusetts is much stronger in favor of the views of .the appellant’s counsel in the case before us than our act of 1835. Here > is not only the word “return” into the commonwealth, but the words “leave property, -&c.,” a much stronger expression to include the idea of inhabitation, removing or going out of and returning again into the commonwealth. Yet the court" upon solemn'agreement adjudge the proviso to have a general meaning and extent to all persons non-residents of the commonwealth, and who have no attachable property therein. In the case of Tisson vs. Bicknell, 6 New Hampshire, 557, the construction of the statute of limitations of the State of New Hampshire came before the supreme court of that State. The third section of that act declares, “that if at the time the cause of action occured or afterwards, the defendant resided without the limits of the State and did not leave property or estate therein, that could by the common and ordinary process of law be attached, the plaintiff shall be at liberty to commence his action, within six years after the cause of action, exclusive of the time during which the defendant shall have resided without the limits of the ‘State as aforesaid;” Richardson, Ch. Jus., in delivering the opinion of the court, said: “But it is contended, that as the defendant was never an inhabitant of this State, the case is not within the third section of the statute. It is argued that the statute embraces only inhabitants of this State, who have gone abroad, and left no property, that could be attached. The statute speaks of their leaving property, which certainly gives some countenance to the supposition, that the ease of inhabitants leaving the State was in the immediate contemplation of those who made the act. But that circumstance is much too slight to sustain a construction so narrow as that for which the defendant’s counsel contends. Upon a similar exception in the statute of Massachusetts it has been decided, that the exception embraces those who were never resident in the commonwealth,” and refers to the case of Dwight, adm’r vs. Clark, above cited in this opinion, and to 11 Pick. 39. [215] This decision is in strict accordance with other decisions in analagous cases; 17 Mass. Rep. 180; Wilson vs. Appleton, 14 Mass. Rep. 203; Hall vs. Little, 3 Wilson 145; 2 W. Blacks. 723; 10 Johns. 465. These decisions of the courts of England, Massachusetts, New York, and New Hampshire, upon statutes similar to ours, (and, indeed, some of the statutes holding out the idea of inhabitancey, much stronger than ©urs) have, and I think deserve to have the weighty consideration of t-his court upon the question before us. I do not feel authorized or disposed to overturn a former decision of this court, supported, as it is, by such authority. The statutes of limitations of other States, will not be enforced here; our own statute must govern. See 3 Conn. R. 472; Medbury vs. Hopkins, 4 Conn. 47; Atwater’s adm’r vs. Townsend, 3 Johns Chan. Rep. 97; Deconche vs. Savetier, 1 Gallison’s Rep. 376; 2 Mass. Rep. 84; 17 Mass. Rep. 55; 1 Harris and Johns. Rep. 453; 4 Cow. 508 Andrews and Jerome vs. Heriot. From a review of many cases upon this subject, I am unwilling now to overturn the construction of the statutes of limitations as given by the court in the case of King vs. Lane. The case of Marvin, adm’r vs. Bates in 13 Mo. R. does ¡not conflict with this view. Another and different subject matter was before the court in that case. The statute of limitations did not, from the facts in this case, afford the defendant below a bar to the plaintiff’s action. Sufficient time had not elapsed since tbe defendant’s removal to Missouri. I find no error in the instruction complained of by the defendant below. The other judges concurring, the judgment below will be affirmed.