Gilman v. Cutts

Eastman, J. A difference exists between the statute of limitations in force at the time the note in suit was made, and that in force when the action was commenced. Under the former statute, a residence out of the State did not prevent the statute from running, if the defendant left property attachable in the State. In the present statute the provision in regard to leaving property in the State, is not embraced; so that residence out of the State prevents the statute from running, whether property be left or not. Upon general principles, the law of the country where the contract is made or is to be performed, furnishes the rules for expounding the nature, and extent of its obligations. But the law of the country where it is sought to enforce the performance of a contract, governs all questions of remedy. The forms of remedies, the modes of proceeding, and the executions of judgments, are to be regulated solely and exclusively by the laws of the place where the action is instituted. Whatever belongs to the remedy, is governed by the law of the place where the remedy is sought. This principle applies to time as well as place. The statute of limitations which is to control, is that which is in force at the time and place, when and where the remedy is brought. Such are the general principles. Ferguson v. Fyffe, 8 Clarke & Finelly’s (Parliamentary) Rep., 121; Bulger v. Roche, 11 Pick. Rep., 36; Carnigie v. Morrison, 2 Met. Rep., 281; Medbury v. Hopkins, 3 Conn. Rep., 472; Ruggles v. Keeler, 3 [382] Johns. Rep., 261; Harper v. Hampton, 1 Harr, & Johns. Rep., 453 ; Van Reymsdyk v. Kane, 1 Grallison’s Rep., 371. The principle is not varied if the contract was made in the same jurisdiction where the action is brought. If no vested right is taken away, the law in force at the time the remedy is sought, is the one to govern. A new statute is not retrospective if the right which is to be affected by it has not become vested 5 otherwise, if it has. Patterson v. Gaines & ux., 6 Howard’s (U. S.) Rep., 550; Brigham v. Bigelow, 12 Met. Rep., 171; Woart v. Winnick, 3 N. H. Rep., 473 ; Willard v. Clarke, 7 Met. Rep., 435; Bickford v. Boston & Lowell R. R., 21 Pick. Rep., 109; Gaskins v. The Commonwealth, 1 Call’s Rep., 168 ; Clarke v. Clarke, 10 N. H. Rep., 386. The note in suit was not barred at the time the new statute went into operation. The rights under it had not become fixed and the new statute therefore must govern. No rights are impaired by such a construction, and the ruling of the court in this respect was correct. Upon the second question raised in the case, the instructions of the court proceed upon the ground, that the absence from the State must be an actual, substantial, legal change qf residence, in order to prevent the statute from running ; that no temporary absence can be deducted from the six years. The statute is as follows: “ If the defendant at the time the cause of action accrued, or afterwards, was absent from and residing out of the State, the time of such absence shall be excluded in the computation of the several times before limited for the commencement of personal actions.” Rev. Stat., ch. 181, § 9. These provisions are comparatively new. Under the English statute of limitations and those that existed in this country until somewhat recently, when once the statute commenced to run, no subsequent disability affected it. Jackson v. Livingston, 15 Johns. Rep., 169 ; Dow v. Warren, 6 Mass. Rep., 328 ; Catterel v. Dutton, 4 Taunton, 828 ; Walden v. The Heirs of Gratz, 1 Wheaton’s Rep., 296; Hall v. Vandergrift, 3 Binney’s Rep., 374; Didier v. Davison, 2 Barbour’s Ch. Rep., 486 ; Randall v. Wilkins, 4 Denio’s Rep., 577; Doe v. Jones, 4 Term Rep., 300. [383] The legislatures of several of our States have, however, interfered and in effect declared, that the time during which a party is absent from, and residing out of the State, shall not be deducted from the time of limitation; that during the absence the statute shall cease to run. Statutes similar to our own have been passed, and in a few jurisdictions have undergone, to some extent, a judicial construction. In New-York, it has been held, in the supreme court of one of their districts, that successive absences cannot bo accumulated, and the aggregate deducted from the time elapsed after the accruing of the action ; that after a single departure and return, the statute will run, notwithstanding any subsequent departure. Cole v. Jessup, 2 Barbour’s Sup. Court Rep., 309. A similar construction was given to the same statute by the United States circuit court for New-York, in 1846, in Door & al. v. Swarthout, New-York Legal Observer, 172. The ruling in the last case, was made after some hesitancy. The decisions appear to have gone upon the ground that the legislature intended to provide for but one absence; and that with respect to departures and returns after the first, actions would stand upon the same footing with analogous cases prior to the passage of the statute. Nothing is suggested in the course of the opinions given, which would tend to show that a temporary absence was not as effectual to prevent the statute from running, as a permanent one. The words of the New-York statute applicable to this precise point, are, “ shall depart from and reside out of this State,” and yet the court in both of the cases speak of them as absences. In the one case the marginal note is,cc the statute of limitations ceases to operate only during the period of one service; ” in the other it is, “ the statute provides only for a single departure and return.” In Smith v. Heirs of Bond, 8 Ala. Rep., 386, it was held, that to complete the bar of the statute, the debtor must have been within the State subject to its process, during the entire period provided as a bar; but such period of time need not be continuous, but may be composed of different periods of time. The court say: u Our opinion therefore, is, that to make the bar of the statute effectual, the debtor must have been within the [384] State, subject to be sued, during the whole period provided as a bar, but it is not necessary that it should be continuous ; it may be composed of different periods of time, if the aggregate makes the period of time which is designated as a bar.” In Vanlandingham v. Huston, 4 Gilman’s (Ill.) Rep., 125, it was decided,, that if a party be out of the State, so that process cannot be served on him, the statute of limitations ceases to run for the-time being; and in such case it is not necessary in order to produce this result, that the party should remove absolutely; that every absence from the State, whether there exists in the debt- or the animus revertendi or not, suspends the operation of the statute. The case of Chenot v. Lefevre, 8 Gilman’s Rep., 637, is to the same effect. These are all the authorities that we have been able to find, where the question has been mooted. The statutes in those States where the last decisions cited have been made, differ from ours in phraseology, and perhaps would justify a somewhat different construction; but their object is evidently the same as that of ours. The several cases- which we have cited, bearing upon this question, are all in conflict with the ruling in the case before us. The Alabama and Hlinois decisions differ from those made upon the New-York statute, but they all appear to agree that temporary absence is sufficient to stop the statute from running. And we think such must have been the intention of our legislature in the enactment of our statute. The ' terms “ absent from, and residing out of the State,” could not have been intended to mean only a legal removal from the State. Such a construction would be too limited, and would, we apprehend, defeat to a considerable extent, the object of the statute. The effect too, would be to enable a debtor to avoid entirely the payment of a note. He might be a man without family, and, without the knowledge of his creditor, might leave the State, on business or pleasure, and go to Europe, or some distant part of our own country, with the positive intention of returning at the expiration of six years, and actually return at that time; and yet, if such temporary absence is not' to prevent the statute from running, and is not to be deducted from the computation of the time limited for the commencement . of the action, the debt is legally lost. [385] We think also, that the legislature did not intend that the statute should be suspended in its operation during one absence only. The tendency of the legislation in this State, upon the subject, has been to enlarge rather than curtail the exception to the original English statute. Thus in the last revision, the clause existing in the former statute, providing that if the debtor left attachable property in the State, the statute would continue to run, was omitted. And to hold that the statute ceases to operate only during the period of one absence, would be to place upon it a straitened construction which, we think, was not the intention. The conclusion, then, to which the court have arrived, is that any and every absence, whether temporary or otherwise, which is such that the creditor cannot, during the same, make a legal service upon the debtor, must be reckoned; that the intention of the legislature was, that all such absences should be considered; that the statute does not confine it to one absence simply, but all must be taken together, in computing the time to be deducted, from that between the maturity of the note, and the commencement of the suit. The verdict must therefore be set aside, and a New trial granted.