Thibodeau v. Levassuer , 36 Me. 362 ( 1853 )

Tenney, J. —

The place where the note was made and where the parties thereto resided, at its date was subject to the jurisdiction of the Province of New Brunswick. By the laws of that Province a suit thereon would have been barred by the statute of limitations in six years, after the cause of action accrued, notwithstanding the note was signed in the presence of a witness, who attested it. It is admitted that more than six years had elapsed after the maturity of the note and the date of the last payment thereon, before the commencement of this suit. The defendant relies upon the same defence here, which would there have prevailed. The question presented is, can the plaintiff recover under these facts and the statute of limitations ? We think he can. R. S., c. 146, § 7.

The time of limitations of actions, depends on the lex fori, and not on the lex loci contractus. The case of Pearsall & al. v. Dwight & al. 2 Mass. 84, was a suit upon a promissory note, and the question discussed and decided in the negative was, whether to an action commenced in a Court in Massachusetts, by the plaintiffs, inhabitants of New York, on the note there executed by the defendants, inhabitants of Massachusetts, the statute of limitations of the State of New York can be pleaded in bar. Parsons, C. J., in the opinion of the Court, says, — “ The law of the State of New York will be adopted by the Court, in deciding on the nature, validity and construction of this contract. This we are obliged to do by our laws. So far the obligation of comity extends, but it extends' no further. The form of the action, the course of judicial proceedings, and the time when the action maybe commenced, must be directed exclusively by the laws of this Commonwealth.”

In Bulger v. Roche, 11 Pick. 36, the same doctrine was affirmed in a suit upon a note, which was made in Halifax, in the Province of Nova Scotia, between subjects of that Province, who remained there tilL it was barred by the statute of limitations of that country. It was held, that the statute of limitations of Massachusetts could not be pleaded in bar to art action brought upon the debt within six years after the, parties came into that Commonwealth. The subject is very fully discussed in the case of Le Roy & al. v. Crowninshield, 2 Mason, 151, where the authorities are collected and commented upon ; and it was there held, that the plea of the statute of limitations of the State where a contract is made, is no bar to a suit, in a foreign tribunal, to enforce that contract; and the question was treated as one entirely at rest. Judge Stout, in his Commentaries on the “ Conflict of Laws,” § 581, says, “ the common law has firmly fixed its own doctrine, that the prescription of the lex fori must prevail in all cases.” British Linen Company v. Drummond, 10 Barn. & Cres. 903 ; Vega v. Vianna, 1 Barn. & Adol. 284; Lincope v. Battelle, 6 Wend. 475. Judgment for the plaintiff.

Shepley, C. J., and Howard, Rice and Hathaway, J. J., concurred.