Paine v. Drew , 44 N.H. 306 ( 1860 )

Sargent, J.

The statute of limitations known as the 21st James I., ch. 16, passed in 1623, and which was in fact in amendment .of and in addition to the statute 32 Henry VHI, ch. 2, passed in 1540, has, among others, the following provision, that if any person, being entitled to any such action, &c., shall be, at the time any such cause of action accrued, “beyond the seas,” then such person shall be at liberty to bring such action within such times as are before limited, after his return from beyond the seas. This statute contained no exception applicable to debtors “ beyond seas,” but only in relation to creditors. But by the statute 4 Anne, ch. 16, the same provisions were made to apply to the defendant if he was “ beyond seas,” namely, that he might, on his return to England, be sued within the times limited by the statute. And the word return in both these statutes was held to include alike the arrival in England of a foreigner who had never been there before, and of a citizen returning from an absence abroad. Duplien v. DeRoven, 2 Vt. 540; Strithorst v. Greame, 2 W. Black. 723; Williams v. Jones, 13 East 448; King v. Walker, 1 W. Black. 286; Lafonde v. Ruddock, 24 E. L. & E. 239; Buckmaboye v. Mattichund, 32 E. L. & E. 84, which is a case in point.

Statutes of limitation have been passed in the several States of the United States, in many of which the term “ beyond seas” has been retained, and it has been held that the term is here equivalent to “ out of the State.” Murray v. Baker, 3 Wheat. 541; Bank of Alexandria v. Dyer, 14 Pet. 141. So in most of the State courts. Ang. on Lim. 210, and cases cited. It is so held in this State; Galusha v. Cobleigh, 13 N. H. 79; though in Pennsylvania it is held to mean out of the limits of the United States. Ward v. Hallam, 1 Yeates 329; Thurston v. Davies, 9 Serg. & R. 285.

The statutes of the States have included in almost every instance some provision that where persons are absent from the State when the cause of action accrued, or afterward, the statute shall not run during such absence, or until such persons return, or unless they leave property in the State; yet it has been held almost uniformly that these words, absence, return, leaving property, &c., are not confined in their application to those who have once been inhabitants, but are equally applicable to those who have never before been in the State ; to foreigners as well as to citizens. It has been so decided in Massachusetts. Bulger v. Roche, 11 Pick. 138 ; Whitney v. Goddard, 20 Pick. 310; Von Homert v. Porter, 11 Met. 210; Brigham v. Bigelow, 12 Met. 270; Putnam v. Dyke, 13 Gray 535. So in New-York: Ruggles v. Keeler, 3 Johns. 263, and cases cited; Cole v. Jessup, 2 Barb. 309; Carpenter v. Wells, 21 Barb. 593. So in Vermont: Dunning v. Chamberlain, 6 Vt. 127; Graves v. Weeks, 19 Vt. 178. And in Connecticut: Hatch v. Spofford, 24 Conn. 432. And in Maine: McMillan v. Wood, 29 Me. 217; Tribodeau v. Levasseur, 36 Me. 362. And in Rhode-Island : Crocker v. Arey, 3 R.I.178. So in Alabama: State Bank v. Seawell, 18 Ala. 616 ; Thompson v. Odum, 23 Ala. 480. And in Arkansas: Wakefield v. Smart, 3 Eng. 488; Field v. Dickinson, 3 Pike 409. And in Mississippi; Estes v. Rawlin, 5 How. 258. And in Missouri: King v. Lane, 7 Mo. 241; Bedford v. Bradford, 8 Mo. 233. And in Pennsylvania: Mullen v. Ridgeway, Addison 278. And in Ohio, until the Legislature, in 1830, enacted that contracts made by non-residents, and barred by the laws of the State where they were made, should be barred in Ohio. North v. Wilson, Wright 152.

In some of the States beside Ohio, we understand that the legislatures have interfered to limit the exception to the statute to residents or those who have once been residents; but we have been unable to find any case where the courts have construed the general law, in the absence of express legislation, in accordance with the defendant’s views, except in the States of New-Jersey and Texas, in the cases cited in the defendant’s brief. It may be a proper matter of legislation, but we regard those decisions relied on by the defendant as in conflict with the great weight of authority, both in England and in America, upon that subject.

It was held in Graves v. Strong, in Vermont, that the tenth section of their statute of limitations, of 1797, providing that in case the defendant, at the time the cause of action accrued, was without the State, the suit might be commenced within six years after his return into the State, extends to a ease where both parties are resident citizens of another State, and the debtor was in that State only for a temporary purpose at the time the writ was served ; and that such action would be sustained, although the cause of action might have been barred at the commencement of the suit, by the statute of limitations of the State of which both parties were then resident citizens.

To the same effect was the decision in Massachusetts, Bulger v. Roche; and by the more recent case in that State, Putnam v. Dyke, it was held that the statute of limitations of that State was no bar to an action brought there on a debt contracted in Vermont more than forty years before. And both parties had lived in Vermont during that period of time, and of course the statute of limitations of Vermont could not be pleaded in Massachusetts.

Ruggles v. Keeler and Carpenter v. Wells, in New-York, are to the same effect; and in Connecticut, the more recent case of Hatch v. Spofford, where the same positions were argued that are here taken by the defendant; and where the statute, like our own, makes no provision for the absence of the plaintiff, decides that the exception in their statutes in favor of debtors who are without the State, is applicable where the cause of action arose in another State, within which both parties then resided, and so continued to reside until after such action was brought.

To be sure, the words used in the exception in the statute of Connecticut are not precisely the same as those used in the exception to our own, but the object to be attained was evidently the same. "We have the proper rule of construction to apply to these statutes of limitation, laid down in Angelí on Limitations 17, where, in speaking of the statute of James, as modified by that of Anne, it is said : “ "Where any difference appears between the provisions of that statute in respect to personal actions, and those of the American statutes of limitation, it is, it will be seen, more in words than in substance — tbe end of one and all of them being one and tbe same. If the periods of limitation be different in different countries or States, and in different actions, yet the statutes are drawn with slight variations of phrase, and all being in pari materia, the object and intention being the same, they require a uniform construction. The American acts of limitations, as they relate to personal actions of every kind, are either an exact transcript of James, or a revision or modification of it; and that the mere change of phraseology in the revision of a statute before in force, will not work an alteration in the law previously declared, unless it indisputably appear that such was the intention of the legislature, has been expressly decided;” and he cites as authorities, Cook v. Wood, 1 McCord (S. C.) 141; Murray v. East-India Co., 5 B. & Ald. 204; Taylor v. Delancy, 2 Caines Cas. Er. 143; Yates’ Case, 4 Johns. 317, 359; Matter of Brown, 21 Wend. 316 ; Theriat v. Hart, 2 Hill 380. Now it would ^eem that the courts of New-Jersey, and of Texas, instead of following this reasonable rule of construction, have, by putting, if not a forced at least a fanciful construction upon the words of their statute, undertaken to make a broad distinction, where it seems to us there is no real difference.

We consider this question as already settled in this State. In Sissons v. Bicknell, 6 N. H. 558, Richardson, C. J., says: “ 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 case of inhabitants leaving the State was in the immediate contemplation of those who made the act. 33ut that circumstance is much too slight to sustain a construction so narrow as that for which the defendant’s counsel contends.” And it is expressly held in that case, that that section of the statute of limitations which provided that when the defendant has resided out of the State, and not left property within thé State that might have been attached, the plaintiff’ shall have six years to commence his action, exclusive of the time the defendant has been thus out of the State, applies to defendants who have never been inhabitants of this State, as well as to those who have once been citizens. The same section of the same statute was held to apply to the defendant, in Dow v. Sayward, 12 N. H. 271, where the case finds that the defendant had never been an inhabitant of this State, but had always resided in the State of Maine, and did so at the time of the suit; and this holding is affirmed in S. C., 14 N. H. 9.

The expression in regard to leaving property, &c., which was contained in the statute then in force, implied that the person to whom it referred must once have been an inhabitant of this State, much more strongly than those do which are contained in our statute at the present time, if we were called upon to go into any critical examination of the derivation and exact meaning of words and phrases. Our present statute, after providing that all personal actions, with certain specified exceptions, shall be brought within six years after the cause of action accrued, and not afterward, farther provides, that “ if the defendant, at the time the cause of action accrued, or afterward, 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, sec. 9 ; Comp. Stat. 461.

The counsel for the defendant claims that the words “ absent from and residing out of the State” can be applied properly to those and those only who have formerly lived in the State, and had removed or absented themselves from' it. No such construction can, however, be put on the words “residing out of the State,” because that expression applies equally well to those "who never lived in the State as to those who have. But the words “ absent from,”'it is said, can only apply properly to those who have been residents. The word “ absent,” when used as a verb, as in the sentence “ to absent himself,” implies prior presence. So the word “ absentee” means one who withdraws or has removed from his country, State, or home. But the word “ absence,” though primarily it may have supposed prior presence, yet, in common usage, simply means a state of being away from or at a distance from, not in company with. And the word “ absent,” when used as an adjective in common and ordinary use, simply means, not present, and refers only to the condition or situation of the person or thing spoken of at the time of speaking, without any allusion or reference to any prior situation or condition of the same person or thing; so that there is really nothing in the words used in our present statute that is more favorable to the construction claimed by the defendant, than that which has almost uniformly been given to similar statutes every where. But that is not all.

The doctrine contended for by the defendant would carry him too far. Suppose a farmer of New-Hampshire sells a thousand dollars’ worth of provisions to a man in Boston, and takes his note. The debtor becomes embarrassed, or from some cause the creditor does not wish to go to Massachusetts to commence a suit until the six years have expired which will bar the action there. But during this time the debtor is careful not to come into this State; but after the expiration of six years he comes into New-Hampshire, and has property here liable to attachment, and the creditor brings his suit here. The defendant pleads the statute of limitations. The plaintiff replies that this statute does not apply, because the defendant, during all the time since the note was given, has been absent from and resided out of this State. The defendant rejoins that although he has resided in Massachusetts, as alleged, yet he has not been absent from New-Hampshire, because he never resided in this State. Now if the defendant’s position in the case at bar be correct, that would be a good rejoinder, and that defendant would be discharged.

The statute was not intended to have any such effect. There can be no good reason why a citizen of this State should be barred in his action against a resident of another State, if he can find him in this State, who has not paid his debts, as he promised to do, and as it was his duty to do ; and-why he may not properly, if the statute of limitation be pleaded, reply, that he- should not be barred because tbe defendant has been absent from and residing out of this State; or why there should be any difference, in such a ease, between a defendant who has always lived in Massachusetts and one who may have some time resided in this State, but has, years ago, removed to that State for a permanent residence. It was the duty of a debtor to go to his creditor and pay his debt, and the creditor should not be compelled to go to a foreign jurisdiction to seek his remedy, if he can find any proper way of pursuing it at home.

Our statute has no exception excluding from computation the time of absence of the plaintiff, nor does such a provision seem necessary, since the plaintiff’s absence does not prevent him from bringing luís suit at any time when he can find the defendant within our jurisdiction, or his property here; for he 'may sue here let his domicil be where it may. The statute of James and of Anne have no necessary connection with each other, but are independent and distinct. Where both the statute of James and of Anne are in force, the statute of limitations does xxot run when either party is absent. But where the statute like ours only provides for the absence of the defendant, there caxx be no reasoxx why all should not be entitled to the benefit of his absence, who vrould be barred of their action by reason of his absence, and that would be as well the absent plaintiff as the one who was present. Where the plaintiff’ is a citizen of this State it makes xxo diff’erexxce whether he be present or absent. His presence or his absence has nothing to do with the statute of limitations; whether that shall run against the claim, or not, depends entirely on the presence or absence of the defendant, and it is the same with the non-resident plaintiff.

Any foreigner who is not an alien enemy may sue and be sued ixx our counts, although neither plaintiff nor defendant were ever in the State before; and much more is this true of a plaintiff residing in a neighboring State, by reason of the provision of the coixstitution of the United States (art. 4, sec, 2), which provides “ that the citizens of each State shall be entitled to all privileges and immunities of the citizens of the several States.” ' Nor does the fact that the cause of action originated or accrued in Maine or Massachusetts affect the case. The action is traxxsitoxy, following the debtor wherever he goes. It is elementary law that the creditor may pursue his debtor into and through every. State and every country, and sue him wherever his person or his property may be found. Hatch v. Spofford, supra, and eases cited. Debitum et contractus sunt nullius loci. Broom Legal Max. 414, note; March v. Eastern Railroad, 40 N. H. 574, and authorities.

The objection that our courts will be crowded with suits upon stale claims from abroad, to the exclusion or interruption of their legitimate business, is purely imaginary. The fact that this questioxx is now directly raised, as the defendant claims, for the first time in this State, is a sufficient answer to that objection. But however that may be, until our international law shall be changed, and especially until the constitution of the United States be altered, we must continue to yield to the citizens of other countries, and particularly to those of our sister States, what we are exacting from their courts in behalf of our own people. It is a liberty which may be abused, but still it can not be denied without endangering and embarrassing our commercial intercourse, and interfering with the constitutional rights of citizens of the republic.

The leading case in New-Jersey which holds a different doctrine is Beardsley v. Southmayd, 3 Green 170, and was the opinion of a divided court; and in a latpr case in that State, Howe v. Lawrence, 1 Zab. 740, the same court was divided — three of the eight judges being in favor of overruling the decision in Beardsley v. Southmayd, as being contrary both to reason and to authority; while the majority sustained that decision mainly upon the ground that the law, having been once settled, it was better to adhere to that decision than to change the rule, whatever may have been the merits of the original controversy. They do also, by way of inducement, allude to the danger of their courts being made “ an avenue for the litigation of antiquated claims.” But for the reasons we have stated we think that position had little weight.