Erskine v. Messicar

• Decision Date: 15 April 1873
• Court: Michigan Supreme Court
• Parties: Edward Erskine and another v. John Messicar

27 Mich. 84

Edward Erskine and another v. John Messicar

Supreme Court of Michigan

April 15, 1873

Heard April 12, 1873

Error to St. Clair Circuit.

Judgment affirmed, with costs.

A. E Chadwick, for plaintiffs in error.

O'Brien J. Atkinson, for defendant in error.

OPINION

Campbell J.

The only question in this case is whether a cause of action which accrued in Canada on a promissory note, in May, 1854, in favor of a Canadian resident who has never been within the United States, against persons who then lived in Canada, but had been in Michigan more than ten years before suit brought, is barred.

It is claimed that by section 7 of the statute of limitations all personal actions must be brought within ten years, if the plaintiff has continued abroad.

That section is as follows: "All personal actions on any contract, not limited by the foregoing sections, or by any law of this State, shall be brought within ten years after the accruing of the cause of action, and not afterwards."

The previous sections had limited actions of assumpsit to six years; and section six contains this specific provision concerning foreigners: "If any person entitled to bring any of the actions mentioned in this chapter, shall, at the time when the cause of action accrues, be absent from the United States, such person may bring the action within the times in this chapter respectively limited, after the disability shall be removed."

This is a plain and unequivocal provision, applying as directly to the ten years clause of section 7 as to any other, and declaring in the most express terms that the statute shall not run in case of such a disability. It applies to every action mentioned in the chapter. The subsequent amendments do not reach this case, and their effect need not be considered.

The only case which seems to have raised any doubt upon this subject is Von Hemert v. Porter, 11 Metc. 210. That decision contains the following language concerning a similar section in the Revised Statutes of Massachusetts: "And we think it was also designed to embrace those causes of action founded upon contracts originating abroad, between foreigners and our citizens, and which by their terms were to be performed in the country where contracted, when the foreigner never comes into the State, as being cases not contemplated and embraced or affected by the other provisions of the statute, nor limited by the provisions of...