Marvin v. Bates

• Decision Date: 31 January 1850
• Citation: 13 Mo. 217
• Parties: MARVIN, ADM'R OF BATES, v. BATES.
• Court: Missouri Supreme Court

13 Mo. 217

MARVIN, ADM'R OF BATES,

v.BATES.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO HENRY CIRCUIT COURT.

This was an action of assumpsit brought in the Henry Circuit Court in April, 1848, by Marvin as administrator of Bates against A. W. Bates upon three several promissory notes bearing date October 10th, 1828, payable, one on the first of January, 1831, the second first of January, 1833, and the third, first of January, 1834; for one hundred dollars each. Said notes were executed by the defendant, A. W. Bates, to the plaintiff's intestate. The defendant, at the return term of the writ, filed his plea of the general issue, under and conformable to the statute of 1847. At the trial term, by consent of parties, the cause was submitted to the court for trial without a jury. The plaintiff read to the court the three several notes sued upon as evidence of his debt, and it was agreed by the parties and so submitted to the court, that at the time of the execution of the notes read in evidence, the defendant and plaintiff's intestate, the payee of the note, both resided in the State of Kentucky. That the defendant removed to the State of Missouri in the fall of the year 1828 or 1829, and has continued to reside in this State ever since. That the intestate also resided in the State of Kentucky at the time the notes were executed, also at the time the cause of action accrued upon each note, and continued to reside in the State of Kentucky up to the time of his death; and it was also further agreed that the said intestate, Daniel Bates, never had been in this State from the time the action accrued; and it was also admitted by defendant that the plaintiff in this suit was the administrator of Daniel Bates, deceased. The defendant introduced one B. F Wallace as a witness, who testified that in the year 1835 he was at the house of the plaintiff's intestate in Kentucky, in his life, and that Daniel Bates then said to him that the defendant owed him four hundred dollars, and that if the defendant would pay him one-half, he would forgive the balance. That he did not know that he would push the defendant on the notes, yet, after his death, the notes might fall into the hands of his administrator, and that defendant might be troubled. Witness further stated that defendant started to Kentucky with his family in 1839. This was all the testimony in the cause. The plaintiff thereupon asked the court to declare the law to be in this case: “That if the defendant executed said note in the State of Kentucky, and that the plaintiff's intestate resided in Kentucky at the times said notes fell due, and that the said defendant removed to this State before said notes became due, and has continued to reside in this State ever since, and the plaintiff's intestate, at the time the cause of action accrued on said notes was in, and resided in the State of Kentucky, and continued to reside in said State of Kentucky up to the time of his death, and never came to this State, and that said intestate died some three or four years since; that then these facts are sufficient to take the case out of the statute of limitations, and that defendant cannot set up said statute as a defense or bar to this action.” But the court refused to give this instruction, or so to declare the law to be, to which opinion the plaintiff excepted. Thereupon the defendant asked the following instruction. “That if the notes sued upon have been due for ten years or more before the commencement of this suit, and the defendant has been during all of that time in the State of Missouri, and the plaintiff and intestate all the time knew of his residence, then the defendant is not liable in this action and is entitled to a verdict:” which instruction was given by the court and the plaintiff excepted. The court thereupon found a verdict for the defendant. The plaintiff then filed his motion to set aside the verdict and grant him a new trial; which several motions being overruled by the court, the plaintiff excepted thereto and has brought the case to this court by writ of error

WALLACE, STUART and MILLER, for Plaintiff. The court erred in refusing the instruction asked by the plaintiff as well as in giving that asked by the defendant. The evidence offered by the plaintiff shows an indebtedness to his intestate on the part of the defendant by three several promissory notes, due and payable in 1831, in 1833 and in 1834. That the debt was contracted in Kentucky, and that before the debt became due upon either note, the defendant removed to Missouri, the plaintiff's intestate continuing in Kentucky. The defendant relied upon the statute of limitations, of this State, barring actions of debt or assumpsit upon promissory notes after the lapse of time specified in the statute. The plaintiff contended before the Circuit Court, and so asked the court to declare the law, that if the defendant were all the time resident of Missouri, and the plaintiff a resident of Kentucky, that then the plaintiff's case was brought within the provisions, and exception of the act in favor of persons beyond sea. The instructions asked by the plaintiff and defendant being up again for review as to the proper construction of the terms “““beyond sea,” although the instructions asked and given for defendant go to a greater length.

The question now presented for the consideration of this court has been twice decided by this court. First, in the case of Shreve, Adm'r of Whittlesey, v. Whittlesey, in 7 Mo. R. 475; and again in the case of Bedford v. Bradford, contained in 8 Mo. R. 233; in which latter case the Supreme Court adhere to the former decision, that the term “beyond sea,” in the first section of the statute of limitations of 1825, means out of the State. The counsel for plantiff in error deem these cases as sufficient to determine the question. But should this court review those decisions, we would suggest the decisions of other courts as high authority to sustain the cases referred to. Angell, in his work on Limitations, sustains the decisions of this court. See Angell on Limitations, 219.

Upon the statute of Limitations of the State of Ohio, containing an exception in favor of persons “beyond sea,” at the time the action accrues, the Supreme Court of that State have decided, that those persons without the jurisdiction of the State were “beyond sea,” within the meaning of the act. See the case of Richardson's Adm'r v. Richardson's Adm'r, 6 Ohio R. 60; and in that case the court say the term, “beyond sea,” is borrowed from the act 21st James I., which, in England have been judged to have a meaning synonymous with beyond or out of the realm. They further say, like expressions have been held by the Supreme Court of the United States to be equivalent to “without the limits...