Tagart v. Indiana
| Decision Date | 31 October 1851 |
| Parties | JOHN TAGART, ADMINISTRATOR OF SLONE, v. THE STATE OF INDIANA. |
| Court | Missouri Supreme Court |
APPEAL FROM JEFFERSON CIRCUIT COURT.
FRISSELL, for Appellant. The appellant in this court relies on the statute of limitations: 1. It is insisted, that as to Slone, the statute of limitations commenced running on the 5th of April, 1838, and the statute became a defense after the 5th of April 1848, more than two years before suit was instituted in the County Court of Jefferson county. 2. The payment of interest by the principal in the note, does not affect the rights of the security to plead the statute after the expiration of ten years. 3. Slone left Indiana without fraud or concealment, and with notice to the agent of the plaintiff that he was about to remove, and suit might have been instituted at any time; see Marvin, Adm'r of Bates, v. Bates, 13 Mo. R. 217; Stat. of Mo. Limitations, art. 3, § 8.
BEAL, for Respondent. 1. The statute of limitations affects only those who are within the jurisdiction of the courts of this State. A party, who has never been in the State, cannot claim any of the privileges or immunities of its laws. The rights of a non-resident commence only from the time of making his domicil here. He brings no rights from other States, nor can he claim the benefits arising from the laws of other States. The statute of limitations commences to run in his favor against all debts, &c., from the time of his removal, and will not be a bar until he has resided here five years in case of accounts, and ten years in case of notes, as the case may be. Slone first came to Missouri in March, 1840, and died in the spring of 1849. Suit was instituted on the bond in September, 1849. The statute had not barred the debt by a year. King v. Lane, 7 Mo. R. 241. The time of the limitation depends upon the laws of the country in which the action is brought, and the remedy must be conformable to the lex fori. See 13 East, 439. This case settles the doctrine, that a debt, contracted abroad by non-residents, is not affected by the statute of limitation in the form in which redress is sought. In a late case, 13 Mo. R. 159, this court inclined to that view of the statute of limitations. It would lead to confusion and endless inquiries into the laws of other countries, the distinctions and exceptions arising under the decisions of their courts, if our courts here would be reckless enough to apply the limitations of foreign statutes. So, the only safe rule is to commence to apply the statute from the time the party comes to the State. The statute, under this view, did not commence running in favor of Slone until March, 1840, and would be a bar in March, 1850. 2. The statute of limitations does not run against the State of Indiana, the payee on the bond, unless a State or sovereign power is expressly named in the statute of limitations, it is no bar. 7 Mo. R. 194. At common law, there was no limit to the sovereign power, and, unless a State is expressly named, the common law would exempt a State from the bar. A State has to act by agents. So many changes occur from deaths, removal and political ascendencies, that it would be impossible, many times, to collect State claims, if a rigid rule of limitations were enforced. A State cannot be as vigilant in following up debtors as individuals and it would unjustly fall upon a State from unavoidable necessity. The law, then, cannot operate on claims of this class. 3. The judgment below is for the right party, independent of technical rules of construction. After two respectable courts of the county, where Slone lived for nine years, have decided for the plaintiff, the judgment will not be disturbed. The consideration of the bond was loaned money, and presents the case in a favorable light. Slone was the security, and well knew the nature of his respon sibility that in case of a failure of his principal to pay the bond he would have to pay it. Dixen made payments on the bond of interest and $100 principal, in 1838-39-40 and '41. These facts repel the idea of payment in full as the statutes of limitations raised. Rev. Stat. 1845, p. 721, § 15, art. 3; 3 Blacks. Com. 387; 4 Term R. 468.
This was an action upon a penal bond for six hundred dollars, in favor of the State of Indiana,(a) conditioned for the payment of three hundred dollars on the 6th of April, 1838, by William Dixen, Peter Johnson and John Slone. Dixen appears to be principal, and Johnson and Slone securities. The bond was exhibited for allowance on the 19th day of September, 1849, and was allowed against Slone's estate at the September term, 1850, of the Jefferson County Court. An appeal was taken to the Circuit Court, where judgment was again given against the estate, and the case is now brought before this court by appeal.
The defendant relies upon the statute of limitations. All the interest was paid up to the 11th of April, 1841, and also a part of the principal by Dixen. Upon the facts saved by the record, it appears that Slone left the State of Indiana in March, 1840, in good circumstances, and removed to the State of Missouri; that his removal was open and notorious, and that the agent of the State of Indiana, in making the loan for which the bond in this action was executed, was present when Slone started, and knew where he was going. A motion was made for new trial, on the ground of erroneous instructions given by the court, and because the judgment was contrary to law. This motion was overruled and excepted to. The court tried the cause without a jury. The instruction complained of by the defendant, is in the following words: “That where plaintiff and defendant were non-residents of this State and the time of contracting the debt, and the defendant removes to this State, the statute of limitations does not begin to run in his favor until he comes to this State.”
The question here presented to the court, is the same as that decided by this court in the case of King v. Lane, 7 Mo. R.240.(b) The counsel for the defendant below, appellant here, insists upon a review of that decision, and contends that the clause in our statute of limitations, on which he rests his defense, was not, with due consideration, properly construed by the court. Let us see this clause--Statute of Limitations, art. 2, § 7, Digest of 1835, p. 394: “If at the time when any cause of action, specified in this article, accrues against any person, he be out of this State, such action may be commenced within the times herein respectively limited, after the return of such person into the State,” &c. This provision did not originate in our legislation; a similar one is found in the limitation statute of New York, passed in April, 1801. That section reads thus, “and if any person against whom any cause of any action shall accrue shall be out of this State at the time the same shall accrue, the person who shall be entitled to such action, shall be at liberty to bring the same within the times respectively above limited, after the return of the person so absent into this State.” And New York copied this provision substantially from 4th Anne, ch. 16, § 19, which is as follows: “That if any person or persons against whom there is or shall be any such cause of suit or action (here follows a list of actions which I omit), be, or shall be at the time of any such cause of suit or action, given or accrued, fallen or come, beyond seas, that then such person or persons who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons, after their return from beyond seas; so as they take the same, after their return from beyond seas within such times, as are respectively limited for the bringing of the said actions before by this act,” &c., &c.
The case of Duplien v. De Rouex, which is cited by the court in the case of King v. Lane, was determined by the Lord-keeper at Hilliary term, 1705. In this case the Lord-keeper used the following language: “It is plausible and reasonable that the statute of limitations should not take place, nor the six years be running, until the parties come within the cognizance of the laws of Enland; but that must be left to the Legislature.” In the same year, 1705, the 4th Anne, ch. 16, was passed by the Parliament.
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