Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818 Written: June 1818. 
Transcribed by MSGenWeb, Jan 2006

Sealed instruments in this state are not barred by the statute of limitations, under sixteen years.
The provision of the statue of limitations, which declares, that where the defendant shall be out of the state, at the time the cause of action accrued, or any time during which a suit might be sustained, the plaintiff may bring the same after defendant's return to the state, and the time of such absence shall not be taken as a part of the time limited by the act, applies as well to those who have not been in the state at all, as to those who left before the cause of action accrued.

    ERROR to the circuit court of Rankin county.

    In the court below, the defendant in error declared upon a bill single dated the 9th day of April, 1819, due one day after date.

    The plaintiff in error plead two pleas. First, payment after due, and concluded to the country. To this plea the defendant in error demurred, and for cause of error assigned that the plea concluded to the country, instead of with a verification. Second plea, that the defendant in error did not commence his suit within sixteen years next after the cause of action accrued. Replication, that the plaintiff at the date of the bill of exchange, was a citizen and resident of the state of Virginia, and absent from the state of Mississippi, and that he did not come to the state of Mississippi until the year 1838, which was his first coming into the said state of Mississippi.To this replication there was a general demurrer. The demurrer was overruled, and the plaintiff declined to rejoin, whereupon there was a judgment for defendant, &c., upon which a writ of error was taken.

    Mayes, for plaintiff in error.

    The replication is framed with a view to bring the case within the twelfth section of the statute of limitations. It is not within the letter of that statute, and it is with due deference to judges who have held the contrary, not within any reasonable interpretation of that section. The section speaks of persons absent from the state, when the cause of action accrued, and returning to the state. This evidently does not contemplate a cause of action accruing against one who was never in the state, who never, by any absence from the place where the cause of action accrued, interrupted or delayed the plaintiff. Its object was to deprive those of the benefit of the statute, who by departing from the state, before the cause of action accrued, or after it accrued, of all benefit of the statute, until by a return into the state, the plaintiff should have it in his power to assert his cause of action, in that forum, to which the parties looked for remedy, when the contract was made. A citizen, or resident of Mississippi, contracts a debt. To the courts of Mississippi, the creditor looked for a remedy; his debtor, before or after default, looked for a remedy; his debtor, before or after default, departing, and thus delays the plaintiff the pursuit of the remedy in the natural forum; the statute deprives him of advantage, resulting from his departure, and no more declaring that the time shall only run from his return to the state. Now the expression, return to a state, conveyes no such idea as that which must be adopted to support the replication. The court cannot say that the words, return to, and come into, are equivalent expressions; and it is wholly arbitrary to say that the legislature used the former to include the latter, when every school boy knows the difference. The words of the statute, so far from conveying the idea, that a person, who had never been in the state, was excluded from its operation, most distinctly conveys the reverse impression. It declares what defendants shall be excluded from its operation, and instead of declaring, that a defendant, who is absent, when the cause of action accrues, shall not have the benefit of its provisions, until he comes into the state, declares that he shall have such benefit, until he return, thereby by necessary inference, applying this provision to those only, who have departed from the state; for he cannot return to, who has not departed from. I am not ignorant that the English courts have held a different doctrine, nor am I that many American courts have followed the English decisions. I conceive that the Court of Appeals of Mississippi should not , and that without departure from what it has already decided, cannot follow the English decisions, and those of the states that have adopted those of England.

    The language of the Court of Appeals of Kentucky, in Bell v. Rowland's administrators, Hardin, 301, is most strickingly true, and the spirit of independent thinking which governed that (then) learned bench, is worthy of all commendation. Speaking of the English decisions on the statute of limitations, it is said, "But it seems to us, that many of those decisions have gone unwarrantable lengths in evading the statute, and that some of them have indeed, amounted to a total disregard of its provisions. These decisions of the English courts, being only their construction of their own statute, we are free to declare, that we do not consider them obligatory upon us, in giving a construction to our statute, although similar in its provisions to theirs; and that so far as they have gone on nice refinements, for the purpose of evading the statute, they must be disregarded."

    This court has decided in Davis v. Minor, 1 Howard, 184, that "a bar produced by the operation of the statute of limitations, is as effectual as payment, or any other defence; and although it be generally true, that the statute only bars the remedy, and does not destroy the right, yet the defence having been vested, any subsequent revival of the right to sue, as by a repeal of the statute, or any other act, without the consent of the party entitled to the defence, will not take away or destroy that defence."

    This being settled, it seems to follow that the 12th section of the statute cannot be construed to exclude from the operation of the limitations, fixed in the preceding sections, those who had never been within the state of Mississippi. For if it does exclude them, then an action may be maintained, when they come into the state; although by the law of the state where the contract was made, and where the parties resided, was barred before they came into this state. And, indeed, such is the decision of those courts, that held the words "return to" and "came into" are equivalent. Thus a defence as valid as payment, would be of no avail. A party may have acquired by operation of the statute, a defence as effectual as payment by the "lex loci ntractus." but if he comes to Mississippi, it is to be held no defence. On what principle is this to be adjudged? We only enforce foreign contracts in our courts upon the principle of comity; those that are valid when made, we regard here as valid, unless they interfere with some local policy, and those which are invalid when made, we regard as invalid, and we apply and enforce the law of the place of the contract, in all things that relate to charging the party, and why ? because the contractors looked to that law in creating the obligation. Did they not also look to that law for the means of discharging the person from legal liability? The distinction between right and remedy, is often a necessary and sensible distinction. But when it is made the means of overturning a valid legal defence, vested in the party by the law of the place of the contract, it becomes a great evil. Yet this it most inevitably do, if we hold that you cannot rely on the statute of limitations of a foreign state, and also that our own does not run in favor of one, who has never been in the state.

    The supreme court of New York in the case of Ruggles v. Keeler, 3 Johns, Reps. 267, after adopting the decisions of the English courts, that "returning to" means, coming to, say: "It was stated upon the argument as a plausible objection to the rule, that stale demands might in this way" be revived and enforced against persons, who might in this way" be revived and enforced against persons, who might happen to be found in this state, and who have not resided here long enough to be protected by the statute of limitations of this state. The answer is, that a presumption of payment will undoubtdly attach to stale demands. When this presumption is to be let in, will depend upon the age and nature of the demand, and the special circumstances under which it may present itself. It is sufficient to observe, that this presumption of payment, must as a matter of evidence, be left in each case, to be raised or repelled by the respective parties, and in this way, any serious inconvenience from the revival of dormant claims will be avoided."

    Now to devolve it on the respective parties as matter of evidence, to raise and repel the presumption of payment, is, in the language of the Court of Appeals of Kentucky, in Bell v. Rowland, before referred to, "requiring of the defendant what the statute clearly intends shall not be required; that he shall make proof of the payment. The statute goes upon the presumption, that payment has been made and that after the lapse of time, proof cannot be reasonably required." This is in exact accordance and, "that the intention of the legislature, was evidently to bar claims after a certain time, not by interfering with the origin of the demand, but by interposing a barrier equally as fatal to the right, as though it had been void in the inception." Judge Haywood, in the case of Barton's lessee v. Shali, Peck's Reports 215, says that "the act of limitations is a law of presumptions; it presumes evidence from length of time, which cannot now be produced; payment which cannot now be proved, &c." In the same opinion he says, "the act should be so constured as not to defeat the presumption which it is intended to establish. In this case the presumption arising from, and necessarily attached to, the act of the plaintiff had actually accrued at the expiration of the required time, arming the defendants with a right to set them up to his defence, and creating a given state of facts, forming a good bar to the remedy, and a consequent destruction of the right.

    If the statute presumes the debt paid from lapse of time, does that presumption become less strong from the fact, that the party, when he made the contract resided in, and for the whole sixteen years continued to reside in Virginia? Surely not; but, on the contrary, from the fact that he continued at the place of the contract, accessible to the demand of his creditor, and amendable to the lex loci contractus, it is more rational to presume payment, than it would have been, had he immediately after making the contract, removed to a distant state, say to Mississippi, where it might be difficult for the creditor to pursue and find him. It is but fair to presume, that the legislature took a rational view of the subject; consequently did not intend to  exclude from the statute, him who was always to be found, where the creditor had a right to expect to find him, but to exclude those only, who by departing from the state, postponed the debt, and therefore they used the appropriate expression for that purpose, and said, "return to," than which expression none could have been less appropriate, had they intended to exclude him who was never in the state.

    The unreasonable constuction, against which I contend, originated in those times, to which this court have reference, when they say "The odimn which once attached to defences under this provison, has worn off, and the statute is now properly construed like all other statutes of general utility, so as to effect the intention of the legislature.: When this odium attached, its effect was to induce forced and unwarrantable decisions, falsely called constructions of the statute; one of which I now resist. This court has already taken its stand, in favor of a sound, practical, and fair construction, and is wholly untrammelled, by any decisions which are authoritative. We may, should, and do, respect the learned courts, which have already decided this question; but whatever respect we may have for them, we should not admit their decisions as binding, but freely availing ourselves of all the lights shed by them, on the construction of their statutes, we should only follow in their tracks, when we see that they are lights, or at any rate, when we perceive that they are not warranted by the text, we should not follow them. And, because it is belived that it will be so seen in the present case, it is confidently expected, that the judgment will be reversed.
    The remedy for the evil of reviving stale demands, to which Chancellor J. Kent refers to in 3 Johnson, is, that payment may be presumed, and inferred from facts. Here the court say the law itself presumes the debt paid after the time fixed by the statute has run. The view of this court, evidently militates with his, he regarding the lapse of time, as one amongst other facts, from which to presume payment as a presumption of fact. This court takes it as a conclusive presumption, not of fact, but of law. If his decision in that case is here followed, we must retract the doctrine, that it is a presumption of law, and assume that of its being merely a fact in evidence of payment, 2 Dallas, 217.

    Hughes, for defendant in error.

    It is assigned for error:

    1. That the court erred in overruling the demurrer to the replication of the plea of the statute of limitations.

    2. The court erred in rendering judgment for the plaintiff without having disposed of the issue joined on the plea of payment.

    3. The court erred in assessing damages without the intervention of a jury.

    It is clear that the court did not err, in overruling the demurrer to the replication to the plea of the statute of limitations. The exception in our statute of limitations is as follows:

    "If any person or persons against whom there is or shall be any cause of action, &c. is or are or shall be out of this state, at the time of the cause of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons who is or shall be entitled to such action shall be at liberty to bring the same against such person or persons, after his, her, or their return into the state," &c. (Revised Code, 186, & 12.)

    But for the word return, which is in the latter part of the section, there could be no difficulty whatever about its construction. But it is insisted, that the word return limits and controuls the preceding part of the section, and shows the intention of the legislature to have been to provide, for cases against defendants who had once been in the state, had gone out of it and returned, and not to cases where the defendant, or the making of the agreement, promises, or contract sued on, was a non-resident, and just come into the state within a given period. The English statutes of 21 Jas. 1. c. 16, & 3, and 4 & 5 Ann, c. 16, make an exception, the one in favor of creditors beyond seas, and  the other against debtors, and in both the term return or returned is used; yet the courts in England have decided, that the exception applied as well for or against creditors and debtors not citizens or foreigners, as for or against citizens or residents beyond seas returned. (See 5 Bac. Ab. title Limitation of Actions, D. 3. E. p. 255--6; 234--5; Starkie's Ev. 485, n. 2; Stright v. Keirne, 1 Johnson's Cases, 76; Hall v. Littell, 14 Mnss. Rep. 203.)
    There is nothing in the second assignment of error. This is cured by the statute of jeofails. (See Revised Code, 124-5, last clause of section 91.)
    The third assignment amounts to nothing.

    Mr. Chief Justice Sharkey:

    The defendant in error brought an action of debt on a writing obligatory, dated the 9th of April, 1819. The plaintiff in error pleaded the statute of limitations, that the action was not commenced within sixteen years after the cause of action accrued. To this plea the plaintiff below replied, that at the time of the execution of the writing obligatory the defendant below was a resident of Virginia, and absent from the state of Mississippi. That he did not come into this state, until 1838, and was not until that time subject to the jurisdiction of the courts of this state. To this replication there was a demurrer, which was overruled, and judgment for the plaintiff below. The correctness of the decision on the demurrer is the only question in the case.

    It is the statute of this state which is pleaded; not that of Virginia. We are not therefore called on to decide whether the limitation of another state can be set up as a defence here.

    The question presented by the record has been so often decided in other states, under similar statutory provisions, that it must now be considered as settled. But, apart from decided cases, the 12th section of the statute, Rev. Code, 186, seems to apply as well to persons who have never resided in this state, as to those who have removed before the cause of action accrued. It is as follows: "If any person or persons against whom there is or shall be any cause of action, as is specified in the prededing sections of this act, (except for the recovery of lands, tenements, or hereditaments,) is or are or shall be out of this state, at the time of the cause of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons who is or shall be entitled to such action, shall be at liberty to bring the same against such person or persons after his or their return into ths state; and the time of such person's absence, shall not be accounted or taken as a part of the time limited by this act." The word "return," in the latter part of the section, is the only thing that in the least favors a different construction, and these can be no good reason for allowing that to control and limit the previous broad and unequivocal enactment.

    The reason and justice of the enactment apply as well to those who have not been in the state at all, as to those who have not been in it since the cause of action accrued. It was evidently intended that the remedy should not be barred until there had been ample time and opportunity to enforce it, under the laws of the state. Until the defendant came within the jurisdiction of our courts, there was no such opportunity. The only remedy inthis case was by personal action; that did not exist until the defendant was subject to the jurisdiction of the state courts; and of course it could not be barred until it had an existence. The savings in the English statutes of 21 James 1 and 4, Ann, both as to plaintiffs and defendants who were abroad when the cause of action accrued, have been held to apply as well to those who had never been in England, as to those who had left before the cause of action accrued. And such also has been the construction in most of the states of the Union. (Hall v. Little, 14 Mass. Rep. 203; Shelby v. Guy, 11 Wheaton, 361; Murray v. Baker, 3 Wheaton, 541; Ruggles v. Keeler, 3 J. Rep. 261; 2 Starkie's Evidence, 901, note 2.) A different rule was adopted by the Supreme Court of Tennessee, in the case of Pike v. Green, 1 Yerger, 465; but this decision certainly stands opposed by the weight of authority. No case has been found which sustains it; and although in that case the court undertook expressly to overrule the decision of the Supreme  Court of the United States, yet we think the decision of the latter the better authority.

    This case bears no analogy to the case of Davis v. Minor and wife, cited in the argument, and the principles there settled have no application.

    The judgment must be affirmed.