Frye v. Parker

Limitations. Promissory Notes. R. 8., of 1871, c. 81, § 99; Stat. 1885, c. 876. Pub. Stat. Mass. 1880, c. 197. Notes of hand not witnessed, in which the defendant is payor and the plaintiff payee, that have run before suit brought upon them for more than six years since they became due, are not barred by the statute of limitations, the parties never having lived in this State nor in the same State, territory or country for any time since the notes were given.

On exceptions. This was an action of assumpsit on two promissory notes dated Boston, April 17, 1888, given by the defendant to the plaintiff, who were then and ever since have been non-residents of this State. The plaintiff resides in Massachusetts and the defendant in Missouri. Defendant’s property was attached in Waldo county, and personal service of the writ was made on him. The case-was tried before the presiding justice with the right to except. The only defense made was the statute of limitations. The presiding justice gave judgment for the plaintiff, and the defendant excepted. Jurisdiction: Allen v. Caspari, 80 Maine, 236. Limitations: 11. S., c. 81, § 103; Sweet v. Bracldey, 53 Maine, 846; Thompson v. Reed, 75 Id. 406; McCann v. Randall, 147 Mass. 83 ; Chemung Canal Banlc v. Lowery, 93 IT. S. 72. Limitations: McKenzie v. Wardwell, 61 Maine, 136; Trafton v. Hill, 80 Id. 503 ; Brew v. Brew, 37 Id. 389. Thompson v. Reed, 75 Maine, 404, leaves us to infer plaintiff was a resident of this State from 1875, to commencement of the action. Hapgood v. Watson, 65 Maine, 510, shows plaintiff a resident of this State when action was commenced and defendant a resident when note was made. Haclcer v. Hverett, 57 Maine, 548, shows plaintiff a resident of Maine, and defendant a resident of New Brunswick. In Brown v. Nourse, 55 Maine, 230, we are left to infer that defendant was resident of the State at making of note and moved out of the State afteiwards. Keyes v. Winter, 54Maine, 399, defendant was absent from State from date of note to 1865. Peyret v. Coffee, 48 Maine, 319, defendant left the State a few days after note was given and did not return until within two days before action commenced. Byrne v. Crowninshield, 17 Mass. 55, defendant pleaded the statute of limitations of New York in Massachusetts court. Wilson v. Appleton, 17 Mass. 179, plaintiff was a foreigner. Bulger v. Roche, 11 Pick. 35, plaintiff and defendant were foreigners. Putnam v. Pike, 13 Gray, 535, is a meager case but leaves us to infer tlie plaintiff became an inhabitant of the State at some time probably before the six years had expired. The legislature intended that non-resident creditors shall not be entitled to the saving clause of the statute, as an exception is made in favor of creditors without the limits of the United States when the cause of action accrues. R. S., ch. 81, § 88. Allowing the inference, that if creditors reside in a state other than where the action is brought, the statute will apply. Whitney v. Goddard, 20 Pick. 304. Applying this inference, the saving clause would not re-instate the rights of a non-resident creditor who always has been such and so declares himself. For the constitution of the United States not only entitles the citizens of each state to all the privileges, but also to all the immunities of citizens in the several states. Therefore, w'hen the creditor invokes the saving clause of the statute that the debtor has not lived in the state when the action is brought, the necessary six years, the debtor may reply, the creditor has not been there to receive his pay. The general policy of the law requires the debtor to seek the creditor to pay his debt. It should not oblige him to live six years in every State in the Union before acquiring the right to the statute of limitation against a non-resident creditor. Under these circumstances, the plaintiff cannot take advantage of the saving clauses of the statute, that of the absence of the defendant from this State at the time the action on the notes accrued, or was absent from the State after it accrued. That law was passed for citizens of this State, not for strangers. Not for absent creditors. Counsel also cited: Beardsley v. Southmayd, 3 N. J. L. (Green,) 171, approved in Bank v. Lowery, 93 U. S. 72; Associates Jersey Go. v. Pavison, 5 Dutch. 424.