Olcott v. . the Tioga Railroad Company

20 N.Y. 210

• Court: New York Court of Appeals
• Decided: September 5, 1859
• Status: Published

Opinion

Denio, J.

It cannot be doubted but that it was the general object of the statute of limitations to save the remedy of the creditor in all cases where he was prevented from prosecuting the debtor in our courts, in consequence of the absence of the latter from the State. (2 R. S., 295, 297, §§ 18, 27.) That such is its effect in respect to natural persons is conceded. If the debtor, being an individual, resided out of the State when it accrued, no period, however great, will bar the claim while he continues so to reside. There is no apparent reason, in the nature of the case, for discriminating in this respect in favor of a foreign corporation; but it is argued that the provision saving the rights of the creditor is clothed in such language that it cannot without violence be applied to any except natural persons. This is not on account of the use of the word, ‘person’ in the 27th section, for that will embrace a corporation provided there is nothing in the connection in which it is used repugnant to such a construction. (2 R. S., 778, § 11.) But it is true that returning to a State or departing from it are acts which cannot be predicated of any but- natural persons. It must therefore be conceded that the latter branch of the section, which provides that if after a cause of action shall have accrued “such person shall depart from and reside out of this State,” the time of his absence shall not be reckoned as part of the time limited, can have no application to a corporation existing under the laws of this State; and there would be no use in such an application of it, for our corporations can always be sued in our courts. It is not so clear, however, that the former part of the section must necessarily be limited to the case of a debtor who has the ability to return to the State. The provision is that if at the time the cause of action shall accrue against any person, he shall be out of this State, such action may be commenced within the term before limited after the return of such person into this State. But suppose the person being an artificial, corporate body, legally confined to the territory of another State, cannot by possibility return here, then by a verbal construction of the sentence the action may be commenced at any time; for the period of limitatior will never commence to run. Ordinarily it is not necessary, in order to bring a subject within the purview of a statute, that every particular of the statutory language should apply to it, provided the intent to embrace it is clear. (Spraker v. Cook, 16 N. Y., 567.)

The courts have uniformly applied to statutes of limitation a liberal construction, and in many instances have accommodated the strict language of the act so as to effectuate the general intention of the Legislature. Thus the statute (4 Anne, ch. 16, § 19) provides, in nearly the same language as our act, that if the person against whom a cause of action shall accrue shall at the time be beyond the seas, the action may be brought within the time limited after his return. In Forbes v. Smith (30 Eng. Law & Eq., 600), where the statute was pleaded, it was held not to be necessary to aver in the replication that the defendant had returned. The court said that the plaintiff might sue at any time not greater than six years after the return of the defendant, but should he desire to sue before his return he might take that course. It was conceded that this construction was a departure from the strict language of the statute. In the statute of James there is a saving of the rights of parties in whose favor actions exist; and it is declared that they shall bo at liberty to bring their actions within the time of limitation “ after they shall have returned from beyond the seas,” &c. Suppose the party never returns, but, long after the action accrued, dies abroad: By the terms of the statute the action is barred,, and the party is not brought within the saving, for he has never returned, and, being dead, he never can return. That precise question arose in Townsend v. Deacon (3 Exch., 706), and it was held that the executors might maintain the action, though it was admitted that, strictly speaking, the creditor had never returned. In Ruggles v. Keeler (3 John., 263), the question was, whether the statute of limitations of this State had run against a demand contracted in Connecticut when both parties were citizens of that State. The statute was, that if the debtor, at the time the cause of action accrued, should be out of the State, the suit might be brought within the time limited “ after the return of the person so absent into the State.” It was plausibly argued that, as both parties resided out of the State at the time the contract was made, no return into this State could have been contemplated, and that, therefore, the case was not within the proviso. The court held, Kent, Ch. J., giving the opinion, that coming within our jurisdiction was within the meaning of the proviso, though the party had never been here before; and he referred to cases to show that this was the construction which had been put upon the English statute. The same point, in substance, was detennined in the English Court of Common Pleas, in 1854, under the statute of James, which, as has been mentioned, allows the plaintiff to maintain an action, which would otherwise be barred, if he sues within the time limited after having “ returned from beyond the seas.” The plaintiff was a Frenchman, and had never been in England, and the defendant’s counsel argued that he could not return, not having been in England before, and that the exception applied only to persons who could be said to return. The point was held not to be tenable. Maulé, J., said: “ The courts have taken notice of the scope and intention of the statute of limitations.” (Lafonde v. Ruddock, 24 Eng. Law & Eq., 239.) The same point had been ruled many years before in Strithorst v. Graeme (3 Wils., 145), where the court said that if the plaintiff, who was a foreigner, did not come to England in fifty years, he still had his right of action, and if he never came, but died abroad, his executors or administrators would have it after his death. In Benjamin v. De Groot (1 Denio, 151), a similar question arose under the section of'the Bevised Statutes now under consideration. The action was against an executor, and the statute was pleaded; to which there was a replication that the testator resided in Great Britain when the cause of action accrued, and never returned to this State, but died there; that letters testamentary were taken out here on a certain day, and the action brought within six years afterwards. The defendant demurred, and it was argued on his behalf that the 27th section of the act related only to the case of a defendant out of the State when the cause of action accrued and returning into it, and that it gave the plaintiff six years after his return but had no application where he died abroad. But the replication was held good, the court saying that though the case was not within the words of the section, it was within its equity. This court, in Davis v. Garr (2 Seld., 124), determined the same point in the same way, on the authority of the last mentioned case, and of Douglass v. Forrest (4 Bing., 686).

There has been a similar course of decision in the courts in Massachusetts. The saving clause in their statute was that, “If any person or persons against whom there is, or hereafter shall be, any cause of suit, &c., who, at the time the same accrued, was without the limits of this Commonwealth, and did not leave property or estate therein” that could be attached, “that then and in every such case, the person that is entitled to bring such suit or action shall be at liberty to commence the same within the respective periods before limited after such persons return into this government.” In Dwight v. Clark (7 Mass., 515), the statute was pleaded and it appeared by the pleadings that the defendant was an inhabitant of Connecticut when the promises were made, and had never before that been an inhabitant of Massachusetts, and that he did not come to the latter State until after the period of limitation had elapsed. It was argued on his behalf that the exception did not apply, because leaving property and returning to the Commonwealth were things which could not be predicated of one who had never lived in Massachusetts. The court, however, said that it was a much more reasonable construction to hold that the exception was intended to be. general and to comprehend all persons who were without the Commonwealth and had not attachable property within it. The point was again affirmed in Bulger v. Roche (11 Pick., 39).

The course of adjudication established by these cases authorizes us, I think, to carry out the obvious intention of the Legislature, in the statute before us. We can see no motive which it could have had for discriminating in favor of a foreign corporation, or any indication of an intention so to discriminate. The language of the exception in the first branch of the 27th section is not in all respects congruous to the case of a corporation; but there is an incongruity nearly as great in applying the phrase “returning into this State” to a person who had never resided here, and quite as great in accommodating it to the case of one who had died abroad, and who could not by any possibility return. If the consequence is that a corporation in another State or country cannot enjoy the advantage of our act of limitation, the same is true of a natural person domiciled abroad and whose circumstances prevent his coming within our jurisdiction. The policy of our law is that no persons natural or artificial who are thus circumstanced, can impute laches to their creditors or those claiming to have rights of action against them in not pursuing them in the foreign jurisdiction where they reside. It was equitable and in accordance with the policy of the law of limitation that when the reason for excusing the creditor from the use of diligence should cease, by the debtor coming into the State, the obligation to use diligence should again attach. In engrafting this policy upon the statute the Legislature made use of general words which, though adequate to describe a corporation, did not contain any language referring specifically to a debtor who could not, by its constitution, pass from one territorial jurisdiction to another.

The case of Faulkner v. The Delaware, &c., Co. (1 Denio, 441), was decided without a reference to the authorities which have been referred to or a full consideration of the policy of the act, and should not, I think, be followed.

The judgment of the Supreme Court must be reversed.

All the judges concurring,;

Judgment reversed, and a new trial ordered.