Mason, Chapin & Co. v. Union Mills Paper Manufacturing Co.

Fowler, J., delivered the opinion of the Court. The question presented by this appeal relates to the construction of section 5 of Article 57 of the Code, title, “ Limitations of Actions.” Both parties are non-residents of this State, the defendant being a Pennsylvania corporation, and the plaintiffs are citizens of and doing business in the State of Rhode Island, under the name of Mason, Chapin and Company. The plaintiffs sued out of the Superior Court of Baltimore City, on the 7th February, 1894, a foreign attachment against the defendant, the cause of action being a breach of contract by the latter. This attachment was laid in the hands of the Baltimore and Ohio Railroad Company as garnishee, and the defendant corporation voluntarily appeared in the short note case and filed four pleas, upon three of which issue was joined, and to the fourth, which was the plea of limitations, the plaintiffs replied “ that the said defendant was, at the time said cause of action accrued to the plaintiffs, absent from the State of Maryland to-wit, in the State of Pennsylvania ; and thereafter was and continued to be and remained absent from this State up to within three years before bringing this suit.” To this replication the defendant rejoined: “ That the alleged cause of action accrued more than three years before the institution of this suit outside of the State of Maryland, and at the time of the accruing of said cause of action, both the plaintiff and defendant were non-residents of the State of Maryland and have never ceased to be non-residents, and said contract, on which this suit was instituted, was not made in this State, nor was any part of it to be peformed in this State.” The plaintiffs demurred to this rejoinder, and the Court below overruled the demurrer and gave judgment therein in favor of the defendant.

From this judgment the plaintiffs have appealed. The precise question is whether section 5 of Art. 57 of the Code applies to cases where both plaintiff and defendant are non-residents, and where the cause of action accrued outside of this State, and the contract sued on is a foreign contract. ⁴⁴⁹ On the part of the plaintiffs it is contended that they have the same rights and occupy the same position as to the right to rely upon the provisions of our Code relative to limitations of actions that any resident of this State has, and that if a citizen of Maryland could not be successfully met by a plea of the statute by a foreign debtor, who is a resident of Pennsylvania, no more can such a plea be so set up against them. On the other hand, the defendant contends that the provisions of section 5 of Article 57 were made for and relate alone to debtors who are citizens of Maryland, and that a non-resident creditor who elects to bring a non-resident debtor into the Courts of Maryland in order to recover on a foreign contract, cannot avoid a plea of limitations by pleading the absence out of the State of such non-resident, in the terms of said section 5. It will be observed that the validity of the replication of the plaintiff must depend upon the construction placed on section 5 of Art. 57.

That section provides that “ if any person liable to any action shall be absent out of the State at the time when the cause of action may arise or accrue against him, he- shall have no benefit of the limitation herein contained, if the person who has the cause of action shall commence the same after the presence in this State of the person liable thereto within the times herein limited.” This language is certainly broad enough to include within its terms the defendant. It could not be much broader than it seems to be made by the words, “any person liable to any action.” But comprehensive and all-embracing as it may seem to be, yet the language used in the statute must be construed and taken in the sense in which it appears to be used by the Legislature. The defendant suggests that an investigation or historical study of the origin and growth of the statute will show that its contention is the proper one, but after a careful examination of the old statutes, the original Statute of 21 James, 1, chapter 16, and 4 and 5 Anne, chapter 16, section 19, as well as the several statutes adopted by this State, all of which are based upon and in many re ⁴⁵⁰ spects similar to or modifications of the provisions of the old English statutes just referred to, we have arrived at a different conclusion. In the Statute of James there was a provision in favor of “ any person or persons ” “ beyond the seas,” and the same provision appeared on our own statute until 1818, when the Act of that year, ch. 216, repealed it.

It is true that the words “ any person,” &c., “ beyond the sea,” both in the Statute of James and our old statute, related to persons who were entitled to sue, but there was a similar provision in regard to defendants to be found in 4 and 5 Anne, ch. 16, sec. 19, by which it is provided that the statute should not run in their favor during their absence from the realm. And so, the words in section 5 of Art. 57, Code, relate to absent debtors, and the whole section is doubtless a modification of section 19 of the Statute of Anne. If these words, or similar ones, have been uniformly held, when used in the English Statutes of Limitations, from which ours are derived, to include both residents and non-residents, subjects and foreigners alike, then a like construction should be given to them, or similar words, when they appear, in our statutes. In Angel on Limitations, sec. 21, the correct rule is laid down for construing these statutes.

He says, in speaking of the Statute of James I, as modified by that of 4 and 5 Anne, “ where any difference appears between the provisions of that statute in respect to personal actions and those of American Statutes of Limitations, it will be seen to be more in words than in substance, the end of one and all of them being one and the same.” * * * “And the mere change of phraseology in the revision of the statute before in force will not work an alteration in the law previously declared, unless it undisputably appeal's that such was the intention of the Legislature,” (see authorities cited in note.) In the case of Strithhorst v. Graeme, 2 W. Bl. 723, which was an action of assumpsit, the defendant pleaded non-assumpsit and limitations. The plaintiff, who was a foreigner, replied that he had been beyond seas, &c., in Germany and ⁴⁵¹ so remained, &c. Counsel argued that the replication was bad, because if the law stood so, foreigners who reside always out of England would have the same or greater advantage than natives, and that the exception in the statute was meant for Englishmen who occasionally go beyond seas. But Wilmot, Lord C. J., said, “ The exception in the statute is general, and therefore there must be judgment for plaintiff.” This' case is also reported in 3 Wilson, 145 , and the opinion of the Chief Justice is there given more fully to the same effect.

Also Le Veux v. Berkley, 5 Queen Bench, 836, which was tried before Lord Denman. And in the later case of Lafoude v. Ruddock, 24 E. L. & Eq. 239, it was again contended that the proviso of section 7 of Stat. 2r, James 1, relating to creditors “ beyond the seas,” could not apply to foreigners coming to England for the first time. Jervis, C. J., again applied the liberal construction and said: “ The proviso in' favor of persons under disabilities in the Statute 21 James, ch. 16, applies as well to foreigners who have never been in this country, as to parties residing abroad at the time of the accruing of the cause of action, and returning afterwards to England.” As we have seen, this same exception in favor of absent creditors was, until 1818, a part of our statute, and it was then repealed, because it was not considered fair, as suggested also in the old English cases we have cited, that citizens of other States and subjects of foreign countries should have greater advantages than our own citizens. And that this was the object intended by the repeal of the proviso in favor of absent creditors, is evident from what was said by Archer, J., in delivering the opinion of the Court of Appeals in the case of Frey v. Kirk, 4 G. & J. 521 . “ The unlimited latitude,” he said, “given to persons beyond seas was considered by the Legislature as unreasonable, and it could constitute no actual grievance or just cause of complaint if they were reduced to the same standard as our own citizens. ” And again he says in the same case, that the construction the Court had placed on this ⁴⁵² same Act, was such as put all suitors, foreign and domestic, upon the same footing.

See also Pancoast, Lessee, v. Addison, 1 H. & J. 350 . It is apparent, therefore, that the saving or exception in favor of creditors has always in England, and in Maryland also, as long as it was a part of our law, been held to apply to both foreign and domestic creditors. And if that be so, why should'not the like provision in section 5 of Art. 57 have the same liberal construction? In England, under the Statute of 4 and 5 Anne, ch. 16, sec. 19, a foreign defendant could not plead the Statute of Limitations unless he had returned and been in England during the statutory period of limitation.

Forbes v. Smith, 11 Exch. 161; Fannin v. Anderson, 7 Queen Bench, 811. And it has been uniformly held that the words “beyond the seas” is equivalent to “out of the State,” “out of the jurisdiction,” It was so held by this Court in Maurice & Worden, 52 Md. 291 , and, therefore, if section 5 should be read as construed in that case, it would read as follows: “If any person, &c., shall be out of the State, beyond seas or out of the jurisdiction of the State ” at' the time the action accrues, &c., he shall have no benefit, &c. So read, section 5 would be identical with section 19 of Statute 4 and 3 Anne, ch. 16, which has always been held in England to include both residents and non-residents. Fannin v. Anderson, 7 Queen Bench, 811 ; Towns v. Mead, 16 C. B. 123 ; Forbes v. Smith, supra.

Then, according to the terms of this section thus read, a citizen of Pennsylvania may be sued in our Courts, and it is conceded that, as against one of our citizens, a citizen of Pennsylvania cannot successfully plead the statute when sued here, if the former shall commence his action after the presence here of the latter within the statutory period, for it was so held in Hysinger v. Baltzell, 3 G. & J. 158 . In White v. White, 1 Md. Ch. Dec. 57, it was held that the circumstance of the defendant in that case, being a non-resident, did not deprive him of the benefit of the Statute of Limitations of Maryland, because it was clearly shown that ⁴⁵³ he had been in Baltimore more than three years before the action was commenced. And, of course, if he had not been here during the statutory period, he could not have relied upon limitations as a defence.

It would also seem to be clear that the plaintiffs, who are citizens of another State, have the same right to sue here that a citizen of this State has, and it is difficult to understand upon what principle of justice or fairness the non-resident debtor should be allowed to plead limitations against a non-resident creditor, and not against one of our own citizens. All should be on the same footing. Frey v. Kirk, supra. And this would accord not only with justice, but would seem to be giving to non-residents nothing more than they have a right to demand.

For it would not do to say that our citizens and citizens of other States would enjoy the same rights and privileges here, when, under our law, the latter would be absolutely barred from recovery by a plea of limitations, while it would not avail against the former. Paine v. Drew, 44 N. H.