The question is, whether the rule prescribed by the Rev. Sts. c. 120, <§> 9, regulating the time within which an action shall be brought, shall- be applied in this case, although the causes of action, on both notes, accrued before the revised statutes went into operation. The rule of limitation there prescribed, and the rule which it superseded and replaced, are essentially different. By the former law, St. 1786, c. 52, <§> 4, if the plaintiff were out of the United States when the cause of action accrued, the statute did not run against him, until he came within them, by which the impediment was removed, or, if the defendant was out of the Commonwealth when the cause of action accrued, the term of limitation did not begin to run in his favor, unless he left property which could be attached by ordinary legal process, until his return into the Commonwealth. Bulger v. Roche,
But by the Rev. Sts. ‘c. 120, <§> 9, if the debtor be out of the State when the cause of action accrues, the action may be commenced within the time limited therefor, after he shall
The court are of opinion, that the rule of the revised statutes must apply, having been in force many years when this actio,n was commenced. It is precisely within the terms of the statute. The action was commenced in September 1845. After the causes of action had accrued, namely, in 1836, the defendant departed from the State, and from that time was “ absent from and resided out of the State ” nine years. Those nine years are therefore not to be taken as part of the time of limitation ; and without them, six years had not elapsed when the action was brought.
But it is said, in the elaborate and learned argument of the counsel for the defendant, that these words, “ shall have accrued,” must apply only to a case where the cause of action should accrue after the statute went into effect. But nothing in the terms, and nothing in the object or purpose of the statute, requires or warrants this qualification. The form of-expression was manifestly adopted to mark the distinction in the two cases; one, as in the old statute, where the defendant should be out of the State when the action should accrue ; and the other, to which the revised statutes extended the exception, when the defendant should go out of the State, after the cause of action should accrue. The cause of action will have accrued, when the defendant goes out of the State after the revised statutes go into operation, although that cause of action first accrued before.
But further; if the defendant relies wholly on the St. of 1~86, and insists that the revised statutes do not apply to the case, it would follow that, as the St. of 1786 is expressly repealed, there would be no limitation whatever. But w#
The argument for the defendant, we think, assumes, without authority, that the law limiting an action upon a contract must be the law which is in force at the time, and in the country where the contract is made, and in effect forms the law of the contract; and therefore that any act of legislation, which alters such law of limitation, does in effect impair the obligation of contracts. This, we think, is not a true view of the law. It is well settled, that the law of the place where the contract is made, the lex loci, regulates the construction, operation, and legal force and effect of the contract;, but that the law of the place where the remedy is sought, the lex fori, regulates the time within which a suit shad be brought, the form and mode of bringing it, the relief to be afforded; as, either by enforcing a specific performance,
By the comity of states and nations, the obligation of a contract is recognized, wherever the regular administration of law and justice exists; and therefore a suit on these contracts might have been brought by the plaintiff, in any State, to the laws of which the defendant, by his residence therein, might have become amenable. But if different States have different times of limitation, with different exceptions and qualifications, the law of each State, in which the plaintiff might bring his action, must govern in this respect. If one has a limitation of five years, another of seven, and another of twenty, with fewer or larger exceptions, the remedy must be such as each State would afford, and the suit be brought within the time prescribed by its own statute of limitations. When, therefore, a promissory note is made in Massachusetts, neither the promisor nor the promisee can consider the law of Massachusetts, then regulating the limitation of actions, as part of such contract; because the one may sue, and the other be liable to be sued, in states and countries where the law of limitation in Massachusetts cannot be recognized or enforced. It therefore cannot be maintained that a law, reasonably regulating the limitation of actions, is a law impairing the obligation of contract®. If, indeed, the legislature should declare that a period already elapsed should bar an action, this would be, under color of regulating, arbitrarily to take away all remedy, and in effect destroy the contract, within its jurisdiction, and would be a mere abuse of power, not to be anticipated from any legislature. The right, therefore, which a defendant has to bar an action by the statute of limitations, is not a
But further; the consideration that the law of limitation does not constitute a part of the contract, but affects the remedy only, forms an answer to the main point of the argument for the defendant, which is, that the law is retrospective. On the contrary, it seems to us to be entirely future in its action. It provides that, when an action shall be brought, it shall be brought within a limited time, or otherwise be barred, A defendant has no vested right in any particular mode or time of limitation; at least before the law in force has actually run, so as to afford him a complete bar; whatever may be said in regard to his right after such a bar is completed by the lapse of time. In the case of Wright v. Oakley, cited in the argument, it was held that, taking all the provisions of the revised statutes together, when the six years had run and become a good bar, before the revised statutes went into effect, it was not taken away by their operation.
But we think it has never been decided that a limitation created by statute could not be extended by statute, so as to postpone the time for commencing an action, by a general law, applicable to all cases, when the suit was not already barred by lapse of time, and by force of the statute. In the case of Holden v. James,
The only change effected by the revised statutes, in this respect, was to suspend the operation of the statute, in all cases, during all that part of the period of limitation in which the defendant should be absent and resident out of the State, and out of its jurisdiction. If, then, the statute has no effect on the contract, which is past when it is made, but only on the remedy, which is then future, it has no retrospective operation, and cannot be avoided on that ground. Bickford v. Boston & Lowell Rail Road,
Exceptions overruled.
Notes
An inaccuracy occurred in drawing up the opinion in that case, (not, however, affecting the grounds of the decision,) by inadvertently stating that the statute did not begin to run against a plaintiff out of the Commonwealth; whereas it should have been, “ out of the United States.” But this obvious mistake could hardly have led any one into error, because it was easily or: ected by referring to the statute.