trespass for assault, menace, battery, wounding, or imprison

A creditor in a foreign country, having an agent here, is not therefore within the Statute of Limitations. Wilson vs. Appleton, 17 Mass. Rep. 180.

66

In the case of the Estate of Martin Schaeffer, deceased, (9 Serg & R. Rep. 266.) DUNCAN, J. delivering the Opinion of the Court, said; "Now the absent creditor, I mean absent beyond sea, is a privileged creditor. The Act of Limitations does not run against "him, until he comes within the United States; if he is within the "United States after the debt becomes payable, it then first runs, "and continues to run, notwithstanding subsequent absence be"yond sea. It would seem equally reasonable, that his interest "should be as much protected by his absence as the principal." & Vide Ward vs. Hallam, 2 Dall. Rep. 217. Same case, 1 Yeates Rep. 329.

The residence of a plaintiff within the state of New-York, at the time when the debt accrued, and since, does not bring him within the proviso of the Act of Limitations in favour of persons beyond 'seas. A party entitled to the benefit of the proviso, loses his privilege from the time he comes into the state. Thurston & Al. vs. Fisher, Adm'r. &c. 9 Serg. & R. Rep. 288.

If one be out of the state when the cause of action accrues to him, the Limitation does not begin to run until he comes into the state. Graves vs. Graves' Executor, 2 Bibb's Rep. 207. Beauchamp, Adm'r. &c. vs. Mudd, Ibid. 538.

& Vide

In the case of Oswald & Co. vs. Dickinson's Ex'x. (2 Call's Rep. 21.) PENDLETON, President, who delivered the resolution of the Court, said; "Again, a factor dealing for a resident in Maryland, " is equally within the mischief intended to be remedied [36, 6 Stat. Larg. 480.] by considering it as a dealing with the factor him"self. Among others, one important effect is, to take the case "out of the saving in the Act of Limitations, in favour of persons "out of the country; which extended to the partner in Maryland "as well as to those in Britain."

The saving in the Act of Limitations of North Carolina, “only "extends to such persons as were beyond the sea at the time when "the action accrued; not to such who were here when it accrues." Cobham, Assignee, &c. vs. The Executors of Neill, 2 Hayw. Rep. 5, 6.

In the case of Milner vs. Davis, (Fall term, 1821, Litt. Select Cas. 436.) The COURT said; "The Replication orly alleges the

ment, actions upon the case for words, be, at the time of any such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person shall be at liberty to bring the same actions, so as they take the same within such times as are before limited after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impediment, should have done.

In an action of trover,(a) a question was, the defendant being beyond seas at the time the statute was made, and until primo

(a) Cro. Car. 333.

"disability of one of the plaintiffs, and it is now well settled that "where several persons are entitled to an action, in order to avoid "the effect of the Statute of Limitations, the whole of them must labour under the same disability."

But in the case of Jones vs. Henry & Al. (Spring term, 1823, 3 Litt. Rep. 48.) The COURT OF APPEALS of Kentucky, in delivering their Opinion, said; "It is apparent however from "the language of the eighth section of the Statute of Limitations,

(2 Dig. L. K. 863,) that where all of several plaintiffs are with"out the Commonwealth, or labor under any other disability, at "the time their cause of action accrues, the disability must be re"moved as to each, before the statute will commence running."

If plaintiff be in England at the time the cause of action accrues, the time of limitation begins to run, so that if he, (or if he die abroad) his executor or administrator, do not sue within six years, they are barred by the statute. Smith, Ex'or. &c. vs. Hill. Ex'or. &c. 1 Wils. Rep. 134.

Defendant had given a note of hand to plaintiff's intestate, who, for 17 months after the note became due, was of sound mind, but afterwards became non compos, and so continued till his death, and more than four years had elapsed. Held, that the interve ning insanity of the holder of the note did not suspend the Statute of Limitations, which, having once begun to run, (at the time of action accrued) continued notwithstanding disabilities supervened. Adamson, Adm'r. &c. vs. Smith, 2 Rep. Const. Court S. C. 289.

Caroli, whether he were to be relieved by the equity of the statute, although not within the express words of this proviso? for that provides only where the plaintiff is [*176 ] over the sea, to have his action when he returns, if he

brings his action within the year after his return; but there is no mention, when the defendant is over the seas, of enlarging the time. And it was strongly urged for the plaintiff, that he was within the equity of the said proviso: for it would be inutilis et stultus labor to sue one to outlawry, being beyond seas, when it is erroneous and reversable at his return.

Jones and Berkley, Js. were of that opinion, that the defend ant being beyond seas, was within the equity and intention of the statute, as well as where the plaintiff is beyond seas.

Richardson, Ch. J. doubted thereof, and said he would not deliver any opinion.

But Croke, J. conceived, that the defendant being beyond seas, is not within the equity of the statute: for the statute provided remedy where the plaintiff is over seas, and omitting where the defendant, &c. did it purposely, and never intended to provide any remedy for him, because the plaintiff may prosecute his suit by original, although the defendant be beyond seas, to an outlawry, which will show there was not any remissness in him; which is the matter which the law intends, and that there should be a fresh prosecution; and when the defendant reverseth the outlawry, the plaintiff shall then know where he is to prosecute the suit against him; so the first original is not merely a fruitless and idle labour, but thereby preserves his action.

*The same objection was raised in Beven v. Clap- [*177] ham;(a) but the court, in that case, held that it was within the reason and intent of the statute; but a different construction afterwards obtained.

(a) 1 Lev. 143.

The plaintiff brought an indebitatus assumpit :(a) the defendant pleaded non assumpsit infra sex annos; and the plaintiff replied, that the defendant was all that time beyond sea, so that he could not prosecute any writ against him, &c. And, upon a demurrer, it was argued, that the plaintiff was not barred by the statute which was made to prevent suits, by limiting personal actions to be brought within a certain time; and it cannot be extended in favour of a defendant, who was a debtor and beyond sea, because it is uncertain whether he will return or not; and therefore there is no occasion to begin a suit till his return. It is true, the plaintiff may file an original, and outlaw the defendant, and so seize his estate, but no man is compelled by law to do an act which is fruitless when it is done, and such this would be; for if the plaintiff should file an original, it is probable the defendant may never return; and then, if the debt were a thousand pounds, or upwards, he would be at a great expense to no purpose, or if the party should return, he may reverse it by error. It is a new way invented for the payment of debts; for if the debtors go beyond sea, and stay there six years, their debts would by this means be all paid. The words of the statute do not extend to this case; for the proviso is, "If the plaintiff be beyond sea when the cause of action doth accrue, that then he shall have liberty to continue it at his return;" yet it is within

the equity of law for him to bring his action when the [*178] *defendant returns, who cannot be sued till then.

That statutes have been expounded according to equity is not now a new position; for constructions have been made according to the sense and meaning, and not according to the letter of many statutes; as the statute of Westminster the 2d, c. 11. which gives an action of debt against a gaoler for an escape, and that per breve; yet by the equity thereof, it has been adjudged, that a bill of debt will lie. For the statute of 1 Rich. II. c. 12. gives the like action against the warden of the fleet for the escape of a prisoner in execution; which, by construction, has been adjudged to extend to all gaolers and sheriffs.

(a) 3 Mod. 311.

If this statute should not be expounded according to equity, then, if the plaintiff himself should be beyond sea six years after the cause of action, and die there, his executor or administrator cannot sue for a debt.

Sed Curia.-This case is out of the equity of the statute, which provides a remedy when the plaintiff is beyond sea; but not when the defendant is there. It was never intended to make any provision for him, since the plaintiff might file an original, and sue him to the outlawry. In S. C. Carth. 137. S. C. 1 Show. 99. it is said that judgment was given for the defendant.

any

But now, by the statute of 4 Anne, c. 16. s. 19. that " if person or persons, against whom there shall be any such cause of suit or action for seaman's wages, or any of the causes of action mentioned in the 21 Jac. I. shall be, at the time of any such cause of suit or action accrued, beyond the seas, then the person er persons entitled to any such suit or action shall be at liberty to bring the said actions, against [*179] such person and persons, after their return from beyond the seas, within such times as are respectively limited for the bringing of the said actions by this act, and by the said other act of 21 Jac. I. c. 16."[1]

[1] Vide 1 R. L. New-York, 186, (sess. 24. c. 183. sect. 5, Proviso.)

Under the act of the 21st of March, 1783, suspending the Statute of Limitations during war, and the act of the 26th of February, 1788, saving the plaintiff's right of action, where the defendant is out of the state; in an action on a promissory note, dated the 17th December, 1777, it was held, that the maker, being within the British lines during the war, and departing with the British at the close of the war, was to be deemed as out of the state during that time, and the cause of action as accruing on the 21st of March, 1783, the plaintiff having brought an action within six years after the return of the maker to the state, the latter could not avail himself of the Statute of Limitations. Sleght, Adm'r. &c, vs. Kane, 1 Johns. Cas. 76.