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privilege first above specified was void for want of a sufficient return, &c.

And of such opinion was the court, and the defendant had judgment.

175

CHAP. VIII.

Of the Proviso contained in the Seventh Section.

HAVING considered what acts of the party plaintiff prevent the statute from attaching on his cause of action, we come next to the cases excepted by the legislature out of its operation by the seventh section. It is enacted, that if any person that is entitled to any such action of trespass, detinue, action sur trover, replevin, actions of accounts, actions of debts, actions of trespass for assault, menace, battery, wounding, or imprisonment, 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 be 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 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

(a) Cro. Car.333.

plaintiff is 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 defendant 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. Clapham;(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.

The plaintiff brought an indebitatus assumpsit :(b) 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 it by error. It is a new way invented for 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 eause 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

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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. 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.

But now, by the statute of 4 Anne, c. 16. s. 19. that "if any person or persons, against whom there shall be any such cause of suit or action for seamen'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 or persons entitled to any such suit or action shall be at liberty to

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