It is reported, in an anonymous case in Shower, vol. 1. p. 91. that Dublin, or any other place in Ireland, is beyond the sea

The saving in the Statute of Limitations extends to foreigners or those who have resided altogether out of the state, as well as to citizens of the state who may be absent for a time. Ruggles vs. Keeler, 3 Johns. Rep. 263. Fowler vs. Hunt, 10 Johns. Rep. Same point, Dwight, Adm'r. vs. Clark, 7 Mass. Rep. 515.

464. 518.

Where a debt is contracted abroad by a person residing out of the state, and the debtor afterwards comes within the state publicly, and so that the creditor, with ordinary diligence and due means, might arrest him, it is a return into this state within the meaning of the proviso in the 5th section of the Statute of Limitations, (Sess. 24. c. 183. 1 R. L. 186.) and, from the time of such return the statute begins to run against the plaintiff's demand. Fowler vs. Hunt, 10 Johns. Rep. 464.

A defendant who removes from one county to another in Virginia, is not thereby prevented from pleading the Act of Limitations, unless the plaintiff has been, by such removal, actually defeated or obstructed in bringing or maintaining his action. Wilson vs. Koontz, 7 Cranch's Rep. 202.-(& Vide Ormsby vs. Letcher, 3 Bibb's Rep. 271. Sneed vs. Hall, (In Error.) 2 Marsh. Rep. (Ky.) 22. where the same construction is given to the same provision of the Statute of Limitations of Kentucky, 9th section.)

If the defendant obstructs the plaintiff from bringing his action by absconding and concealing, he cannot avail himself of the Statute of Limitations. Edwards vs. Davis, 4 Bibb's Rep. 211.

A debtor's return into this government, from which the Statute of Limitations begins to run, must be such a return as will enable his creditor, using reasonable diligence, to arrest his body as security. White, Administratrix, vs. Bailey, 3 Mass. Rep. 271.

66

The exception in the Statute of Limitations, as to the absence of the debtor from the Commonwealth, was intended as gencral, "and comprehending all persons who are without the Common"wealth and have not attachable property within it so that the "statute shall not begin to run, until the defendant is, either by "his person or property, subject to original process." Dwight Adm'r. vs. Clark, 7 Mass. Rep. 515. 518.

If the vendor be a transient person, and withdraws from the state, immediately after the sale, the vendee may bring his action

within this statute; but, since the union with Scotland, the

for rescission, after the return of the vendor, though more than the time of prescription has elapsed since the sale. Morgan vs. Robinson, 12 Mart. Rep. 76.

In the case of Vans vs. Higginson, (10 Mass. Rep. 29, 30.) which was an action upon a promissory note;-the parties at the time of making the note were in parts beyond sea but the plaintiff was within the Commonwealth more than six years before the action was commenced, and after the cause of action accrued ; the defendant was within the Commonwealth after the cause of action accrued, and more than six years before action brought; the defendant pleaded the Statute of Limitations; and the plaintiff replied, that at the time of making the promises the parties were in parts beyond sea; and that he, the plaintiff, was never afterwards within the United States at the same time that the defendant was also within the same, or had any property subject to attachment by the ordinary process of law, until within six years before the commencement of the action Upon a general demurrer to the replication and joinder in demurrer, THE COURT, in giving judgment, said; "The object of the replication in this case is to "to make an exception, which the Statute of Limitations has not "made, and which we therefore cannot support. When the de"fendant came within the state, the six years began to run, as it "respected him; and when the plaintiff returned, the six years "began as to him. The replication is adjudged bad and insuf"ficient."

It must be shewn that the defendant was not a resident of the state, at the time the cause of action accrued, to enable the plaintiff to take advantage of the provision of the 7th section of the Act of Limitations [New Jersey.] Halsey vs. Beach, 1 Penn. Rep. 122.

If a debtor remove or return into this state [Vermont] publickly, and with a view to dwell and permanently reside within its jurisdiction, although in an extreme part from the place of his former residence, or that of his creditor, it is a coming or return within this state, within the meaning of the 10th section of the Statute of Limitations, although the creditor should have no knowledge of such return. So too, if a debtor, having no intention to reside, come or return into the state, and this is known to the creditor, and he has an opportunity to arrest the body of such debtor. But in the latter case, the debtor to avail himself of the statute, must prove the actual knowledge of his creditor of such temporary residence. Mazozon & Al. vs. Foot, 1 Aik. Rep. 282.

(though inaccurately) been used as synonymous terms. It has been questioned whether Scots bills of exchange are inland or foreign bills, and been determined by Ryder, Ch. J. at Guildhall, that they were foreign bills.

This is a new ex

Dennison, J. (absente Lord Mansfield.) periment, and in the case of a positive law. The statutes 21 Jac. I. c. 16. and 4 & 5 Anne, are both express, that the party to be excused must be beyond the seas. Here the plaintiff pleaded that he was in foreign parts, viz. in Scotland. What does he mean by foreign parts? He must be beyond the seas: that is the old and true expression. Before the union, England was an island of itself; since the union, Scotland has made part of it.

Foster, J. (absente Wilmot, J.) This is a very clear case. The statute of limitations ought to be construed literally. I think it a noble, beneficial act. Interest reipublicæ, ut sit finis litium. There is no such kingdom as England now: plaintiff, therefore, while in Scotland, was not out of this realm. Besides, that is not now the phrase. Legislature, by altering it to "beyond the seas," at such a critical juncture, seem to have pointed at this very case of dwelling in Scotland. It is a great question, and very doubtful, whether the statute of non[*181] claim does not now extend to residents in Scotland. *As

at present advised, I should rather think it does. It is true, that since the union a writ of ne exeas regno has been issued from the court of chancery to prevent a man's going to Scotland: (Done's case, 1 P. W. 263. :) but the condition of the recognisance was a special case, not to go out of this realm, or to Scotland. Had these words been omitted, going to Scotland would not have forfeited the recognisance.

Judgment for the defendant.

In the saving clause, no actions on the case are mentioned, but actions on the case for words: therefore,

assumpsit, (a) by Chandler, an infant, by his guardian, against Vilett, the plaintiff declared upon two promises, that the defendant was indebted to him in 50%. and 121. for moneys by the said defendant before that time had and received to the use of the plaintiff; and being so indebted, the defendant promised to pay those moneys, and had not paid them, wherefore he brought his action. The defendant pleaded in bar, non assumpsit infra sex annos; to which the plaintiff replied, that at the time of exhibiting the bill, he was, and still is, an infant within the age of twenty-one years; to which the defendant demurred in law. And it was objected, that this action was limited by the statute of limitations of 21 Jac. I. c. 16. and the privilege of infancy is not saved by the statute in this action; for in the restraining and limiting part of the statute, this action upon the case is limited to six years, *and it is not excepted in [*182] the saving clause of the act; wherefore, no actions on the case are saved and excepted by reason of infancy out of the body of the act, except only actions on the case for words. And all other actions on the case are limited within the body of the act, and are not saved and excepted in the case of infancy by the saving clause; and therefore the plaintiff should be barred.

Sed non allocatur; for, by the court, this action on the case is within the equity of the saving clause of the act, though it be not expressed; for the intention of the statute was not to preserve a trivial action on the case for slanderous words in respect of infancy, and not to save for the infant an action for a real duty, as in this case. Wherefore, it was adjudged for the plaintiff.

Note.It was said, that the infant should have waited until his full age, because the six years were elapsed during his infancy, and therefore he could only pursue his action according to the words of the saving clause of the act, which is in six years after his full age; but this was not regarded by the court.

(a) 2 Saund. 117. g.

And it seemed to Saunders, that he may well pursue his action at any time within age, although the six years are elapsed. See, for this, the case of non-claims in fines, 2 Inst. 519. Cotton's

case.

In an action on the case,(a) the plaintiff declared, that the defendant's testator being in his life-time, viz. such a day,

indebted to the plaintiff in the sum of 201. for so [183] *much money before that time to his use had and received, did assume and promise to pay the same when he should be thereunto required; and that the testator did not in his life-time, nor the defendant since his death, pay the money, though he was thereunto required. The defendant pleaded, that the testator did not, at any time within six years, make such promise. The plaintiff replied, that he was an infant at the time of the promise made, and that he came not to full age till the year 1672; and that, within six years after he attained the age of twenty-one years, he brought this action; and so takes advantage of the proviso in the statute of limitations, 21 Jac. I. c. 16. that the plaintiff shall have six years after the disability by infancy, coverture, &c. is removed. The defendant demurred.

By Rigby, Serjeant. The reason of his demurrer was, because, in the said proviso, actions on the case on assumpsit are omitted. This act was made for quieting of estates and avoiding of suits, as appears by the preamble, and therefore shall be taken strictly. There is an enumeration of several actions in the proviso, and this is casus omissus, and so no benefit can be taken of the proviso. In a writ of error upon a judgment, brought 4 Car. I. in the court of Windsor, the judges held, that an action on the case for slandering a man's title is out of this act, because such an act was rare, and not brought without special damages. But Hyde, Ch. J. doubted. 1 Cro. 141. The law-makers could not omit this case unadvisedly, because it is

(a) 2 Mod. 71.