2

be equivalent to "without the limits of the State." At a very considerable later period, the same high tribunal held, in reference to the act of limitations of Maryland, that the words "beyond seas," in that act, are manifestly borrowed from the statute of James; and that it had always been held, that they ought not to be interpreted according to their literal meaning; but ought to be construed as equivalent to the words "without the jurisdiction of the State." And the same exposition has been established in the courts of Maryland, South Carolina, and Massachusetts.5 In the act of limitations of Kentucky, the expression "out of the country" is substituted for the expression "beyond seas," and has been construed to mean "out of the State; " though the act is, notwithstanding, considered to run against citizens of Virginia, who visited Kentucky, after the cause of action accrued, while it composed a part of Virginia.7

1 Munay v. Baker, 3 Wheat. (U. S.) 341.

2 Bank of Alexandria v. Dyer, 14 Peters (U. S.), 141.

3 Brent v. Tasker, 1 Har. & M'Hen. 89; Pancoast v. Addison, 1 Har. & Johns. (Md.) 350.

4 Forbes v. Foot, 2 M'Cord (S. C.), 331. [And in Georgia, Denham v. Holeman, 26 Geo. 182.]

5 White v. Bailey, 3 Mass. 271; Byrne v. Crowninshield, 1 Pick. (Mass.) 263. In Massachusetts, a citizen of another State, who has never been in the Commonwealth, is not a person beyond sea, without any of the United States, and therefore is not within the saving clause of the statute of 1786. Whitney v. Goddard, 20 Pick. (Mass.) 304. [The cases from 3 Mass. and 1 Pick. cited by the author, turn upon what constitutes a return within the State, and apply to defendants only. The statute then as now (Rev. Stat. c. 120, § 6) excepted persons "absent from the United States."]

6 Musel v. Israel, 3 Bibb (Ky.), 510.

7 May v. Slaughter, 3 Marsh. (Ky.) 507. [In New Hampshire, "beyond seas" is construed to mean without the limits of the State. Galusha v. Cobleigh, 13 N. H. 79. And see also Drew v. Drew, 27 Me. (2 Heath) 389; Ward v. Cole, 32 N. H. 452. And this exception is applicable where the cause of action arises in another State, within which both parties then reside and so continued to reside until after action brought. Hatch v. Spofford, 24 Conn. 432. And in Maine, Massachusetts, New Hampshire, Michigan, and Vermont both absence and residence out of the State must concur. Hall v. Nasmith, 28 Vt. (2 Wms.) 791; Bell v. Lamprey, 52 N. H. 41; Campbell v. White, 22 Mich. 178; Drew v. Drew, 37 Me. 389; Langdon v. Doud, 6 Allen, 423. And that absence must be alleged to be continuing, and not merely from one date to another, since that will be held to be but a single day. Ibid. A debtor must be considered "to be absent from and reside out of the State," within the meaning of the exception in the statute of limitations, when his domicile within the State is so broken up, that it would not be competent to serve process upon him by leaving a copy there. And for that purpose there must be some place of abode which his family or his effects exclusively maintain, in his absence, and to which he may be

201. But in Pennsylvania, the term "beyond seas" is construed to mean without the limits of the United States, and, therefore, a citizen and resident of South Carolina was held not to be within

expected soon, or in some convenient time to return, so that a copy being left there, and notice in fact proved, the plaintiff may take a valid judgment. Hackett v. Kendall, 23 Vt. (8 Washb.) 275. It must be his domicile, which can be in but one place, his home which he had adopted with the intention of remaining, and to which, when absent, he intends to return. Campbell v. White, 22 Mich. 178. But where one, a citizen of Connecticut, leaving his family and property behind, goes into another State two successive years, on business, and remains there eight months each year, intending at his departure and during his absence a temporary absence only, and to return to his place of residence, and does actually so return, he was held not to be "without the State," within the meaning of the statute, whereby the time of such absence is to be deducted from the running time of the statute. Williams, C. J., dissentiente. Gage v. Hawley, 16 Conn. 106. And see also Gilman v. Cutts, 7 Foster (N. H.), 348; Bucknam v. Thompson, 38 Me. (3 Heath) 171; Garth v. Robards, 20 Mo. (5 Bennett) 323; Lane v. National Bank, 6 Kan. 74. The question of residence is one for the jury from the circumstances. Conrad v. Nall, 24 Mich. 275; Ware v. Gowen, 111 Mass. 526. Absence in California for years, the family of the debtor meanwhile remaining on the homestead in New Hampshire, is to be deducted from the time limited by the statute. Brown v. Rollins, 44 N. H. 46. But not a temporary absence or on business. Pruley v. Waterhouse, 1 Clarke (Iowa), 498. Even though it be for several consecutive months, the debtor still retaining his domicile. Collester v. Hailey, 6 Gray (Mass.), 517; Langdon v. Dowd, 6 Allen (Mass.), 423. Absence in the military service does not prevent the running of the statute, barring criminal proceedings. Graham v. Commonwealth, 51 Penn. St. 255. The absence must be such that such service cannot be had as would render a judgment against the defendant valid. Ward v. Cole, 32 N. H. 452; Ward v. Howe, 38 N. H. 35. In Illinois, the statute ceases to run against a claim while the defendant is out of the State, though only temporarily, and with the intention to return. Vandlandingham v. Huston, 4 Gilm. (Ill.) 125. A corporation in another State is not a person beyond the limits of the State, within the meaning of the Arkansas statute (Dig. c. 91, § 13), but is a person within the State, within the meaning of the fourteenth section of that act. Clarke v. Bank of Miss., 5 Eng. (Ark.) 516. In New York, the exception in the statute (2 Rev. Stat. 227, § 27) applies to natural persons only, and not to corporations. Faulkner v. Del. & Rar. Canal Co., 1 Denio (N. Y.), 441. If a person, whose home is permanently established within the State of Maine, during the time, goes out of the State, and there makes a contract, and a cause of action thereon accrues against him before his return home, such contract does not come within the provisions of the 28th section of c. 146, of the Rev. Stat. that "the time of his absence shall not be taken as any part of the time limited for the commencement of the action." Crehore v. Mason, 10 Shep. (Me.) 413. The disability of being "beyond sea," under the statute of limitations of Ohio, is removed by death, and the statute commences running against the heirs, on the death of the ancestor, whether the heirs are under disability or not. Ridley v. Hettman, 10 Ohio, 522; Whitney v. Webb, 10 Ib. 513. And see Markle v. Burch, 11 Gratt. (Va.) 26. But where the debtor resides out of the State at the time the cause of action accrues, and never returns, but dies abroad, the statute commences running at the time of granting letters testamentary, or of administration in the State from which he was absent at the time of his death. Benjamin v. De Groot, 1 Denio (N. Y.), 151.]

the exception. We have already seen that it has been solemnly decided by the Supreme Court of the United States, that the true construction of the words "beyond seas" is "out of the State." It is, therefore, necessary to advert to the effect of a decision by the highest tribunal in the country, where a State court has adopted a different construction in relation to its own statute, to remove an embarrassment which seems to exist. And here we have recourse to the views of the Supreme Court of the United States, in a case in which the statute of limitations of Tennessee was in question, in relation to its exception in favor of "persons beyond seas; and where it was said, that the courts of Tennessee had given the same construction to these words as the courts of Pennsylvania. Mr. J. Johnson, who gave the opinion of the court, observed, in relation to this point of the case, as follows: "That the statute laws of the States must furnish the rule of decision to this court, as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a position that no one doubts. Nor is it questionable, that a fixed and received construction of their respective statute laws, in their own. courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious, that this admission may, at times, involve us in seeming inconsistencies; as where States have adopted the same statutes, and their courts differ in the construction. Yet that course is necessarily indicated by the duty imposed on us, to administer as between individuals the laws of the respective States, according to the best lights we possess of what those laws are. This court has uniformly manifested its respect for the adjudications of the State tribunals, and will be very moderate in those claims which may be preferred on the ground of comity. Yet, in a case like the one now occurring, it cannot acknowledge the objection to go further, at present, than to examine the decision formerly rendered, on the construction of these words. We have reflected and heard arguments on our former decision, and not a doubt has been enter

1 Ward v. Hallam, 2 Dall. (Penn.) 217; s. c. 1 Yeates (Penn.), 329. So of a resident of New York. Thurston v. Dawes, 9 Serg. & Rawle (Penn.), 285. [So in Missouri, the term is held to mean, without the limits of the United States. Marvin v. Bates, 13 Mo. 217; Fackler v. Fackler, 14 Mo. 431; Keeton v. Keeton, 20 Ib. 530. And in Michigan, Darling v. Meacham, 2 Greene (Iowa), 602. And in the statute of wills of Illinois, Musson v. Johnson, 24 Ill. 159.]

tained except on the question, how far we were bound to surrender an opinion, under the actual state of difference existing between our construction and that of the State from which this cause comes.” As the case had to go back upon other grounds, the court waived, for the time, a positive decision on the point, trusting that the courts of the State from which the cause came would, in time, furnish such lights upon the fixed local law upon the subject, as would enable the Federal courts to come to a satisfactory conclusion upon the question.1

202. A note was discounted at the Branch Bank of the United States, at Richmond, in Virginia; and it arrived at maturity, and was regularly protested for non-payment; an action being brought by the bank against the indorser, to recover the amount of the note, more than five years from the date of the protest, the defendant pleaded the statute of limitations. It was held that the right of action was barred by lapse of time, the plaintiffs not being, in the sense of the saving act, "beyond seas," or out of the country. The contract having been made at Richmond, at their bankinghouse there, between the president and directors of the Branch Bank and the defendant, the fact of there being an office of discount and deposit of the Bank of the United States at Richmond, and of the residence of the president and directors of the branch being fixed there, must be considered, with reference to the contract in question, as fixing the residence of the corporation itself in Richmond, and not in Philadelphia, the place of the principal bank, so far as the saving of the statute above mentioned applies to the locality of the plaintiff.2

203. An action was instituted by the Bank of Alexandria, in the county of Alexandria, against the defendants, residents in the county of Washington, in the same district, for money loaned. The defendants pleaded the statute of limitations of Maryland, which prevails in that part of the District of Columbia, and which limits such actions to three years from the date of the contract. The plaintiff replied, that he was "beyond seas," claiming the benefit of the exception in the statute in favor of persons within that description. The court held that the county of Alexandria,

1 Shelby v. Guy, 11 Wheat. (U. S.) 361. See as to the rule of construction in general of the Federal courts, in questions arising under the statutes of limitation of the respective States, ante, Ch. II. § 25.

2 Bank of the United States v. M'Kenzie, 2 Brockenb. (Cir. Co.) 393.

in the District of Columbia, cannot be regarded as standing in the same relation to the county of Washington that the States of the Union stand in relation to each other. The counties of Washington and Alexandria, together constitute the territory of Columbia, and are united under one territorial government. They have been formed by the acts of Congress into one separate political community; and the counties which constitute it resemble different counties in the same State; and do not stand towards one another in the relations of distinct and separate governments. Residents of the county of Alexandria were not "beyond seas," in respect to the county of Washington.1

204. The before-mentioned exception is not confined to subjects who may occasionally leave the country, but it is general, and extends to foreigners who are constantly resident abroad. Thus it was adjudged, that the statute of James only begins to run against a plaintiff, a foreigner, from his coming to England. So that if he did not go to that country for many years after the commencement of the cause of action, he will still be entitled to six years, from the time he does go there, to bring his action.2 And if he never should go to England, he has always a right of action, after six years have elapsed.3 But if one of several plaintiffs be abroad, and the other in England, the action must be brought within six

1 Bank of Alexandria v. Dyer, 14 Peters (U. S.), 141. [Lafonde v. Ruddock, 24 Eng. L. & Eq. 239.]

2 Strithorst v. Græme, 3 Wils. 145; s. c. 2 W. Bla. 723; Chomqua v. Mason, 1 Gall. 342; Ruggles v. Keeler, 3 Johns. 261; Hall v. Little, 14 Mass. 203; Paine v. Drew, 44 N. H. 306.

3 Chandler v. Villett, 2 Saund. 121; Bulger v. Roche, 11 Pick. (Mass.) 36. [Von Hemert v. Porter, 11 Met. (Mass.) 210; McMillan v. Wood, 29 Me. (16 Shep.) 217; Wakefield v. Grant, 3 Eng. (Ark.) 488; Erskine v. Messicar, 27 Mich. 84. But the Arkansas statute of January 14, 1843, placed residents and non-residents of the State on the same footing, and since then mere non-residence does not avoid the statute bar. Brian v. Tims, 8 Eng. (Ark.) 597. And where a plaintiff, at and ever since the time when the cause of action accrued, has lived out of the State, the fact that the note upon which suit was brought was executed and delivered to the plaintiff within the State, and has ever since remained within the State, in the hands of his agent, does not bar the plaintiff's right of action. Wilson v. Keller, 3 Ib. 509. In Missouri, absence of the plaintiff from the State does not prevent the running of the statute in favor of the defendant, who is an inhabitant of the State. Smith v. Newby, 13 Mo. 159. So in Georgia. Wynn v. Lee, 5 Ga. 217. And if a debtor comes within the jurisdiction of the State even temporarily, and afterwards departs from and resides without, the running of the statute is suspended. Whittelsey v. Roberts, 51 Mo. 120. Absence is not an exception in Indiana. Jones v. Hays, 4 M'Lean (U.S.), 521.]