ceptions, or savings in former statutes, in favor of persons "beyond seas." The unlimited latitude, it was thought, granted to persons "beyond seas," was considered by the legislature as unreasonable; and it could constitute no actual grievance, or just cause of complaint, if they were reduced to the same standard as the citizens of Maryland. Neither was the repeal a violation of any constitutional obligations of the State; nor was any obligation of contract at all violated or impaired by it. The statute of New Jersey contains no exception in favor of plaintiffs abroad, only in respect to land titles.2

§ 205. The received construction in England was, that the excep tion in the statute of James in respect to persons "beyond seas," extended only to the case where the creditors were beyond sea, and not where the debtors were, because persons entitled to actions are only mentioned. But by the 19th section of the statute, 4 Anne, c. 16th, it is enacted that if any person against whom any action lies for seamen's wages, trespass, detinue, trover, replevin, action of account, or upon the case, or such other actions, as are mentioned in the third section of the statute of James, be beyond sea, at the time that such action accrued, the plaintiff shall be at liberty to bring his action against him within the same time after his return, as is limited for such action by the statute of James. Before the statute of Anne, it was in vain attempted upon general reasoning, in many cases, to introduce an exception in favor of the plaintiff, in a case where the defendant was out of the realm. A most reasonable exception undoubtedly; yet until this statute, such a case in England formed no exception, and the statute of limitations barred the action; and the

joint contractors, beyond seas, against whom there is a cause of action, prevents the running of the statute. Fannin v. Anderson, 9 Jur. 969; s. c. 14 L. J. Q. B. 282; Townes v. Mead, 29 Eng. L. & Eq. 271. But held otherwise in New Jersey. Bruce v. Flagg, 1 Dutch. 219. And in New York, in Brown v. Delafield, 1 Denio, 445. But this last case is overruled in Denny v. Smith et al., decided in 1859, and not yet reported. If one of several joint parties be capable of suing when the cause of action accrues, the statute runs against all. Jordan v. McKenzie, 30 Miss. (1 George), 32; Masters v. Dunn, id. 264. But contra, Harlan v. Seaton, 18 B. Mon. (Ky.), 312; Seay v. Bacon, 4 Sneed (Tenn.), 99.

1 Frey v. Kirk, 4 Gill & Johns. (Md.), R. 509.

2 See Stat. of New Jersey, App. Ixix. and Taberrer v. Brintall, 2 Harr. (N. J.), R. 262; Beardsly v. Southmayd, 3 Green (N. J.), R. 171.

exception, it seems, does not extend to defendants in Pennsylvania.1 The acts of limitation of Maryland, of 1715, and 1765, are, by judicial construction, to be taken together, and to receive an interpretation to carry into effect the plain and obvious intent of the legislature, which was, that the limitations should not attach against a creditor, where the debtor was absent from the State at the time of cause of action accrued.2 Where, therefore, the plaintiff and defendant are both beyond sea, at the time the cause of action accrues, and both return after the cause of action accrues, the statute will begin to run when both have returned, though both be not within the jurisdiction at the same time; for the impediment may be removed as to the one while it remains as to the other; and after it has been removed as to both, the time limited for bringing the action commences.3

§ 206. The word return, as applied to an absent debtor, it has been held, applies as well to persons coming from abroad, as to citizens of the country going abroad for a temporary purpose, and then returning. But the coming from abroad must not be clandestine, and with an intent to defraud the creditor, by setting the statute in operation, and then departing. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting the debtor.5 It was said, in a case in Massachusetts, that a person must return with a design to dwell within the jurisdiction of the Commonwealth; but that was not the point before the court; and the court, in a subsequent case considered, that such a return as would give a party a reasonable opportunity to commence his action was sufficient. A return even for a temporary purpose, will do away with the exception of absence; if not a secret, concealed, or clandestine presence, of which

8

1 Nathans v. Bingham, 1 Miles (Penn.), R. 164.

2 Hysinger v. Bultzell, 3 Gill & Johns. (Md.), R. 158.

8 Vans v. Higginson, 10 Mass. R. 29.

4 Ruggles v. Keeler, 3 Johns. (N. Y.), R. 267; Bulger v. Roche, 11 Pick. (Mass.), R. 36; [Crocker v. Arey, 3 R. I. 178; State Bank v. Seawell, 18 Ala. 616. The exception applies where the debtor leaves the State with the purpose of never returning. Ayres v. Henderson, 9 Texas, 539. If a party plaintiff residing out of the State, commences an action within the State, it is a constructive return, and the statute begins to Yoast v. Willis, 9 Ind. 549].

run.

5 Fowler v. Hunt, 10 Johns. (N. Y.), R. 464.

6 White v. Bailey, 3 Mass. R. 273.

Byrne v. Crowninshield, 1 Pick. (Mass.), R. 263.

8 Faw v. Roberdeau, 3 Cranch (U. S.), R. 174.

the creditor can take no advantage. His presence must be so public and under such circumstances, as the creditor may, by ordinary diligence, make an arrest.1

§ 207. Now, in Massachusetts, in order to avoid the exception in the statute of Massachusetts, of being out of the commonwealth, the defendant is bound to show, that the creditor knew of his coming into the commonwealth, or having attachable property therein, so as to have had an opportunity to arrest him, or make an attachment, or that his returning or having property was so public as to amount to constructive notice or knowledge, and to raise the presumption that, if the creditor had used ordinary diligence, the defendant might have been arrested, or his property attached.2 Under the Revised Statutes of that State, if a new promise is made by a debtor when out of the commonwealth, and he does not leave property therein, which can be attached by the ordinary process of law, the statute will not begin to run upon the new promise until after his return into the common

1 Hysinger v. Bultzell, 3 Gill & Johns. (Md.), R. 158; Hill v. Bellows, 15 Vt. R. 727; [Didier v. Davidson, 2 Sandf. (N. Y.), Ch. 61; Dorr v. Swartwout, 1 Blatch. (U. S.), 179; Ford v. Babcock, 2 Sandf. (N. Y.), Sup. Ct. 518; Cole v. Jessup, 2 Barb. (N. Y.), Sup. Ct. 309; Didier v. Davidson, 2 Barb. (N. Y.), Ch. 477. Where the defendant was in the State two or three days on business, and was publicly about in the principal streets, and transacted business at a store directly opposite the plaintiff's, this was held a sufficient return to set the statute in motion. Randall v. Wilkins, -4 Denio (N. Y.), 577. In Vermont, where both parties reside out of the State, and the claim is barred by the statute of the State in which they both reside, if the defendant be temporarily within the State, it is a return, and the plaintiff may sue. Graves v. Weeks, 19 Vt. (4 Wash.), 178. But see Hale v. Lawrence, 1 N. J. 714, where it was held (McCarter, J., dissentiente), that the action would not lie, having been barred by the statute of the State where it accrued. Where the debtor at the time the cause of action accrued, was residing out of the State, proof that since then he had often been a few miles within the limits of the State, on business, with personal property which might have been attached, without any proof that the plaintiff had knowledge of it, does not show a return, wherefrom the statute will commence running. Crosby v. Wyatt, 10 Shep. (Me.), 156. But in Alabama, it is held, that the debtor must have resided six years in the State since his return, in order that he may avail himself of the exceptions in the statute; and, if there have been repeated absences, six years since the first return, deducting the time of the absences. Smith v. Bond, 8 Ala. 386. So in Illinois. Chenot v. Lefevre, 3 Gilm. (Ill.), 637. And in New York, Burroughs v. Bloomer, 5 Denio (N. Y.), 532. Ford v. Babcock, 2 Sandf. (N. Y.), Sup. Ct. 518. But see contra, Dorr v. Swartwout, ubi sup. ; Berrien v. Wright, 26 Barb. (N. Y.), 208; Harden v. Palmer, 2 E. D. Smith (N. Y.), 172. In Maine, the disability to sue, arising from absence from the United States, is removed by a return to any one of the States. Varney v. Groves, 37 Me. 306.]

2 Little v. Blunt, 16 Pick. (Mass.), R. 359.

wealth. And the provision in the statute, that where the debtor, at the time when the cause of action accrued, was out of the commonwealth, and did not leave attachable property therein, the statute will not begin to run until his return, applies to persons who have never been in the commonwealth, as well as to citizens who have been absent for a time.2

1 Ibid.

2 Ibid. If a debtor, absent from the State, would avail himself of the statute on the ground of his having, in the State, property subject to attachment, it is incumbent on him to show this fact; and it is not sufficient to show, that he has deeds of land on record, without showing a title in himself. Hill v. Bellows, 15 Vt. R. 727. [The defendant's ownership of the property must be notorious to such an extent that it would not escape a reasonable search and inquiry on the part of the plaintiff. Wheeler v. Brewer, 26 Vt. (5 Washb.), 113. The provision in the Revised Statutes of Massachusetts, c. 120, § 9, that the time of a party's absence and residence out of the State shall not be taken as any part of the time limited for the commencement of the action against him, does not apply to a case in which the action was barred by the statute of limitations that was in force before the Revised Statutes went into operation. Wright v. Oakley, 5 Met. (Mass.), 410. But if the right of action was not then barred it does apply. Darling v. Wells, 1 Cush. (Mass.), 508; Mooar v. Bates, id.; Willard v. Clarke, 7 Met. (Mass.), 435; Brigham v. Bigelow, 12 id. 268; Seymour v. Deming, 9 Cush. (Mass.), 527. In New Hampshire, the statute of limitations is no bar to an action where the defendant has resided without the State, unless he has had attachable property within the State during the full uninterrupted term of six years. Dow v. Sayward, 14 N. H. 9. In Missouri it has been held, that the concealment which prevents the running of the statute need not be fraudulent, but that a change of residence several times by the debtor without informing his creditor is a concealment within the meaning of the statute. Harper v. Pope, 9 Mis, 402, A debtor, who has been absent more than the period of statutory limitation, may, in an action against him on his return, avail himself of a set-off. Hewlett v. Hewlett, 4 Edw, (N. Y.), Ch. 7.]

CHAPTER XX.

NEW PROMISES AND ACKNOWLEDGMENTS.

§ 208. It is a construction of law agreeable to the true notions of equity, that if a debtor should discharge a just demand against him after the proper remedies for the recovery of it have been barred by the statute of limitations, he cannot recover back the money, on the ground that the payment of it was without consideration. The plain reason is, that there is a consideration of the highest kind, a consideration consisting of the moral obligation every debtor is under to pay his creditor. So, if a person make a promise that he will pay a debt he justly owes, for the recovery of which all legal and equitable remedies are barred by the statute, such promise renders him liable to an action, the promise being founded upon the same legal consideration of an obligation existing in foro conscientia. The promise may be either express, or it may be constructive. It is constructive, by a simple acknowledgment of the justice of the debt in question, so made as to amount in the eye of the law to an implied promise. It is true, there have been many instances in which it has been held, that the revival of a debt by an acknowledgment of its justice and continued existence, has been put upon the ground of its repelling a presumption of payment, the debt being fallaciously presumed to be extinguished

1 Evans's Pothier, 414; and ante, § 7.

2 See Le Roy v. Crowninshield, 2 Mason (Cir. Co.), R. 151.

3 "The doctrine," says Mr. Justice Story, "proceeds upon the ground not of a strict legal right in the creditor, which he may enforce against the will of the debtor, but upon the notion that there still exists, notwithstanding the statutable prescription, a moral obligation binding in foro conscientia, which, if recognized by the debtor, repels any imputation that the transaction is nude pactum, without any consideration." Le Roy v. Crowninshield, supra. [But, it seems, a person incapable of binding himself by an original promise, cannot revive a debt by a new promise. Thus, one who has been found, on inquisition, an habitual drunkard, cannot revive a debt by a new promise. Hannum's Appeal, 9 Barr (Penn.), 471. But a new promise, by an infant, for necessaries, revives the debt. Williams v. Smith, 28 Eng. Law & Eq. 276.]