#### William Vans *versus*John Higginson.

To a plea of the statute of limitations, to an action upon sundry promises, 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 Stales*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. The replication was adjudged bad, and the defendant had judgment

This was an action of the case upon a promissory note made to the plaintiff by the defendant. The declaration also contained the common money counts.

The defendant pleads in bar, “ that the cause or causes of action in the said counts supposed did not, at any time within six years next before the commencement of the said action, accrue to the plaintiff. And this he is ready,” &c.

The plaintiff replies, that he ought not to be barred, &c., because he says, “ that at the time of making the several promises in the declaration mentioned, the plaintiff and the defendant were in parts beyond sea, *viz.,*at *Paris,*in the kingdom or empire of *France*; and the plaintiff further says, that he never was, at any time thereafter-wards, in the *United States*of *America,*at the same time that the defendant was also within the same, or at the same time that he, the said defendant, had any property in this commonwealth to be attached by the common and ordinary process of law, until within six years before the commencement of this action, *viz.,*until the 1st day of September, 1808. And this,” &c.

*38To this replication the defendant demurs generally, and the plaintiff joins in demurrer.

The demurrer was argued at the last March term in this county, by *Savage*for the defendant, and *Prescott*and *Selfridge*for the plaintiff.

*Savage.*

Our statute of limitations (1) has the very words of the *English*statutes of 21 *Jac.*c. 16, and of 4 *Anne,*c. 16, in the first of which disabilities of plaintiffs, and in the other those of [ * 30 ] defendants, are provided against. The construction * of the *English*statutes, as adopted in *Westminster Hall,*will then govern in the construction of our own. When the statute begins to run, it runs over all mesne acts. (2) So, in the case at bar, the plaintiff was here more than six years before the action was commenced, and after the cause of -action accrued; and therefore the statute began to run, unless the impediment of the defendant’s absence, and his having no property here, is saved by the clause in the fourth section of the statute. But the impediment is not thus saved, because the defendant was within the commonwealth after the cause of action accrued, and more than six years before action brought; both which facts are admitted by the replication.

This reasoning is fortified by the case of *Hickman*vs. *Walker,*(3) which is very like the case at bar, and by that of *Smith, Exr.*vs. *Hill, Exr.*(4) If one plaintiff be abroad, and the other in *England,*the action must be commenced within the six years. (5) If these decisions are not followed, the plaintiff might be here one half the time, and the defendant the other half, and thus the operation of the statute would be prevented forever. — The cases of *White*vs *Bailey*(6) and *Bow*vs. *Warren*(7) support the construction for which we contend.

*Prescott*and *Selfridge.*

The statutes of limitations are founded on the presumption of payment. The common law bars actions on a similar presumption, after a longer time. But no such presumption can exist, where the parties cannot have been together. The statute never runs against a creditor, while his debtor is without the *United States,*and has no property to be attached. There is no case in the English books like the one at bar. When both the *39parties were abroad, the statute did not operate; nor when the plaintiff was absent, though the defendant was here; nor when the plaintiff was here, and the defendant absent, leaving no property. (8)

(1)

*Stat.*1786, c. 52, § 4.

(2)

 Strange, 556, *Gray*vs. *Mendez*

(3)

*Willes’s Rep.*27.

(4)

 1 *Wils.*134.

(5)

 4 *D. & E.*516, *Perry*vs. *Jackson.—Ibid.*300, *Doe*vs. *Jones.*

(6)

3 Mass. *Rep.*273.

(7)

6 *Mass. Rep.*329.— See also 1 *Selw. N. P.*133, *in*notis, and 2 *Atk.*614, *Sturt*vs. *Mellish.*

(8)

7 *Mass. Rep.*515, *Dwight*vs. *Clark.*

*Curia.*

The object of the replication in this case is to make an exception, which the statute of limitations has not * made, and which we therefore cannot support. When [ * 31 ] the defendant 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 insufficient, *(a)*

*Costs for the defendant.*

ADDITIONAL NOTE.

[See *Nathans*vs. *Bingham,*1 *Miles,*164. — *Reid*vs. *Geoghehan, Ibid.*204. — *Green*vs. *Johnson,*3 *Gill & J.*389. — *Frey*vs. *Kirk, 4 Ibid.*509. — *Paterson,*&c., vs. *Ludlow,*6 *Halst.*354. — *Battles*vs. *Fobes,*16 *Pick.*532,19 *Pick.*578.

To bring a case within the exception in the statute of limitations which applies to absent parties, the *•presence*of the debtor within the state, after bis return, must be such as to enable the creditor, with ordinary diligence, to avail himself of it. A con cealed and clandestine presence for any period is not sufficient. *Hysinger*vs. *Ballzell,*3 *Gill & J.*158. *—Little*vs. *Blunt,*16 *Pick.*359.

If a debt was contracted abroad, between citizens of the foreign country, and barred by its statute of limitations while the parties remained there, a suit may still be maintained within six years from their coming into *Massachusetts.*— *Bulger*vs. *Roche,*11 *Pick.*36.

Where one makes a new promise to pay an outlawed claim, when absent from the state, leaving no attachable property in it, the statute of limitations does not be.gin to operate till his return to the state. — *Little*vs. *Blunt,*9 *Pick.*488.

The statute of limitations of *Massachusetts*provided, that where the debtor, when the cause of action accrued, was out of the state, and did not *leave*attachable property therein, the statute should not begin to run till his *return.*Held applicable to one who had never been in the state. — *Little*vs. *Blunt,*16 *Pick.*359.

So also to a new promise, made out of the state, whether before or after the original promise was outlawed. — *Ibid.*

A citizen of another state, who has never been in *Massachusetts,*is not a person “ beyond sea, without any of the *United States,"*within the saving clause of the statute of limitations. (See Rev. *St.*c. 120, s. *6.)—Whitney*vs. *Goddard,*20 *Pick.*304.— F H.]

(a)

**[This decision is wholly unsupported'by authority. The statute does not begin to run until the defendant is within the country next after the cause of action has accrued, or has property here, liable to attachment; *(White*vs. *Bailey,*3 *Mass. Rep*273. — *Dwight*vs. *Clark,*7 *Mass. Rep.*515. — *Byrne*vs. *Crowninshield,*1 *Pick.*263; nor then, until the plaintiff is here also at a time when he can commence a suit. — *Hall*vs. *Little,*14 *Mass. Rep.*203. — *Wilson*vs. *Appleton,*17 *Mass. Rep.*180. — *Strithorst*vs. *Greene, 2 Bl.*723. 3 *Wilson,*145. The statute does not begin to run while the parties are abroad, although they may be in the same country, where the plaintiff might have sued, if he had chosen so to do. — *Williams*vs. *Jones,*13 *East.*439. — But If one of several plaintiffs be in the country after the cause of action arises, and the defendant be here, or have property here, the statute will begin to run from the time he is able to commence a suit. — *Perry*vs. *Jackson,*4 *D. & E.*516. —■ If the plaintiff be here at the time the cause of action accrues, and the defendant be here, or have property here, so that the plaintiff can commence a suit, and the plaintiff afterwards goes abroad, the statute begins to run; so that, if no suit be commenced within six years, the statute will be a bar.— *Smith*vs. *Hill,*1 *Wills.*334. — Ed.]