#### John B. Earle *v.*William Dickson & Charles M’Dowell, adm’rs of Charles M’Dowell, dec’d.

From Burke.

A residence in another state, is not a residence *beyond seas*within the saving of the act of limitations.

Where one covenants for himself, without mentioning his heirs, to conve}7 land on a certain event, and dies before that event happens, his administrators are not liable ; and it seems that the only remedy Is against his heir in Equity.

Assumpsit upon a written contract, *dated in the*year 1803, to convey three hundred acres of land on the Mississippi $ “ the titles to be made as soon as the Indian claim to said land, shall be extinguished.”

The declaration contained an averment that the Defendant’s intestate *died before the Indian claim was extinguished,*and the breach assigned was, “ that the Defendant’s had not made to the Plaintiff a title to the land.” Pleas non assumpsit, and the statute of limitations. To the latter, replication, *“*that the Plaintiff was, and had ever been a citizen and inhabitant of the State of South, Carolina, and bad not been, at any time, from the 1st of January, 1818, to the commencement of this suit, within the State of North-CaroJina.” It was admitted that the Indian title to the land was extinguished in the year 1819. There was a general demurrer to the replication, which was overruled by his honor Judge RueetN; a verdict was found for the Plaintiff, upon the plea of non as-sumpsit, and judgment rendered accordingly, from which the Defendants appealed.

*Badger,*for the Defendants.

*17Halt,, Judge.

A principal question in this case arl-ses upon tiie construction of the ninth section of the act of 1715, (Rev. *ch.*2,) which gives further time to Plaintiffs beyond seas, to bring their actions, provided they do so within a certain time after their return, and that question is, whether the words *beyond*seas, mean that Plaintiffs *not beyond*seas, but without the limits of the State, are within the saving j if that meaning is given to them, it is not because that is their natural import, they certainly have another meaning, to-wit, what they plainly express, 1 *W. Bl. Rep.*286, and so the Court thought in *Ward*v. *Hallam,*2. *Dall.*217. In that case, the Plaintiff was a citizen and resident of South-Carolina, and it was held, that he was *not beyond seas,*consequently not within the saving of the statute of limitations. See also *Kirby’s Rep.*299. In Maryland, it seems to have been ruled otherwise, 1 *Harris*& *M’Hen. Rep.*89, and also in the Supreme Court of the United States, 3 Wheaton, 541.

Our act of limitation, was passed in the year 1715, the first, year (as wc learn from our statute book) of our colonial legislation. The territory then inhabited, and the number of colonists, were very limited ; we were rather an adjunct to Virginia, than a distinct colony ; we had little or no intercourse with any country, except Great-Eritain. It is most probable, in this state of things, that the. saving in favor of Plaintiffs, was inserted in favor of British creditors, and not in favor of creditors who were only separated from their debtors by colonial limits.

If this was originally the fact when the act passed ; if the saving was intended, as is expressed, only for British creditors and others, really and literally *beyond*seas, shall we now give it a quite different and opposite construction, and allege, as a reason, that the state of things is much altered since the enactment of the law, or shall we not rather wait, until it is the pleasure of the Legislature to make the alteration, as has been done in Massachusetts, 3 *Mass. Rep,*271, and in New-York, 3 *Johnson’s Rep, 263.*

*18This question came before tiie six Judges of this state* in the year 1811, 2 *Murph. Rep.*23. They held, that the saving in the statute of limitations, as to Plaintiff's beyond seas, did not extend to persons resident in other states of the union. They considered that it would be mischievous, that citizens of other states, particularly adjoining ones, with whom we have the greatest intercourse, should be permitted, at any remote period, to bring suits against the citizens of this State.

It does not appear, from an examination of the contract sued upon, that there has been any- breach of it— The Defendant’s intestate, died before the Indian title became extinct, in the year 1819, he therefore was prevented from a compliance by the act of God. *Gwillam’s*Bacon, *Condition q.*1 *Co. Lit.*218.

Nothing can be charged against the Defendants. On this point, however, it is unnecessary to give an opinion.

I am of opinion, that the rule for a new trial should be made aboslute.

Henderson *Judge*

M’Dowell, by a written contract, bound himself to convey certain lands to the Plaintiff, (describing them) when the Indian title thereto should be extinguished. *M3 Dowell*died before the Indian title was *extinguished;*and this action is brought against his executors, for a breach of the agreement. All these facts appear upon the face of the declaration.

I am at a loss to see wherein this contract has been violated, either by *McDowell*in his life time, or by his executors since his death.

When a person contracts to do, what Lord *Coke*calls a local act, by which I understand, an act that requires the concurrence of another, he has time during life, to perform it, unless hastened by request, but he must do it at his peril during. life, (that is even without request) if be does not, his contract is *violated;*if however, he has-a specified time to do it in, and he dies before the expiration of that time, the contract is not violated, for the *19act of God injures no man. Therefore, *Coke*advises that his heirs be bound. *(Coke. Litt.*216, a.)

But it is otherwise, as to what he calls transitory-acts, such as do not require the agency of the other party, as the payment of money, or the like. If no time be specified, he shall do it presently in some cases, in others at a convenient time, and that without request. Where a time is fixed, and the person making the engagement dies before that time, it shall be done by his executors $ for these acts may as well be done by the executors as the party, and the obligations devolve on the executors, whether named or not, but it is not so as to heirs *•,*the obligation does not devolve on them, unless bound by their ancestor, nor is the ancestor or his executors bound for their acts, unless he binds himself for them, as in the case recommended by *Coke,*before *cited;*that is, when he covenants, that he or his heirs shall do a local act, within a specified time, and he dies within the time, his executors are then bound that the heir shall do it. But this case is much stronger than where a person binds himself to do a local act, within a specified time, where even ho is excused by death. For here he binds himself to do an act, after another act is done, over which he has no control, and he dies before this other act is done. It cannot therefore be pretended, that *McDowell*violated his agreement in his life-time, or that his administrators have since his death, for they have no estate to convey, and it was never designed, that they should make the estate. If the testator had bound himself, without limitation of time, and died without performance, his wrong would have been thrown upon his estate. But here, I cannot perceive that any wrong has been done by any one. In this case, I think that the lauds in question descended *tú*the heirs at law, burthened with the Plaintiff’s equity, and in this view of the case, complete justice will be done. The personal representatives have done no wrong, and the personal estate is the proper fund, in the first instance, *20!!1jl|ie compensation for tbe wrongs of the owner, whe-flier founded on tort or on a breach of contract. If this action was sustained, those entitled to the personal es-might be disappointed, *when*the only wrong, if any, has been committed by the heir, in not performing the trust.

The judgment for the Plaintiff should be reversed, and the judgment on the record arrested *;*but, as there is a motion for a new trial on another ground, I am *contení to*reverse the judgment, a new trial will follow of course, on the other ground. I concur with'Judge Haix, in his Construction of the saving in our statute of limitations,r

Tayxor, Chief-Justice, concurred.