#### WILLIAM S. *BROWN, pl'ff*in error, *vs. GEORGE W. BICKNELL, def't in error,*

*■ Error to Rock county.*

A plea of tho statute of limitations, is a plea to the remedy; it is a mere municipal regulation, formed upon local policy; and a foreign statute cannot be pleaded in our courts.

Whore the debtor is out of the Territory at the limé when the cause of action accrues, the suit may, according to the 24th section of the statute of limitations, bo commenced here within the time limited, at any time after he comes into the Territory.

Where the maker of a promissory note resided out of the Territory at the time when it became due, and afterwards removed into the Territory, although the note has been due more than six years, it is not barred by the statute of limitations unless six years have elapsed since the maker came into the Territory before the commencement of the action; but to prevent the statute from running in such case, the debtor must have been out of the Territory when the cause of action accrued,

Brown brought an action of assumpsit against Bicknell in the Rock District Court, upon the following promissory notes and drafts drawn in Providence, Rhode Island, viz:

One note dated 15tli February, 1838, due at six months;

One do. dated 21st March, 1833, due atfour months;

One do. dated 18th May, 1833, due atfour months;

One do. dated 21st May, 1833, due at sixty days;

One do. dated 22d June, 1833, due at sixty days;

A draft accepted by defendant, dated 22d April, 1833, payable sixty days after date;

A draft drawn by defendant, dated 7th June, 1833, payable on presentation.

The action was commenced in 1841. The defendant pleaded the general issue, and gave notice that the action was barred by the statute of limitations. From the bill of exceptions it appears that the notes and drafts sued on, were executed at Providence, in the State of Rhode island, and that when they became due, the defendant was out of the Territory. It also appears that the defendant came into the Territory for the first time in July, 1837, about four years before the commencement of the suit. On the trial, the court below instructed the jury, at the request of the defendant, that the 24lh section of the act in relation to the time of commencing actions, was not applicable to the case, and to disre*66gard it. Under the instructions of the court, the jury returned a verdict in favor of the defendant. A motion was made for a new trial and overruled, and judgment rendered on tho verdict.— Brown sued out a writ of error to reverse this judgment, and the only error assigned is in the decision of the court in applying the statute of limitations to the case.

Wells for pl’ffin error:

The demands upon which this suit was brought, had been due more than six years at the commencement of the action, but when the cause of action accrued, the defendant was out of the Territory. He came into the Territory for the first time in July, 1837, about four years before the suit was commenced. In such case, tho action is not barred until six years after the debtor comes into the Territory. Stat. Wis. 261,262, sec. 24. Our statute is similar to those of New York and Massachusetts upon the same subject. Tho decisions of the courts of those States show conclusively, that under the facts of this case *the*statute of limitations is no bar to tho action. 2 Rev. Stat, N. Y., 225. Rev. Stat. Mass. 700, sec. 9. *Buggies vs. Keeler,*3 John. Rep. 263. *Byrne vs. Crowninsheld,*1 Pick. 263. *Dwight vs. Ciarle,*7 Mass. Rep. 515. *White vs. Bailey,*3 do. 217. See also Story’s Conflict of Laws, 482 to 488. *Bell and others vs. Morrison,*1 Peters, 351.

Wiiiton for def’t in error:

The Court is called upon to give a sound construction to our statute of limitations. But for the exception in the 24th section of the act, tho action would be clearly barred, and there would be no controversy in the case. The principle sought to be established by the plaintiff will go thus far: a debt may be contracted abroad and become forever barred by the limitation of a foreign State, but if the debtor'comes into the Territory at any remote period, the demand may be revived against him and recovered.— We contend that the 24th section was intended to apply to con* tracts made in the Territory, or the contracts made abroad in reference to the laws of the Territory to be here executed; and that this construction should be adopted by the court. The courts in modern times, view statutes of limitations much more liberally than formerly, and they often regret the constructions given by the old decisions, See *Bell and others vs. Morrison,*1 Peters, 360. *Buggies vs. Keeler,*3 John. Rep. 265.

Our statute is not precisely the samo as those of Now York and *67Massachusetts, and this Court is not bound by the decisions in those states. The statute of limitation is a local municipal regn" lation, founded upon the polity of the state, and the decisions upon it violate no principle of justice, however they may be given.

Wells, in reply.

The Court is asked to give a construction to the statute contrary to its palpable import and meaning. The Court has no such extensivo power, but is bound to give it a sound construction, and carry into effect its obvious meaning and intent. In doing this; the Court will be aided by the decisions in other States upon the same question under similar statutes.

Opinion of the Court by

Judge Miller:

The plaintiff in error brought suit against the defendant in error on a promissory note, in the District Court for the county of Rock. The note was dated at Providence, Rhode Island, on the 15th day of February, 1833, and became due in six months thereafter; and it was made to appear by the pleadings and sustained by the evidence, that the defendant came into the Territory about four years before the time when the suit was brought. It was claimed on the part of the plaintiff, that under the twenty-fourth section of the act concerning the time of commencing actions,, which provides, that if at the time when any cause of action mentioned in the act shall accrue against any person, he shall be out of the Territory, the action may be commenced within the time therein limited therefor, after such person shall come into the Territory, he was not barred of his recovery. It is very clear, that if it were not for this provision in the statute, this claim would have been barred in six years.

The plea of the statute of limitations, is a plea to the remedy; 13 Peters, 329; 6 Wendell, 475; 4 Cowen, 528, 530; 1 Gallis, 371; 2 Mason, 351; 14 Peters, 141. Astatuteoflimitationisa mere municipal regulation, founded upon local policy; and a foreign statute cannot be pleaded in our courts: 3 John. 263; 13 Peters, 312. The disability which entitles a party to the benefit of the above provision, must exist when the right of action accrues; that is, when the right of action accrues, the debtor must be out of the Territory: 5 Cowen, 74; 14 John. 338; 9 Cowen, 296; 5 Cowen, 231; 4 Cowen, 508; 2 Cowen, 626; 17 John. 511. Under similar provisions in the statutes of limitation in force in the states of New York and Massachusetts, the courts of *68those states have decided, that in cases of debts accrued against persons out of those states, who afterwards came into those states, the statute of limitations cannot be pleaded in bar until the said debtors are in the said states for the term of six years: *Dwight vs. Clark,*7 Mass. Rep. 515; *White vs. Bailey,*3 Mass. Rep. 271; *Byrne vs. Crowninshield,*18 Mass. Rep. 263; 3 John. Rep. 263; Story’s Conflict of Laws, 482 to 488; 1 Pick. Rep. 263; also in the case of *Bulger vs. Bache,*11 Pick. Rep. 36, where a debt was contracted in a foreign country, between subjects thereof, who remained there until the debt became barred by the statute of limitations of such country, it was decided, that the statute of limitations of Massachusetts could not be pleaded in bar to an action upon the debt, brought within six years after the parties came into that state.

Weils, for pl’if in error.

Whiton, for def’t in error.

The judgment of the District Court of Rock county, which was in favor of the defendant, must be reversed.