32 Ga. 253 | Ga. | 1861
By the Court
delivering the opinion.
It is claimed by counsel for the plaintiff in error, that the statute of limitations of this State does not bar this suit for two reasons:
1. That this is a statutory liability.
2. That, as the defendant was not a citizen of the State when the debt was created, and has constantly resided out of
There is nothing in the first position. The debt, which is the foundation of this proceeding, is not a statutory liability, but a simple contract debt. Counsel in the argument seemed to be impressed with the opinion, that because his proceeding to enforce the debt was by attachment, being a remedy specially created by statute, that, therefore, the debt was a statutory liability. In this we differ from the counsel. The remedy for the enforcement of a debt, whether given by statute or existing at common law, does not alter, change, or affect the character of the liability; that remains as it was originally created, no matter what form of proceeding the creditor adopts to enforce its collection.- A statutory liability is one that depends for its existence and creation upon the special enactment of a statute, and not upon the contract of the parties.
3. Then, is the case within the exception of the Act of 1806—-Cobb, 565—as claimed by counsel in his second position? We hold that it is not. The words of the exception are, “ When the defendant shall remove out of the jurisdictional limits of this State.” Clearly, the case is not within the words of the act, for the defendant has not removed out of the State. He has never been'a citizen of the State since the creation of the debt; was not at that time: was then,- and has been ever since, a resident of the State of Alabama. To fall within the words of the act, the defendant must have been a citizen of the State at the time of the accrual of the debt, or after and subsequently to have removed out. Neither is the case within the spirit of the exception, nor is there any reason why the exception should be extended by construction beyond the plain import of the words of the act:
Counsel for plaintiff in error referred to, and relied on various adjudications of different State Courts,‘on exceptions in their several statutes of limitation, which he claims to be in point, and authorities in support of his position. We can not agree with the counsel. The exceptions in the several statutes on which these decisions 'were predicated, in every instance were altogether different, and not at all analogous to the words of our act. Take, for example, that of Alabama, “If any person, against whom there is or shall be any cause of action, as is specified in the preceding section of this act, is or are, or shall be, out of this State at the time of the cause of action accruing.” In the Mississippi Act, the words of the exception are exactly the same as that of the Alabama Act. In Massachusetts, the words are, “ If, at the time when any cause of action mentioned in this chapter shall accrue against any one, he shall be out of the State.” In -Missouri, “ If, at the time when any cause of action specified in this article accrues against any person, he shall be out of the State.” In Vermont, “ If, at the time when any cause of action of a
Judgment affirmed.