The principal questions presented upon the record, arise out of the exception in the statute of limitations, relating tо absence from the State: “ If any person, against whom there is, or shall be any cause of action, as is specified in the рreceding sections of this act, is, or shall be, out of this State at the time of the cause of such action accruing, or any timе during which a suit might be sustained on such cause of action, then the person, or persons, who is, or shall be, entitled to such action, shаll be at liberty to bring the same, against such person, after his return into this State; and the time of such person’s absence shall not be аccounted, or taken as part of the time limited by this act.” [Clay’s Dig. 327, § 84.]
The defendant in error contends, that the statute would commenсe running, as soon as the deceased returned to the State, if his visit was notorious, so that he could be sued, and having commencеd, would continue to run, notwithstanding his subsequent departure from the State. As it is the established construction, thatthe statute of limitations, when it begins tо run, continues to run, notwithstanding an intervening disability to sue, if our statute had merely provided, that suit might be brought after the return of the debtor into the State,it is probable the true construction would have been, that the statute commenced running- from that time, if the return was not clandеstine, but open and notorious, so that the creditor might, if he thought proper, institute a suit; and having commenced, would continue to run, notwithstanding the debtor afterwards left the State. Such was the construction put upon a statute of Massachusetts, almost in the precise language of this part of the exception in ours. [Little v. Blount,
The exception in our statute does not stop here, but cоntinues further, and provides, “ and the time of such person’s absence, shall not be accounted, or taken, as a part of thе time limited by this act.” The construction contended for, renders this clause of the statute wholly inoperative, as without it, it is perfeсtly obvious, that the time of the absence from the State, would not be
By the Revised Statutes of Massachusetts, C. 120, § 9, a similar provision to the one now under discussion, was introduced, and considered in Battle v. Fobes,
Our opinion therefore is, that to make the bar of the statute effectual, the debtоr must have been within the State, subject to be sued, during the whole period provided as a bar, but it is not necessary that it should be continuоus, it may be composed of different portions of time, if the aggregate makes the period of time, which is designated as a bаr, which in this case would be six years.
We are next to consider, what is meant by the terms, “ out of this State, at the time of the cause of such action accruing,” and « return into this State.”
The manifest object of the statute was, to prevent the act from operating as a bar, unless during the entire period, the debt- or had been subject to be sued within the State, and it would seem very clear, that a residence in the Indian nation, though within the chartered limits of the State, but into which the process of our Courts could not be sent, or executed, would not be a “ return into the State,” within the meaning of the statute. The clear meaning of the clause is, that the debtor must return within the jurisdiction of the State, so that he may be sued. Indeed the statute is express, that the creditor “ shall be at liberty to bring the same.
A similar construction has been given to other statutes of limitations, in which the letter of the act has been departed from, to give effect to the clear intent of the statute. Thus the term “ beyond seas,” in the saving clause, has been held to mean beyond the limits of the State. [Murray’s Lessee v. Baker,
It seems therefore perfectly clear to us, both upon reason and authority, that the time of Bond’s residence, in that part of the Indian nation, now Sumter county, before the jurisdiction of the State Courts was extended over it, cannot be computed as part of the time, during which he was in the State, nor his removal there, a “ return to the State,” within the meaning of the statute.
There can be no doubt, that the admission made by Bond in the schedule made to obtain the benefit of the insolvent debtors law, was an admission of the existence of the debts there enumerated ; and whatever might have been their character before, after that time they ceased to be “ open accounts.”
Let the judgment be reversed and the cause remanded.