
    [90] HALSEY against BEACH.
    ON OERTIOBABI.
    A plea of non-residence, at the time of trial, no exception, under the statute of limitations.
    The action below was brought by the defendant in this court, on a note of hand, of an old date, much beyond six years; and on the trial below, before the justice, a motion was made to nonsuit the plaintiff, on the ground of the statute of limitations, which motion was refused by the justice, and judgment rendered for, the plaintiff below. It appeared by the record, that the defendant below, at the time of the trial, lived in the State of New York. It was thereupon contended, by
    
      Mr. Van Arsdale, for the defendant
    here, that the defendant below, being a non-resident, came within [*] the provision of the 7th section of the act of limitations; and that the plaintiff below, had six years after the defendant below came into the State, to commence his action.
    
      Mr. M’ Whorter, for the plaintiff
    here, observed that because the defendant below, was a non-resident at the time of the trial below, it was no evidence that he was out of the State at the time the right of action accrued.
   By the Court.

— -The judgment must be reversed; the justice should have nonsuited the plaintiff below.

Another question, of some importance, was raised; but as the court gave no opinion thereon, it is useless to state it.  