
    NATHANS v. BINGHAM.
    April 5, 1836.
    
      Demurrer.
    
    The proviso or exception in the statute of limitations (act of the 27th of March 1713, sect. 5) relative to persons who are absent “ beyond the sea.” does not extend to defendants; who may therefore plead the statute, although they may have been beyond seas during the time which constitutes, under the statute, a bar to the action.
    THIS was an action on the case brought by Jacob Nathans against William Bingham, to recover damages for a malicious prosecution, alleged to have been instituted in 1826 by the present defendant against the plaintiff. Tire pleas were, the general issue and the statute of limitations. To the first the plaintiff joined issue ; to the second plea (not guilty within six years) lie replied, the absence of the defendant in parts beyond the sea, viz. in Montreal, Upper Canada, from the time of the accruing of the cause of action laid in the narr. to (he institution of tin’s suit. Tire replication contained six distinct heads, but the facts laid in each were substantially the same. The defendant demurred, both specially as to the form of the replication, and generally to its substantial sufficiency in law.
    The argument of the special demurrer was postponed, and its consideration was ultimately waived by the court.
    
      Bhhuy, Jun., (with whom were D. P, Broten, J. R. IngersoU and Sergioid) in suppuit of the general demurrer,
    contended, that the exception in the statute of limitations (act of March 27, 1713, sect. 5, Pun!. Dig. ,582, tJit. of 1830) relied on by the plaintiff in his replication, (ltd net embrace tire case of the defendant’s absence “ beyond the sea,” but was confined to that of the plaintiff’s. He cited ; Hall 
      v. Wybouro, Carth, 136; S, C., 2 Salk. 420; Cheevely v. Bond, Carth. 226 ; S. C., 1 Show. 341; Schlosser v. Lesher, 1 Dali. 411, and was stopped by the court.
    
      Hirst and C. J. Ingersoll, for plaintiff.
   The Court on this day ordered judgment for the defendant on the general demurrer.  