
    * Henry W. Dwight, Administrator, versus Benoni Clark.
    To a plea of non assumpsit infra sex annus, the plaintiff replies that, when toe cause of action accrued, the defendant was out of the state, and did not return until within six years before the commencement of the action, and left no property, &c.
    The defendant rejoins, that he never was an inhabitant of or resident in the state, but in Connecticut, where the promise was made, until he came into the state, as alleged in the replication. Upon a demurrer to the rejoinder the plaintiff had judgment.
    Case upon several promissory notes made by the defendant to Gurdon Ellsworth, the plaintiiPs intestate, dated at Ellington, the 4th of August, 1800, and payable on the 1st of March, 1801. The defendant pleads the statute of limitations in bar. The plaintiff replies, that, when the cause of action accrued, viz., &c., the defendant was without the limits of the commonwealth, and did not return until within six years next before the commencement of this action, viz. until the last day of March, 1805; and that he did not leave property that could be attached by the common and ordinary process of law. The defendant rejoins, that, at the time of making the several promises in the declaration mentioned, he was not, nor previous to that time ever had been, an inhabitant of or resident within this commonwealth, but was, and ever had been, an inhabitant of the state of Connecticut, where the said promises are alleged to have been made, and that always since that time, and until the last day of March, 1805, he has resided without the limits of this commonwealth, and that since the said last day of March aforesaid, his commorancy has been at West Stocklridge, in the said county of Berkshire.
    
    To this rejoinder the plaintiff demurs, and the defendant joins in demurrer.
    
      Sedgwick, in support of the demurrer,
    contended that this action, upon the facts shown in the pleadings, would not be barred by the statute,  even if the fourth section had never been enacted. The statute could not attach, so as to have operation to bar a contract, the performance of which it was not in the power of the party claiming under it to enforce by law. This was the case so long as neither the debtor, nor any property of his, were within the commonwealth or the jurisdiction of the Court. Nor will it be said that, when the defendant came into the commonwealth, the statute had a retrospective effect, by referring back to the time when the right of action accrued.
    [*516] *Butthe replication brings the case within the provision of the fourth section of the statute, and indeed is within the very words of it. That section enacts that “ If any person or persons, against whom there is, or hereafter shall be, any cause of suit, for every and any of the species of action herein before enumerated, who, at the time the same accrued, was without the limits of this commonwealth, and did not leave property or estate therein, that could, by the common and ordinary process of law, be attached, that then, and in such case, the person that is entitled to bring such suit or action, shall be at liberty to commence the same within the respective periods before limited, after such persons return into this government.”
    A construction against the plaintiff would be to give to foreigners a preference and exemption beyond citizens of the commonwealth The case of White vs. Bailey, 
      
       shows that a liberal construction in favor of creditors is to be given to the exceptions contained in this fourth section of the statute.
    
      Hulbert, for the defendant,
    argued that the statute of limitations were good and useful provisions of law, and on sound principles of public policy to be favored. The law presumes, if a creditor neg Iects to demand his debt within the time limited, that it is paid, and therefore bars any action for its recovery ; and this presumption is as strong in favor of the defendant, as if he had been the whole time an inhabitant of the commonwealth.
    If the plaintiff would bring his case within the exception cited, he must be held strictly to the terms of it. But the exception applies only to those persons who have before been resident in or inhabitants of the commonwealth. The return into this government must intend that there had been a previous leaving of it; and no person can be said to have left property or estate within the com mon wealth, unless he had himself before been within it.
    * Sedgwick, in reply.
    The statute raises no presump- [ *517 ] tian that the debt has been paid, unless the creditor has had an opportunity during the time to institute a suit for its recovery.
    
      
      
        Stat. 1786, c. 52.
    
    
      
       3 Mass. Rep. 271.
    
   The opinion of the Court was delivered by,

Sedgwick, J.

The question in this case arises on the statute lot the limitation of personal actions.

The action is on several promissory notes. The defendant pleads non assumpsit infra sex anuos. The replication alleges, in substance, that, at the time the cause of action accrued, the defendant was without the limits of this commonwealth ; that he had left therein no property or estate that could, by the ordinary process of law, be attached ; and that he did not return into the commonwealth until six years before the commencement of the action. The rejoinder alleges, in substance, that the defendant did not “ return ” into the commonwealth, not having been an inhabitant thereof; but an inhabitant of another state. To this there is a general demurrer and joinder. The question is, whether the period of limitation commenced previous to the defendant’s coming into the state.

I do not think that the legal presumption, in relation to a statute of limitations, is, that the debt has been paid, if there be no evidence of its existence within the period of limitation ; but that the law, from considerations of public policy, had provided that such debts shall not be recoverable in courts of law ; laying out of the question any consideration whether the debt be or be not paid.

On the one hand, it is the duty of one who promises another, to fulfil his engagement, and for that purpose to resort to him ; on the other, it is not the duty of the creditor to look after his debtor.

The counsel for the plaintiff makes two points — 1. That the statute would not bár this action, if there was not the exception, within the provision of which it was intended, by the replication, to bring this case ; and, 2. That it is within that exception.

[*518] *1. It might not, perhaps, be unreasonable to suppose it was the intention of the statute, even without the clause relied upon, that the period of limitation should not commence until it was in the power of the plaintiff to enforce payment within this jurisdiction. But upon this point the Court give no positive opinion; because,

2. We all think the case comes clearly within the exception. The replication states the very case, in all its parts expressed in the act to constitute an exception. The defendant was without the limits of the commonwealth, nor did he leave any property within it, that could be attached.

But it is said that by the words “ leave ” and “ return, ” used in the act, it is evident that the legislature intended to confine the exception to inhabitants of the commonwealth. We all, however, think it a much more reasonable construction that the exception was intended as general, and comprehending all persons who are without the commonwealth, and have not attachable property within it, so that the statute shall not begin to run, until the defendant is, either by his person or property, subject to original process.

Rejoinder adjudged bad.  