
    [Philadelphia,
    March, 1823.]
    THURSTON and others against FISHER, Administrator of DAWES.
    DEMURRER.
    The residence of a.plaintiff within the State of Wew-YorJc, at the time when the debt accrued, and since, does not bring him within the proviso of the act of limitations in favour of persons beyond seas. ■ -
    A party entitled to the benefit of the proviso, loses his privilege from the time he comes into the State: and a replication to a plea of the act of limitations, not stating that th e plaintiff had not been in the State within the time allowed by the act, is bad on demurrer.
    DecdaratioN io assumpsit on a policy of insurance, to which the defendant pleaded non assumpsit infra sex. annos. The plaintiffs replied, that at the time when the cause of action mentioned in.the declaration accrued, the plaintiffs, and each of them, were resident out of the State of Pennsylvania, in the State of New-York, and always since, have continued to reside there, at all times, and at present, and that neither of them ever returned to, or resided in Pennsylvania. - General demurrer.
    
      Wharton in support of the demurrer, made two points.
    1st. That the residence of the plaintiffs in the State of New-York does not bring them within the saying of the act of limitations.
    2d. Supposing, in general, the law to be in their favour on that point, yet the replication does not set forth the necessary facts,
    1st By the act for the limitation of actions, passed the 27th of March, 1813, Sect. 1, Purd. Pig. 419, all actions upon the case shall be brought within six years after the cause of such action, and not after. By the 5th section, it is provided, that if any person, entitled to such action, at the time of any cause of such action given or accrued, fallen, or come, shall be beyond the sea, then such person may bring his action, so as he brings the same within the time before limited, after returning into this province. This statute being beneficial, the proviso is to be strictly construed It gives an advantage to foreigners at the expense of our own citizens. If the phrase “beyond sea,” is literally construed, then New- York, where the plaintiff resided, is not beyond sea, though it may be reached by sea. If this, however, were sufficient, New-Jersey would also be beyond sea. But the intent of the legislature was, to protect those who were absent in a foreign country, .and are thus disabled from conveniently bringing suit. The saving clause does not apply to citizens of other states, who are under a common government, and who, by the constitution of the United States, are entitled to the privileges of citizens in the several states. Art. 4, sect. 2. The authorities are with the defendants, as well as the reason that governed the legislature. In King v.' Walker, 2 PI. Hep. 286, Scotland was held not to be beyond sea. This is the only English 
      case to be found on the point. In. this country the question has frequently occurred. In Gustine v. Brattle, Kirby, 299, absence-at Halifax, was held not to be over sea, which was the expression in the Connecticut statute. In Ward v. Hallam, 2 Dali. 317, 1 Yeates, 329, S. C., the point was made in the Supreme Court of this state, in the year 1794, whether the plaintiff’s being a citizen of, and resident in South Carolina, while the defendant was a citizen of, and resident in Pennsylvania, brought the plaintiff within the benefit of the proviso, and, after argument, the court gave judgment for the defendant. This case may be considered as settling the law on the subject, and the court will not, without very cogent reasons, depart from a solemn decision on the point in dispute.
    That provisos of this description are not favourably viewed by the legislature, is apparent from the repeal, by the act of the 11th March, 1815, of the proviso in the act of 26th March, 1785, sect. 4, relating to lands,- saving the right or title of persons beyond the seas, or from, and without the United States of America. This proviso in the act of 26 th March, 1785, sect.- 4, is one of several analogous enactments by the legislature showing, that by the words, beyond seas, were meant, out of the United States. Other acts to the same effect, are the act of 13th April, 1791, sect. 20, Purd. Dig. 574, concerning writs of errors, and appeals from the Registor’s Court, which saves the rights of persons out of the limits of the United States of America, for five years after their return into some one state of the United States. The act of 19th April, 1794, Purd. Dig. 292, concerning the descent of intestates estates, by the 18th section of which, any relation out of the limits of the United States, may claim within seven years after his return into the United States: and the act of the 4th April, 1797, sect. 4, Purd. Dig, 495, providing, that debts of deceased persons shall not be a lien longer than seven years, excepting debts due to persons out of the United States of America.
    
    2d. The replication is, at all events ba.d. It does not aver that the plaintiff has never come into Pennsylvania, since the cause of action accrued. A person who comes into the state, is within the meaning of the law, whether he comes to reside or not. In Strithorst v. Grceme, 3 Wils. 145, 2 JSl. Rep. 723, the court say, that if the plaintiff is a foreigner, and does not come into England, in fifty years, he has still six years after his coming into England to bring his action. The same principle was adopted in New-York. Ruggles v. Keeler, 3 Johns. 263. The Supreme Court of the United Státes, in Faw v. Roberdeau’s Executors, 3 Crunch, 174, decided, that if an act of limitations have a saving clause in favour of all persons out of the Commonwealth three years after their dis- • abilities are removed, a creditor resident in another state, removes his disability by coming'into the Commonwealth, even for temporary purposes: provided the debtor be at that time within the Commonwealth.
    
      
      C, J. Ingersoll, contra.
    1st. The argument of the defendant calls on the-court to legislate, by striking out words in this act, and inserting those expressed in other acts on different subjects. The construction to be given by the court, must be of the words used in this act, which are essentially different from the language of other acts of assembly. And, whatever may have been former impressions, the latter authorities are decisive, that the words “ beyond seas,” mean out of the jurisdiction of the state. In the case of Murry v. Baker, 3 Wheat. 541, which occurred in the year ISIS, it was determined by the' Supreme Court of the United States, after argument, that the terms “ beyond seas” in the proviso, or saving clause of a statute of limitations, áre equivalent to without the limits of the state, where the statuté is enacted; and the party who is without those limits, is entitled to the benefit of the exception. After this decision, no court in the United States ought to hesitate to adopt this construction; they ought all to coincide on a point in which the relative rights of the citizens of every state are concerned, when determined by the highest judicial authority of the general government. To the same effect as this case, are the words of C. J. Marshall, in Faw v. Eoberdeau’s Executors, 3 Cranch, 177. “ Beyond sea, and out of the state, are analagous expressions, and are to have the same construction.” The case of Ward v. Hallam, was decided mainly on the authority of Gustine v. Brattle, a very absurd case: because it was there held, that Halifax was not over sea, within the meaning of the Connecticut act. In Sleght v. Wane, 1 Johns. Case, 76, the Supreme Court of New-Yor/c held, that the defendant being within the British lines during the war, and departing with the British at the close of the war, was to be deemed out of the state, within the saving clause of the. act of limitations, during the whole time, because he was out of the jurisdiction of the state: he was quasi out of the realm, and no writ could run against him.
    2d. The replication is in the precise words of the act of assembly. It is in conformity with the precedent in 2 Chitt. Plead. 655, which uses the word, return. The replication in 3 Went-worth, 205, departs from the words of the statute 21 James I. The defendant'eannot, however, make this objection on a general demurrer. He ought to have demurred specially, or he might have rejoined and set forth such facts as would have shown that the plaintiffs had been within Pennsylvania, since the cause of action accrued, and six years before the suit. He also cited White v. Bailey, 3 Mass. Pep. 271.
    
      Eawle, in reply.
    It is an established rule in pleading, that the defendant may demur to part of a declaration, and take issue on the other part: but a plea, or replication is entire, and if it be bad in part, is bad for the whole, and in that case, the demurrer should be to the whole plea or replication. 1 Chitt. 643. On a general demurrer the whole law is brought before the court, and therefore, the principal point is to be decided. On this point the case of Ward v. Hallam, is conclusive: and the spirit of this case has been preserved by all subsequent acts of assembly. That case was deliberately settled, on principle: not on the authority of Gustine v. Brattle. The plaintiff relies on the decision of the Supreme Court of the United States, in Murry v. Baker: that case was on an act of the State of Georgia, which was not quite the same as our act. The other case of Faw v. Roberdeau’s Executors, was on an act of the State of Virginia: and it does not appear that the State Courts of Virginia had decided to the contrary. The State Courts are not bound by the decisions of the Supreme Court of the United States, in the construction of acts of assembly. In TheBank of the United Stales Fitzsimmons, 3 Binn. 342, in the question concerning the lien of judgments under the act of assembly of the 4th Jlpril, 1798, this court decided against the opinion of WASHINGTON, J. in the Circuit Court of this District, in the case of Hurst v. Hurst, 3 Binn. 347, note. So on the act of 3d of April, 1792, for taking up lands west of the Ohio and Alleghany, this court and the Supreme Court of the United States, persisted in different opinions. We rely, therefore, on the decision in Ward v. Hallam, as settling the construction of the act of limitations on this point.
   The opinion of the court was delivered by

Gtbson, J.

This act of limitation is to be construed according to the real intention of the legislature, at the time it was made; and we are enabled to ascertain this in some measure, by a recurrence to other acts of assembly. The act of the 26th of March, 1785,' which prescribes a limitation to actions brought to recover possession of land, has a proviso nearly in the words of the act under consideration. This, proviso is repealed by the act of 11th March, 1815, so far as it relates to persons “ beyond the seas, and from, and without the United States of America;” which clearly shows the understanding of the legislature on the subject; for if they had supposed any to be included within the proviso, who were out of the state, and not out of the United States, the repealing clause would have embraced them specially. That, however, was thought to be unnecessary. In the act of the 13th of April, 1791, which limits the time of bringing writs of error, the proviso is in favour of those who shall be out of the limits of the United States;” which must be understood to be intended as equivalent in meaning to the words “beyond sea.” In 1713, when the act under consideration was passed, there was no confederation of the states, and there was, therefore, no apt and definite term to express absence from the British possessions in America, and this I take to be the reason why the term beyond sea,” which means the same thing, was borrowed from the English law. “ By the English law,” says Sir Wm. Blackstone, “ children born in wedlock may, in some instances, be bastards: as if the husband be out of the-kingdom of England, (or as the law somewhat loosely phrases it extra quatuor maria,) for above nine months, so that no access to his wife can be presumed.” Now it is to be noted, that the notion our ancestors attached to being out of the kingdom was, absence beyond the four seas; the narrow seas, whether by right or by wrong, being claimed as a part of the British domain. Extra quatuor maria, was precisely the same meaning as the words beyond sea; and it is, therefore, difficult to discover on what ground the English courts extended the saving in their statutes of limitation to persons in Ireland, unless that country, being a separate kingdom, were considered to be no part of the realm. What effect the union of Great Britain and Ireland may have on the construction of this clause in their act, remains to be seen. When, however, our legislature came to pass the act of 1705, against adultery, instead of using the words, beyond sea, to signify absence from the British American possessions, as the subject required peculiar accuracy of expression, the object being to define a criminal offence, they declare that a married woman having a child born of her body, When the husband “has not been in some of the Queen’s colonies or plantations in this continent, betwixt the eastmost parts of New-England, and the southernmost parts of North Carolina,” within twelve months preceding the birth, shall be punished as an adultress. But in all acts passed after the union of the states, we find the saving extended only to those who are out of the United States. Why then extend the saving to those who are only out of the state ? That, beside being contrary tó the common Acceptation of the phrase, would extend the benefit to a class of persons who are not within the reason of the provision, The intercourse between the states cannot be suspended by hostilities, or impeded by the risques and uncertainly of communication by sea. By the constitution of the United States, the citizens of the union have equal privileges in each particular state, and tribunals are provided expressly for the impartial administration of justice between citizens of different states. The states are held together not only by a common political bond, but their intercourse is facilitated by a similarity of customs, language and laws; and in this respect there is a difference between them and the subjects of foreign governments, which might well be thought to call for a distinction, with respect to the necessity of prosecuting- a right of action. The only thing to fa-vour a contrary construction, is found in the saving clause itself, which allows the statute to begin' to run from the time of the party’s “returning into the province,” and hence it is inferred, that the party must necessarily have been within the saving, while he was barely out of the province. But it is plain from the context, that by returning into the province, the legislature meant returning from beyond sea, or to speak more accurately, into the British possessions in America.

The point, however, has already been decided by this court, on due consideration; and unless, therefore, it were palpably wrong, we would not be justified in departing from thát precedent. With respect to the case of Murray v. Baker, 3 Wheaton, 541, decided by the Supreme Court of the United States, I can only say, that all the decisions of that court are entitled to great respect; but unless in cases where it has appellate jurisdiction, and may revise and correct the decisions of the state courts, its opinions are not conclusive; and however proper its decision may have been with respect to the statute, on which it was called to put a construction, it can furnish no satisfactory guide to us in the construction of our own acts of assembly.

Beside the general principle involved by the demurrer, there is an objection to the plea, which this decision of the general question would render it unnecessary to consider. The plea merely states, that the plaintiff was resident out of the state, without specially denying that he had been in the state within the period material to the question; and we are all of opinion, that even if absence from the state were sufficient to satisfy the saving clause, still the want of this negative averment would render the plea faulty. There is no clearer rule of pleading, than that a party who wishes to bring himself within the benefit of an exception, must expressly aver every fact and circumstance necessary to do so, whether it be negative or positive. A party whose right of action is protected by his absence, loses his protection the instant he sets his foot within the prescribed limits; for from that time, the statute begins to run. The defendant must have judgment.

Judgment for defendant.  