
    BOND AND ANOTHER v. JAY.
    
      Msent....ToBB, J.
    
    Uoir in^IFe Maryland státuie of limitao'f"«suci^ac«counts a? it «ciiandize «chant, their “ factors ami «which ^re «not residents « province,”>!S applies tode’aimwchant681*' creditor resiMar i?'“d ami a dubio" residing in And in order to take the caso out of the notOPsúfficici!t to aver thauhe turnéT tof" .¿ame, ami w¡.s state of Man - land after the aecraeí "tnd" ínoi’e" than"'3 years before suit81’8 the
    ERROR to the Circuit; Court fox' tlie district of Maryland in an action of assumpsit brought by Borid and Brooks against Jay, surviving partner of Samuel J ay and. Gabriel Christie, trading under the firm of Samuel Jay and Company, upon an account for mern di z e sold and delivered. The Defendant, Jay* the statute of limitations of Maryland, 1715, 2S’ w^'ch limits actions of assumpsit to three years after tiie cause ’of action shall have accrued.
    To this plea the Plaintiffs replied « that at the ,time «when the several sums of money in the declaration frientioned grew duo, viz. on the 20th of March, 1799 and long before, to wit, on the 27th of November, 1797, *'? ^rorn thence until the said 20th of March, and from -ho said last mentioned day until the suing forth the oriS*Ha* wx‘it xn this suit, the Plaintiffs were merchants,, “.carrying on trade and merchandize xmder the namic and firm of Bond and Bx*ooks, and residing and car-rJ>ng on trade without the limits of the district afore, said, and of the state of Maryland, viz. at Phiiadef, pifia, in the state of Pennsylvania; aftd that at the several times aforesaid the said Jay and Christie were mci’chants, trading under the firm of Samuel ant^ Company', and l’csiding and carrying on «trade at and within the district aforesaid, and that on “tIlc several days, and on sundry days, from the-of tliose days to the second of those days the Elalfttiffs were engaged in mutual trade and merchan“dize with the said Jay and Christie, by reason of wbichtraile, and of and concerning-the same, the said several sums of money in the declaration men«iioned grew due to the Plaintiffs, and this they are «ready to verify; wherefore,” &c.
    To this replication the Defendant rejoined, that the Plaintiffs ought pot to have and maintain their said action by reason of any thing alleged in their replication aforesaid; because, protesting, that the said several sums of money in the declaration aforesaid mentioned,. do not concern the trade and merchandize between merchant and merchant; and also protesting that the Plaintiffs have not continued to reside without the state of Maryland and district aforesaid since the ing and growing due of the said several sums of money, and until the suing,out the original writ in this cause; yet, for answer to the said replication, the said Samuel Jay says that true it is that at the time of the contracting and growing due of the said several sums of money, he, the said Samuel and the said Christie, were merchants and residents within the state and district of Maryland aforesaid, and continued to reside therein until the decease of' the said Christie, and the said Samuel has continued to reside therein ever since; and that the several sums of money in the declaration mens tioned had become due and were payable on the 20th of March, .1799, to wit, at the district aforesaid; and that afterwards, to wit, on the 20th of May, 1799, the Plaintiffs returned to, came, and were within the'statc aforesaid, to,wit, at the district aforesaid; and that after-wards, to wit, on tiie 18th day of October, 1799, the said Joshua B. Bond came to, and was within the said state, viz. at the district aforesaid; and that the original writ in this cause was sued forth on the 19th day of May, 18Ó9, and not before; and so the said Samuel Jay saith that three years and more .had elapsed and expired, after the return of the Plaintiffs and of the said Joshua B. Bond to, and after their being within the said state and district, and after , the" contracting and growing due of the said several sums of money, and before' the suing out of the said original writ in this cause, viz. at the district aforesaid; and this the said Samuel is ready to verify, wherefore,’’.Ac.
    To this rejoinder there was a general demurrer and joinder. The Court below overruled the demurrer, apt! adjudged'the rejoinder to be good; whereupon judgment wras rendered for the Defendant, and the Plaintiffs sued out their writ of error.
    The act of assembly of Maryland, 1715, ch. 23, enacts, /‘that all actions of trespass quare clausum fregit, “ all actions of trespass, detinue, sur-trover, or replevin “for taking away goods or chattels',' all actions of ac- “ count, contract, debt, book, or upon the case, other 
      
      «than suck accounts as concerns the trade or merchandise “ between merchant and merchant, their factors and ser«vants, WHICH 'ABE NOT RESIDENTS WITHIN THIS “ province, all actions of debt for lending,” &c. &c. “ shall be commenced or sued within the time and limi«tation hereafter expressed, and not after,” &c.
    The third section contains a clause saving to persons within the age of 21 years, feme covert, rwn compos mentis, imprisoned, or beyond seas, the right of suing within the respective times limited after the removal of their several disabilities.
    The cause was argued by Harper for the Plaintiffs in error, and Pinkney, Attorney General, for the Defendant in error.
    
      February 22d....
    
   Marshall, Ch. J.

delivered the opinion of the Court as follows:

This suit was brought by the Plaintiff, a merchant of Pennsylvania, against the Defendant, a merchant of Maryland, upon an account which grew out of their trade with each other as merchants. The Defendant pleaded the statute of limitations, to which the Plaintiff replied that the Plaintiff, who resided in the state of Pennsylvania, and the Defendant were employed in mutual trade and merchandize, of and concerning which the said several sums of money in the said declaration mentioned grew due. The Defendant rejoins that the Plaintiff came within the state of Maryland in 1797, and that the original writ in this cause issued on the 5th of July, 1808, and not' before. The Plaintiff demurred, and upon argument the demurrer was overruled and the bar adjudged to be good.

A writ of error has been sued out to the judgment of the Circuit Court, and the questions in the cause are,

1. Is the replication good in itself?

2. Does the rejoiner avoid the replication and sustain the plea:

These questions depend on the act of limitations passed in . 1715 by the legislature of Maryland. The inhterial part of that act is in these words: 44 Be it en-44 acted, That all actions, &c. other, than such accounts s< as concerns the trade of merchandize between mer44 chant and merchant, their factors and servants which 44 are not residents within this province,” &c. 44 shall be 44 commenced or sued within three years ensuing the 44 cause of such action, and not after.”

By the Plaintiffs it is contended, that if either party reside without the province the case js within the exception : — by the Defendant, that to bring the case within the exception both parties must reside' without the province.

. It is so unusual for a legislature to employ itself m framing rules which are to operate only «n, contracts made without their jurisdiction, between persons residing without their jurisdiction, that Courts can never 1)9 justified in putting such a construction on their words if they admit of any other interpretation which is rational and not too much strained.

This, it is thought, may be done, in the case no\y to be decided. The words 44 which are not residents” refer, it is said, to both parties, Plaintiff and Defendant* They comprehend all the persons previously enumerated. Let this be conceded.

Then read the exception as if the word 4* both” or 44 all” were inserted, it will stand thus: 44 other than such accounts as concerns the trade or merchandize between merchant and merchant, their factors and servants which are not both or all residents within this province.’* The plain meaning of the sentence so read would be that accounts between merchant and merchant either of whom resided out of the' province would come Within the exception. It is admitted that without the Word 44 both” br 44 all,” the more obvious meaning of the.sentence is that for which the Defendant contends. Yet it will bear the same construction without, as with cither of those words, and the subject-matter of the law so clearly requires this interpretation that the Court thinks it may be made.

The rejoinder is founded on the third section of the act which contains the usual exceptions in favor of infants, &c. and allows .three years after the removal of the impediment to bring their suit.

It is. contended that since the act of limitations runs against a person beyond sea from the time of his coming into the country, so from analogy it ought, to run against a non-resident merchant from the time of his coming, though for a mere temporary purpose, within the country.

The Court cannot assent to the correctness of this reasoning. To render it applicable, the rejoinder ought tp have averred that the Plaintiff had become a resident of the state of Maryland more than three years before the institution of the suit. Not having done so, the words of the exception have never ceased to be applicable to che Plaintiff? and, consequently, the statute has never commenced to run.

It is the opinion of this Court that the Circuit Court1 erred in overruling the demurrer of the Plaintiff to the rejoinder of the Defendant.in this cause, and that the judgment be reversed and annulled, and the cause remanded with instructions to render judgment on the said .demurrer in favor of the Plaintiff, and that further proceedings may be had therein according'to law.

Judgment reversed.  