
    GENERAL COURT,
    OCTOBER TERM, 1803.
    Harper vs. Hampton.
    Where there arfe issues in fact and in law, the last ihall he tried first
    Where to a plea of limitations the plaintiff replies *beyond seas,’ to wit, in another state, a rejoinder of the act of limitations of such other state is a departure from the plea, and fatal on demu> rer.
    Quere. Whether a contract made in another state, to which limitations there would be a bar, can be recovered on here, if such defence be properly pleaded?
    This was an action of assumpsit. The declaration contained nine counts. 1st. Count, on a special agreement, viz. That before and attbetime of the agreement, to wi{¡, on the 25th of August 1794, at Columbia, in the state of South Carolina, to wit, at Baltimore county, a certain Jacob Rumph was seized in fee simple and possessed of 150,000 acres of land, situate in the fork of Edisto, in the said state of S. C. and being so seized and possessed did, for certain good and valuable considerations him thereunto moving, and by a certain letter of attorney duly executed under liis hand and seal, authorise and empower the plaintiff, as attorney for him the said Rumph, and in his name, to sell and dispose of the said lands, and by agood deed of conveyance to convey the same to such person, and for such sum of money, or other payment, as lie the plaintiff should think fit, and the money, or other payment, to arise and grow due from the said sale and land, to take and receive to and for his the plaintiff’s own proper use and behoof, of which the defendant had notice. And that afterwards, on the same day, &c. at ^Columbia, in the state of S. C. aforesaid, to wit, at Baltimore county aforesaid, the said Rumph being sq seized, &c. and the said plaintiff being by him the said Rumph so authorised, &c. a conversation was had and moved between the plaintiff and defendant of and concerning the sale and purchase of the said land; and it was then and there agreed by and between the plaintiff and defendant, that the plaintiff should forthwith sign, seal, and duly execute, to a certain John Hall of the city of Philadelphia, a good and suiBcient deed of conveyance, in the name of the said Rumph, and by virtue of the power ani] authority aforesaid, of and for the said land, &c. and should then and there deliver the said (leed to the defendant as an escrow, to be by him the defendant delivered to the said Hall, in ease he the said Hall should purchase the said land from the plaintiff, by and through the agency of the defendant, and should well and truly pay, or secure to be paid, the purchase money therefor to the (lefen? dant, to and for the use of the plaintiff, and not otherwise. And further*, that the defendant forthwith, after receiving the said deed, should use his endeavours to sell the said land for the plaintiff to the said Hall, through his means and agency, for a good and buita-hie price; and in case of making such sale, should receive and take the purchase money of the said land, or other payment therefor, for the use of the plaintiff, and should thereupon deliver the said deed to the said Hall, and should forthwith pay and deliver the said purchase money, or other payment of and for the said land, to the plaintiff, and well and truly account with and to him therefor, whenever after he the defendant should by the plaintiff be thereunto required. And further, that the plaintiff should allow and pay to the defendant, to be deducted'and retained out of the purchase money aforesaid, all such reasonable and necessary expenses as by him the defendant should be incurred, paid or laid out, in and about the premises; and should also give to him the defendant a sufficient indemnity and .counter security for all such warran-tees or guarantees, as he the defendant should necessarily and properly enter into in and about the pre/ mises. In consideration of the performance of all which stipulations, &c. by the plaintiff, by him agreed as aforesaid, to be done and performed on his part, the defendant then and there, to wit, &c. undertook, and to the plaintiff faithfully promised to do and perform all, &c¿ by him the defendant o’n his part stipulated and agreed as aforesaid, to be done and perform-ed. And the plaintiff averred, that he did then and there, to wit, &c. sign, seal and execute, in the name and as thb attorney of the said Rumph, and by virtue of the letter of attorney and power aforesaid, a good deed of conveyance of and for the said land, to the said Hall, in fee simple, sufficient in law to convey the same land to him the said Hall, and his heirs and assigns, and the said deed did then and. there deliver to the defendant, as an escrow, to be delivered to the said Sail, in the manner, and on. the terms and conditions, and for the purposes aforesaid; and that the defendant afterwards, to wit, on the 1st of Octo-her, in the year aforesaid, at Philadelphia, in the state of Pennsylvania, to wit, at Baltimore county aforesaid, in pursuance and by virtue of the agreement aforesaid, did sell the said lands to the said Hall in fee simple, for a certain large price, to wit, for the price of one shilling current money of Pennsylvania, equal to the like sum of current money of Maryland, for each and every acre of the said 150,000 acres of land in the said deed contained and conveyed, and did then and there receive the said purchase money of and from the said Hall, or of and from some other person for him or on his.account, and by lus orders, which said purchase money amounted in the whole to the sum of £7500 current money of Pennsylvanias which sum then was, and always since hath been, and still is, equal to and of the value of the like sum of current money of Maryland. That the plaintiff was always since the said 1st of October, and still is, ready and willing to allow and pay the defendant, and to permit him to deduct and retain, &c. all such reasonable and necessary expenses, &c. if any, &c. and also to give to the defendant a sufficient indemnity and counter security, &c. if any, &c.
    
      • 2d Count- — Upon the sanie agreement, (omitting' tSie setting out the title of the land in Riémph, and his letter of attorney, &c.)
    
      3d Count. — Upon the same agreement, stating that the defendant sold the land for, and received Morris and Nicholson’s notes in payment, &c.
    
      Asth Count. — Upon the same agreement, and that said notes were received in payment, &c.'
    
      5th Count.- — Indebitatus assumpsit for 150,000 acres of land, &c. sold and conveyed.
    ■ 6th Count. — Quantum Valebat for 150,000 acres of land sold and conveyed.
    
      7 th Count. — Indebitatus assumpsit fori 50,000 acres of land sold and conveyed to John Mall, &c. for the use of and in trust for the defendant. -
    
      8th Count. — Quantum Valebat for 150,000 acres of land soid and conveyed'to John Hall, for the use of and in trust for the defendant. k911i Count. — General Indebitatus assumpsit for money had and received, &c;
    The defendant put in nineteen pleas to the declaration, vizi
    1st. JVbn assumpsit, on which issue was joined,
    2d. Non assumpsit infra tres annos, (act of limitations of Maryland,’) to the 1st count in the declaration.
    The Replication to the last piea was, that at the time when, &c. both the plaintiff and defendant did reside and were beyond the seas, and absent out of the state of Maryland, to wit, at Philadelphia in the state of Pennsylvania, one of the United States of Americas and that the plaintiff continued to reside, and did remain beyond the seas, from the, aforesaid time, until afterwards, to wit, on the 1st of July 1799, he returned and came into this state, to wit, at Baltimore county aforesaid,* and that the defendant did also remain and reside beyond seas, without the limits of this state, and absent therefrom, to wit, at Philadelphia, from the time when he the defendant did assume, &c. until ho afterwards, to wit, on the 1st of June 1802, returned and-came into this state, to wit, at Baltimore county aforesaid, &c.
    
      
      Rejoinder. That by a statute of the said state of Pennsylvania, enacted and passed on the 27th of March 1713, which at the time when the said pretended cause of action is alleged to have accrued, was, ever since hath been, and still is, in force in the said state of Pennsylvania, that is to say, at Baltimore county aforesaid, entitled “Jin act for limitations of actions,” it was among other things enacted in and by the said statute, “that,” &c. (viz. that actions on the case should he brought within six years after the cause of action accrued,') non assumpsit infra sex an-uos, &e. Demurrer and Joinder thereto.
    3d. Actio non accrevit infra tres annas, (act of limitation of Maryland,) to the 1st count. Replication and rejoinder, similar to those to the 2d plea. Demurrer and joinder.
    
    The rest of the pleadings are omitted, because the question decided by the court turned solely on the demurrers which are stated, and demurrers to similar pleadings to the other counts in the declaration.
    
      Mason, for the defendant,
    inquired of the court whether the issues in fact, or the issues in law, were to be first tried. He cited 4 Bac. Ab. tit. Pleas and Pleading, (No. 1.) Go. Lift. 72. a. 125.
    
      Martin, (Attorney General,) for the plaintiff.
    The general rule is to try the issues inlaw first. .Great inconvenience might result from the issues in fact being first tried; for , if verdicts were found for the plaintiff on the issues in fact, and the court should decide in favour of the' defendant on the issues in law, haw could the verdicts be got clear of. • He cited Robinson vs. Rayley, 1 Burr. 317.
    The Court, [Done and Sprigg, J. ] determined that the issues in law should be tried first.
    
      Harper, on the demurrers,
    contended — 1. That the rejoinders are departures from the defendant’s pleas; And 2, That if they aro not departures, they are insufficient io present the plaintiff's recovery.
    Firsf as to the departure. The rejoinder should support the. plea; if it wore otherwise, controversy would be endless. 4 Bac. Jib. 122, tit. Fleas and Pleading. The act of limitations of one state cannot fortify that of another state. Whore the party pleads anv thing which could not have been shewn at first* it is no departure. Cut here the act of limitation of Pennsylvania might have been first pleaded. The plaintiff must confine himself to one cause of action, and the defendant must confine himself to one defence.
    Secondly'. The rejoinders are insufficient, admitting them not to be departures. The act of limitations of another state can never be pleaded so as to be a bar in this state. By the act of 1715, ch, 23, suits must be brought within a particular time, and not after. It is a prohibitory act to the courts of this state. The debt is not destroyed, but the remedy is taken away. The limitation goes to the remedy, not to the right. Swayne et al. vs. Wallin ger, 2 Sira. 746. ({uantock, et al. vs. England, 5 Burr. 2628. W here the lex loci destroys the rigid, but not the remedy, the debt can be recovered no where. But the laws of Pennsylvania do not extinguish the right -to recover. He cited .'Man vs. Bnke of Fiixjames, 1 Bos. and Full. 138. 3 Bac. M. 512. tit. Limitation of dictions. 6 Mod. 85. The pica of limitation is not favoured, but taken strictly by the courts. It cannot be pleaded after the rule day, nor amended, not being a plea to the merits of Use case.
    
      Mason, for the defendant. The plea of the act of limitations in some cases is a very proper plea. The reason why the courts have bec-n'so'strict witli regard to this plea, has been owing to the abuse of the net by persons pleading it w;lio should not. The defendant has jilead the act of limitations of Pennsylvania in his rejoinder, because of the mispleading of the plaintiff. The law's of the country, where the contract was made, will govern both as to the right and the remedy. There is no departure on the part of the defendant. The departure is on the part of the plaintiff. The defendant pleaded the act of limitations of Maryland. The plaintiff replied, absence beyond seas, viz. in Pennsylvania, until, &c. That the cause of action accrued in a foreign country where both parties rhen resided. The defendant rejoins the statute of limitations of the state of Pennsylvania. To which the plaintiff has demurred. The declaration states a debt in Maryland, and the replication states a debt in Pennsylvania. This is a departure by the plaintiff; The replication admits the plea, but states new matter to entitle the plaintiff to recover. The defendant is therefore entitled to rejoin to the new matter. Suppose the replication had stated that the plaintiff was under age, when the cause of action accrued, and the defendant had replied that he was not under age, would not a collateral point have been put in issue? The plaintiff’s action is barred unless he has brought himself within the savings of the acts of assembly of 1715, ch. 23, s. S, and 1765, ch. 12. The savings of the acts relate to contracts made in this state, and not to contracts made elsewhere. The plain!iff is barred as well by the laws of Maryland as of Pennsylvania. He states in his declaration a contract in Maryland. The plea is a bar to' that contract, and the plaintiff has admitted it, by resorting in bis plea to another contract which he says arose in Pennsylvania. The rejoinder is a bar to the last contract. The replication in this case admits the plea, and does not bring the plaintiff within the savings of the act of assembly.
    
      Martin, (Attorney General,) in reply. If there lias been any defect in pleading, the court will resort to the commencement of the defect.
      
      . The defendant has pleaded tiie act of limitations of Maryland. The plaintiff replied the sasings of the acts of 1715 and 1765, to which the defendant, (going upon the supposition of the replication bring good,) has rejoined the art of limitations of another state, when iie should have denied the matters set forth in the replication, which would have been an affirmance of Ids plea; instead of which, he- endeavours to defend Vim-self by a different allegation. He might have pleaded in his pica the very matter he rejoined in his rejoinder. It is an evident depasture, for he has abandoned his plea, and taken up new matter. The, act of 1715, it has been said, is limited to contracts made in this state. If so, the defendant should have pleaded that the contract was made out of the state. But the. act is not limited to contracts made in this state. The saving takes notice of all actions, and is as broad as the enacting clause. Thecourt has jurisdiction of all contracts, no matter where made. Contracts are not confined to any particular country, but may be enforced in any country; and our act of limitations operates upon a!! contracts, no matter where they were made. It is the. daily practice here to enforce contracts which have been made in other countries. If the enacting clause extends to such actions, the savings do also. This was neve)- doubted until now. There is nothing in the replication to entitle the defendant to rejoin in the manner he has done. The place stated in the replication, where the plaintiff and defendant were when the cause of action accrued, is done to bring the plaintiff within the saving of the act of assembly. The substance in issue should be «were the plaintiff and defendant out of this state,” &c. The act of limitations al‘Penns;¡Irania has nothing to do with the case. The defendant could only have pleaded originally that the cause of action accrued in Pennsylvania, and that by the law of that state the plaintiff was barred by limitations. But had the act of limitations of Pennsylvania been pleaded, it would not have barred the plaintiff’s lecovery. The bankrupt law's of .England do not affect property of the bankrupt out of the. kingdom. As to the inconvenience of a party’s being arrested abroad — it is often the case, but we never see the pica of limitations of another country pleaded. There is no such plea iu the books. There is no limitation in Great Britain upon a bond debt The party may give in evidence, upon the plea of payment, the length of time the debt has been doe, and the jury may presume, from that length of time, that the debt has been paid.
    
      
      
         Chase, Ch. J. absent.
    
    
      
      
         See Cook vs. Graham’s adm’r. 3 Cranch, 229.
    
   Done, J.

. A distinction has been taken between the right anti the remedy. They are co-extensive, and if the remedy is barred it operates every where. The cases cited bear very slightly upon the case at bar. The defendant might have pleaded specially the act of limitations of Pennsylvania.

The suit is upon a cause of action said to have accrued in Maryland. The cause of action attached to the person, and follows the person. The act of limitation of Maryland has been pleaded by the defendant. The plaintiff to avoid it replied the savings of the act. This is correct pleading, and is not a departure from the declaration. The defendant introduces in his rejoinder the act of limitations of Pennsylvania, which is an abandonment of his first defence, and of course is a fatal departure.

The Covet are therefore of opinion, upon each of the. demurrers, that the rejoinder of the defendant is not in law a sufficient answer to the replication of the plaintiff in this cause, but that the matter alleged in the. rejoinder is a departure from *hc plea of the de-fendanij and therefore the court give judgment for the plaintiff on the demurrers in this cause.

A juror was withdrawn by consent, and the cause continued. 
      
      
         Sprigg, J. concurred.
     