
    Levi Cook, and Charles Arms v. John M. Kibbee.
    When the statute of limitations begins to run from the time of making a promise, a plea that the defendant did not assume and promise within six years is well enough; but if the right of action accrue after making the 'promise, the plea should be that the cause of action did not accrue within six years.
    But if, in the latter case, the defendant plead non assumpsit within six years, a replication that, when the plaintiff’s right of action accrued, and always, until within six years before commencing the suit, the defendant was without the state, and did not have known property or estate therein, which could, by the common and ordinary process of law, be attached, is sufficient.
    Assumpsit on a promissory note, dated Feb. 2, 1834, and payable six months after date.
    The defendant pleaded that he did not assume and promise within six years next before the commencement of the suit. The plaintiffs replied, that, when the cause of action accrued, and always after-wards until within six years next before the commencement of this suit, to wit, &c., the defendant was without this state, and did not have known property or estate therein, which could, by the common and ordinary process of law, be attached. To this replication there was a demurrer, and joinder in demurrer.
    The county court adjudged that the replication was sufficient, and rendered judgment for the plaintiffs. Exceptions by defendant.
    ----for defendant.
    --for plaintiffs.
   The opinion of the court was delivered by

Bennett, J.

In this case the note was payable six months after date, and the defendant pleads that he did not assume and promise within six years, &c. When the statute begins to run from the time of making the promise, the form of pleading the statute adopted in this case is well enough ; but, in cases in which the cause of action accrues after making the promise, the plea must be actio non accrevit. 1 Saund. 33, n. 2. Ib. 283, n. 2. 2 Saund. 63 c, n. 6.

If the plea had been good, the replication would have been sufficient. The statute does not run, if the defendant is out of the state when the action accrues, and has no property within the state which could be attached by the common and ordinary process of law; and hence six years must be allowed for bringing the action, after the defendant comes within the state.

Judgment affirmed.  