
    Mary Southgate v. R. H. Goldthwaite.
    Columbia,
    Jan. 1830.
    The saving in the statute of limitations, in favor of persons beyond the seas, in the case of actions upon contracts, &c. extends no further, than to enable the plaintiff to bring suit, at any time within five years, after the cause of action accrued; after that period the statute is a bar, although the plaintiff may have been all the time absent from the State, and the action was commenced within five years, after the plaintiff had notice that the defendant was residing in this State, vide St. 4 Ann. c. 16, s. J9r P. L. 96.
    Tried before Mr. Justice Huger, at Spartanburgh, Fall Term, 1829.
    This was an action of assumpsit upon a promissory note, dated in December 1820, and which became due in June 1821. The suit was not commenced until April 1828, and the defendant pleaded the statute of limitations. . The plaintiff replied, that the note was made in Richmond, Virginia, where both the defendant and herself resided at the time, and where she had continued to reside ever since; that, before the note became due, the defendant removed from beyond the limits of the State of Virginia, and that the plaintiff had no notice, of the place of his residence, or that he was residing in this State, until within y(>ars next before the bringing of this action. To this re* • plication the defendant demurred, but the demurrer was over-i Tit ruJetJ by the presiding; Judge, who, however, permitted the de-£.e))(jaut t0 pjeH(j a ri.loase puis darrein continuance. This plea was verified by affidavit, but. the defendant, being unprepared with proof, moved for a continuance, on the ground oí the absence of witnesses. The, presiding Judge refused the motion, and the jury found a verdict for the plaintiff, which the defendant now moved to set aside.
    Hknry, for the motion.
    Iiiby, and Bobo, contra.
    
   Johnson, J.

delivered (he. opinion of the Court.

The Court is not disposed to investigate the correctness of the order of the Circuit Court, on the application of the defendant for a continuance. That was a matter of discretion. The only question, therefore, which remains to be considered is, whether the plaintiff’s replication to the defendant’s plea of the statute of limitations, is, in law, a sufficient answer to the. plea.

The only saving m our statute of limitations in favor of nonresident plaintiffs is, that if, at the time of the cause of action, given, or accrued, they shall be beyond the seas, they shall be at liberty to bring their action, at any time within four years af.ter the ratification of the act, or at any time within five years after the cause of action given or accrued, and at 110 time after. P. L. 102 -3.

The facts stated in the replication are, that the note on which the action is brought, was made in Richmond, Virginia ; that the plaintiff then resided, and still continues to reside there ; that the defendant removed to this rítate before the. note became due; and that the plaintiff was ignorant of his place of residence until within five years next before the bringing of the action.

It is apparent, that the case, stated in the replication, is not one covered by the saving in the statute, and the Court is not at liberty to substitute any other. The Statute, of 21 James, 1. ch. 1, from which our own is very nearly copied, contains a saving in sec. 7, in favour of persons plaintiffs, who are beyond the seas at the time the action accrued, and. which prevents its operation until their return. The statute of limitations of New-York, and it is said of all the other States, except our own, contains a similar provision ; and. the necessity for it is so obvious, that it is matter of surprise, that it was overlooked by the framers of our statute, and still more, that subsequent Legislatures have not provided a remedy. We are not informed of the particulars of this case, except as they appear from the pleadings : but it is not difficult to conceive of a case, in which an unprincipled debtor might, in despite of the efforts of a creditor, elude his pursuit for five years, and at the expiration of that period, turn upon him in mockery of his pursuit; and provision ought to be made for such a case. But that belongs to the Le-gislaiure, and not. to this Court.

The verdict must, therefore, be set aside, and the judgment on demurrer is reversed, with leave, however, to the plaintiff, to answer over if she thinks proper.

Motion granted.  