
    Betsey White, Administratrix, versus Jonathan Bailey.
    A debtor’s return into this government, from which the statute of limits ’ions begins to run, must be such a return as wilh enable his creditor, using reasonable diligence, to arrest his body as security.
    Case upon a promissory note dated October 5th, A. D. 1 '85, and payable to the plaintiff’s intestate in two months from the date.
    The defendant pleads, 1st. Non assumpsit, which is joined. 2. Causa actionis non accredit infra sex annos. The plaintiff replies that when the action accrued, the defendant was out of the commonwealth, and so continued from that time to the purchase of the writ in this action, leaving no property which could be attached. The defendant rejoins, that after the action accrued, and more than six years before its commencement, he returned into the comn on-wealth. Upon this fact issue was joined.
    
      These issues came on for trial at the last May term, before Parker, J.; but before a verdict was given, the cause was taken from the jury, and submitted to the Court upon a statement of the facts.
    *By that statement it appears that the defendant left [ * 272 ] the commonwealth, and went into the state of New York, in November, 1785, before the note was payable; that in March, 1787, he came to Bridgewater, his former place of residence, where he remained eighteen days; during which time he kept himself shut up, except on Sundays, when he visited the witness, who was a deputy sheriff, and whom he informed that he had returned in order to obtain a letter of license from his creditors; that he then returned to New York, and has never since been in this commonwealth, until the time that the plaintiff caused him to be arrested in this suit; that he left no property in the commonwealth, which could be attached during his absence, and that he still lives in the state of New York.
    
    If the Court should be of opinion, upon these facts, that the defendant returned into this commonwealth within the meaning and intent of the statute of limitations, the plaintiff was to become nonsuit; otherwise, the defendant was to be defaulted, and judgment in either case to be entered accordingly.
    
      For the defendant, it was argued that the case came within the provision in the fourth section of the statute for the limitation of persona] actions , by which the limitation of actions is suspended as against persons out of the limits of the commonwealth, but. begins to run from the time of such persons’ return. By the facts it appears that the defendant actually returned, and continued within the commonwealth eighteen days, at a period more than six years Before the commencement of the plaintiff’s action. And it was observed that however the facts stated might be supposed to exhibit some features of hardship upon the plaintiff, the Court here could not bend the law to such a consideration. If, by the words of the statute, the plaintiff has lost her remedy, she may complain of the law, but the Court will hold themselves bound to execute it.
    A like hard case arises under the statute of 1797, c. 50, which provides for the rendering judgment against a defendant after two continuances, although no notice be given or *can be presumed to be given him. How- [ * 273 ] ever this may militate with the common principles of legal proceedings, courts of law have never hesitated to conform to it.
    
      
      Sproat and Mitchell, for the plaintiff.
    
      B. Whitman and Baylies, for the defendant.
    
      
       1786, c. 51.
    
   Curia.

This proviso must have a construction consonant to the manifest intent of the legislature. When the creditor’s cause of action accrued, if he could not then sue with any prospect of benefit, because his debtor was without the jurisdiction of the state, having no property within it, the statute should not then begin to run ; for the creditor could not then take the body as a pledge, or seize the property as a security. But as soon as the creditor could have a beneficial remedy by suit, either by attaching the body or effects of his debtor, then the statute should begin to run. The statute therefore, in providing that the limitation should commence on the debtor’s return into the state, must intend such a return as would enable his creditor, using reasonable diligence, to arrest his body as security for the debt.

In the present case, it is true that the defendant came into Bridgewater, where he formerly lived, and remained there eighteen days. But he came privately, and secreted himself except on Sundays. The creditor, therefore, is chargeable with no neglect in not arresting him. It does not appear that he knew of his debtor’s being in Bridgewater; and if he had known it, he had no opportunity of arresting him. Under these circumstances, we cannot consider the defendant as having returned into the state, within the true meaning of the proviso. By returning into the state, must here be intended a return with a design again to dwell within the jurisdiction of the commonwealth, and not to lurk in it as a place of concealment.

The defendant must be defaulted, and the plaintiff have judgment according to the agreement of the parties . 
      
      
        [Byrne vs. Crowningshield, 1 Pick. 263.—Ed.]
     