
    Charles Lavasseur, v. P. Ligniez.
    Where both parties are “beyond seas” at the making of the contract, and the defendant comes within the State, leaving the plaintiff “beyond seas,” the plaintiff has five years, within which to bring his action, computing from the time at which the defendant came into the State.
    Tried before Mr. Justice Butler, at Charleston, May Term, 1846.
    This was an action of assumpsit against the maker of several promissory notes. At the time of their execution, both the parties lived in Paris, and the plaintiff, the payee, still lives there, never having lived in this State. About the time that these notes fell due, to wit, in July, 1839, the defendant left France, and arrived in Charleston on the 12th of September, 1839. This action was commenced on the 18th September, 1844. Upon this statement of facts, verified by the verdict of the jury, the defendant contended, under his plea, that the action was barred by our limitation act. The plaintiff’s counsel, under his replication, contended, that as the defendant was abroad when the cause of action accrued, the case was taken from under the operation of the act of limitations of 1712, and came under the provisions of 4th Ann. His Honor, the presiding Judge, ruled, that the defendant was entitled to the provisions of the Act of 1712, and that plaintiff’s action has been barred, more than five years having elapsed since the time the defendant settled in this city.
    From this judgment the plaintiff appealed, and moved for a new trial, on the ground, that his Honor ruled that the act of limitations of 1712 applied to this case: whereas, it is submitted, that the facts bring it under the operation of the statute of 4th Ann, section 19, which, cannot bar the plaintiff.
    T. P. Magratii, for the motion,
    contended that the judgment of the Circuit Court was erroneous, for the following reasons:
    1. Because, where the defendant is abroad when the cause of action accrues, he cannot plead the statute of limitation. Statute 4th Anne, sec. 19; 2 Stat, 436; Smith v. Mitchell, Rice. 316. This statute extends as well to those who were foreigners at the lime of the accrual of the cause of action, and have come subsequently into the State, as to those who have only gone abroad temporarily. Ruggles a. Keeler, 3 Johns., 267; Fowler v. Hunt, 10 Johns., 464; Angelí on Limitations, 223.
    2. Because the statute of limitation of 1712, cannot apply to this case either by itself or by construction with the statute of 4th Anne. Not by itself, because it is governed particularly by the latter statute; and if the former act should apply, the latter is not of force, but being of force in this particular class of cases, and speci al provision being made therein, the former act, which is general, is inoperative; not by construction with the statute of 4th Anne, because they are inconsistent, repugnant, and cannot be construed together.
    3. Because the time mentioned in the 4th section of the statute of 21 James^ wherein suits are tobe brought, is incorporated in the 19th section of the statute of 4th Anne, by express reference, and is to be taken as part of the said statute, according to the construction of references in statutes; Viner, 523, And also by analogy to the cons ruction of references in deeds, &c.; Izard ¾. Middleton; 1 N. & M’C., 381; statute 21 James 1; 2 Brev. Dig., 19.
    4. Because the 2d section of A. A. of 1712, makes of force in this State the 4th section of the statute of 21 James; A. A. 1712; 2d section; 2 Statutes, 413.
    5. Because, as the statute of 4th Anne is only operative against resident plaintiffs, it cannot run against a foreigner who has never been in the State; Angelí on Limitation, 216-18-19.
    H. P. Walker, contra.
    
    The question which presents itself is, whether in this State there is any limitation to suits against parties who were abroad when the cause of action accrued? In England, the statute of 21 James 1, (A. D. 1623,) enacts, that six years should be the term of limitation; but lest creditors should lose their just demands by the departure of debtors frem the country before the accrual of the cause of action—as in the instance of a note at a long date, before its maturity; and fail to return within the limited time—the Act of 4 Anne, c. 16, (A. D. 1705) was passed, which gave creditors the same time after their debtors return, which they would have had if such debtors had not absented themselves. The statute of James is not of force in this State, but the statute of limitations of this State, which, in the case of Smith v. Mitchell, (Rice 316) is declared to have been “copied from and substituted” for the statute of James, limits the term to four years; and on the same day that the statute of limitations of this State was passed (12th December, 1712,) another Act was also passed, which made of force inter alia, the section already referred to, of 4 Anne, c. 16. It is obvious that the object of that Legislature was precisely the same as the object of the Parliament which originally made it a law, i. e., that when the debtor is beyond the seas, at the time the cause of action accrues, the creditor shall have the same time after his return, which he would have been entitled to, if his debtor had not been absent; to ascertain the time allowed, the Act substituted for the21 James l,must be referred to; and in the substituted Act, it is found to be four years; but we also find in that Act a clause in favor of creditors who happen to be beyond the seas, at the time of the accrual of their cause of action, and as that clause may be considered applicable to this case, the plaintiff is not barred if he brought his action within five years after its accrual, and taking the first arrival of the defendant, in this State, as the time of such accrual, it appears by the verdict that ho failed to do so.
   O’Neall J.

delivered the opinion of the Court.

The decision in Smith v. Mitchell, Rice’s Rep., 316, decided, that where the defendant, before the cause of action accrued, went beyond the State, the statute of limitations did not begin to run until his return under the 19th section of 4th Anne, c. 16. This case claims that where both parties are beyond seas at the making of the contract, and the defendant comes within the State, leaving the plaintiff beyond seas, that in that case the plaintiff is either without limitation, or has six years.

I am satisfied that the ruling of the Judge below is right. The statute of Anne was made of force, and the Act of 1712 was passed the same day. Where not inconsistent, it has been held that both may operate. It is true that the statute of Anne gives to a plaintiff, having a cause of action accrued against a person while he is out of the State, (or beyond seas, as the statute expresses it,) the period, limited by the statute of James, six years within which to bring his action after the party shall return to the State; but the Act of 1712 was intended to abridge the time given by the statute of James, and instead of six years, gave only four years. This would necessarily enter into the construction of the statute of Anne, and instead of allowing the period of' the statute of James, which was adopted by it as the then existing period oí limitation, would take in its place that settled by the Act of 1712. The principle of “.Leges posteriores priores abroga,nl,” would lead to this result. For although the statute of Anne was made of force the same day the statute of 1712 was passed, yet all inconsistent provisions of the letter must be regarded, as they are in fact later expressions of the legislative will. The 10 sec. of the Act of 1712, P. L. 102, 2 Statute at Large, 588, must govern this case; it provides, “that if any person or persons is or shall be entitled to any' such action of trespass, detinue, action in trover, replevin, actions of account, debt, covenant, actions of assault, menace, battery, wounding, or imprisonment, actions upon the case for words, and at the time of any such cause of action given or accrued, shall be beyond seas, feme covert, or imprisoned, shall be at liberty to bring their action within five years after such cause of actions given or accrued.” It is singular, that in this clause the action upon the case generally comprehending the action of assumpsit, should be omitted; and it is therefore possible that a plaintiff beyond seas, in such action, may, whenever it be necessary to look to that, find it difficult to claim more than four years. I, however, here give the plaintiff the benefit of five years, and allowed him to compute that time from the time at which the defendant came into this State. Doing so, it is plain that he is barred.

The motion is dismissed.

Evans J., Waedlaw J., Feost J., and Withers J. concurred.  