
    William Vans versus John Higginson.
    To a plea of the statute of limitations, to an action upon sundry promises, the plaintiff replied, that, at the time of making the promises, the parties were in parts beyond sea; and that he, the plaintiff, was never afterwards within the United Stales at the same time that the defendant was also within the same, "or had any property subject to attachment by the ordinary process of law, until within six years before the commencement of the action. The replication was adjudged bad, and the defendant had judgment
    This was an action of the case upon a promissory note made to the plaintiff by the defendant. The declaration also contained the common money counts.
    The defendant pleads in bar, “ that the cause or causes of action in the said counts supposed did not, at any time within six years next before the commencement of the said action, accrue to the plaintiff. And this he is ready,” &c.
    The plaintiff replies, that he ought not to be barred, &c., because he says, “ that at the time of making the several promises in the declaration mentioned, the plaintiff and the defendant were in parts beyond sea, viz., at Paris, in the kingdom or empire of France ; and the plaintiff further says, that he never was, at any time thereafter-wards, in the United States of America, at the same time that the defendant was also within the same, or at the same time that he, the said defendant, had any property in this commonwealth to be attached by the common and ordinary process of law, until within six years before the commencement of this action, viz., until the 1st day of September, 1808. And this,” &c.
    
      To this replication the defendant demurs generally, and the plaintiff joins in demurrer.
    The demurrer was argued at the last March term in this county, by Savage for the defendant, and Prescott and Selfridge for the plaintiff.
    
      Savage.
    
    Our statute of limitations  has the very words of the English statutes of 21 Jac. c. 16, and of 4 Anne, c. 16, in the first of which disabilities of plaintiffs, and in the other those of [ * 30 ] defendants, are provided against. The construction * of the English statutes, as adopted in Westminster Hall, will then govern in the construction of our own. When the statute begins to run, it runs over all mesne acts.  So, in the case at bar, the plaintiff was here more than six years before the action was commenced, and after the cause of -action accrued; and therefore the statute began to run, unless the impediment of the defendant’s absence, and his having no property here, is saved by the clause in the fourth section of the statute. But the impediment is not thus saved, because the defendant was within the commonwealth after the cause of action accrued, and more than six years before action brought; both which facts are admitted by the replication.
    This reasoning is fortified by the case of Hickman vs. Walker, 
       which is very like the case at bar, and by that of Smith, Exr. vs. Hill, Exr. 
       If one plaintiff be abroad, and the other in England, the action must be commenced within the six years.  If these decisions are not followed, the plaintiff might be here one half the time, and the defendant the other half, and thus the operation of the statute would be prevented forever. — The cases of White vs Bailey 
       and Bow vs. Warren 
       support the construction for which we contend.
    
      Prescott and Selfridge.
    
    The statutes of limitations are founded on the presumption of payment. The common law bars actions on a similar presumption, after a longer time. But no such presumption can exist, where the parties cannot have been together. The statute never runs against a creditor, while his debtor is without the United States, and has no property to be attached. There is no case in the English books like the one at bar. When both the parties were abroad, the statute did not operate; nor when the plaintiff was absent, though the defendant was here; nor when the plaintiff was here, and the defendant absent, leaving no property. 
    
    
      
      
        Stat. 1786, c. 52, § 4.
    
    
      
       Strange, 556, Gray vs. Mendez
      
    
    
      
      
        Willes’s Rep. 27.
    
    
      
       1 Wils. 134.
    
    
      
       4 D. & E. 516, Perry vs. Jackson.—Ibid. 300, Doe vs. Jones.
      
    
    
      
       3 Mass. Rep. 273.
    
    
      
       6 Mass. Rep. 329.— See also 1 Selw. N. P. 133, in notis, and 2 Atk. 614, Sturt vs. Mellish.
      
    
    
      
       7 Mass. Rep. 515, Dwight vs. Clark.
      
    
   Curia.

The object of the replication in this case is to make an exception, which the statute of limitations has not * made, and which we therefore cannot support. When [ * 31 ] the defendant came within the state, the six years began to run, as it respected him; and when the plaintiff returned, the six years began as to him. The replication is adjudged bad and insufficient,

Costs for the defendant.

ADDITIONAL NOTE.

[See Nathans vs. Bingham, 1 Miles, 164. — Reid vs. Geoghehan, Ibid. 204. — Green vs. Johnson, 3 Gill & J. 389. — Frey vs. Kirk, 4 Ibid. 509. — Paterson, &c., vs. Ludlow, 6 Halst. 354. — Battles vs. Fobes, 16 Pick. 532,19 Pick. 578.

To bring a case within the exception in the statute of limitations which applies to absent parties, the •presence of the debtor within the state, after bis return, must be such as to enable the creditor, with ordinary diligence, to avail himself of it. A con cealed and clandestine presence for any period is not sufficient. Hysinger vs. Ballzell, 3 Gill & J. 158. —Little vs. Blunt, 16 Pick. 359.

If a debt was contracted abroad, between citizens of the foreign country, and barred by its statute of limitations while the parties remained there, a suit may still be maintained within six years from their coming into Massachusetts. Bulger vs. Roche, 11 Pick. 36.

Where one makes a new promise to pay an outlawed claim, when absent from the state, leaving no attachable property in it, the statute of limitations does not be.gin to operate till his return to the state. — Little vs. Blunt, 9 Pick. 488.

The statute of limitations of Massachusetts provided, that where the debtor, when the cause of action accrued, was out of the state, and did not leave attachable property therein, the statute should not begin to run till his return. Held applicable to one who had never been in the state. — Little vs. Blunt, 16 Pick. 359.

So also to a new promise, made out of the state, whether before or after the original promise was outlawed. — Ibid.

A citizen of another state, who has never been in Massachusetts, is not a person “ beyond sea, without any of the United States," within the saving clause of the statute of limitations. (See Rev. St. c. 120, s. 6.)—Whitney vs. Goddard, 20 Pick. 304.— F H.] 
      
      
         [This decision is wholly unsupported'by authority. The statute does not begin to run until the defendant is within the country next after the cause of action has accrued, or has property here, liable to attachment; (White vs. Bailey, 3 Mass. Rep 273. — Dwight vs. Clark, 7 Mass. Rep. 515. — Byrne vs. Crowninshield, 1 Pick. 263; nor then, until the plaintiff is here also at a time when he can commence a suit. — Hall vs. Little, 14 Mass. Rep. 203. — Wilson vs. Appleton, 17 Mass. Rep. 180. — Strithorst vs. Greene, 2 Bl. 723. 3 Wilson, 145. The statute does not begin to run while the parties are abroad, although they may be in the same country, where the plaintiff might have sued, if he had chosen so to do. — Williams vs. Jones, 13 East. 439. — But If one of several plaintiffs be in the country after the cause of action arises, and the defendant be here, or have property here, the statute will begin to run from the time he is able to commence a suit. — Perry vs. Jackson, 4 D. & E. 516. —■ If the plaintiff be here at the time the cause of action accrues, and the defendant be here, or have property here, so that the plaintiff can commence a suit, and the plaintiff afterwards goes abroad, the statute begins to run; so that, if no suit be commenced within six years, the statute will be a bar.— Smith vs. Hill, 1 Wills. 334. — Ed.]
     