Majority
p. 87M. Sleght, Administratrix of Sleght, against Kane.
Headnote
Under the act of the 21st of March, 1783, suspending the statute of limitations during the war, and the act of the 26th of February, 1788, saving the plaintiff’s right of action where the defendant is out of the state ; "in an action on a promissory note, dated the 17th December, 1777, it was held, that the maker, being within the British lines during the war, and departing with the British at the close of the war, was to be deemed as out of the state during that time, and the cause of action being considered as accruing on the 21st of March, 1783, the plaintiff having brought an action within six years after the return of the maker to the state, the latter could not avail himself of the statute of limitations.This was an action on a promissory note, made by the defendant to the intestate, for 100 pounds, dated the 17th of December, 1777, and payable on demand.
The defendant pleaded non assumpsit infra sex annos. The plaintiff replied, as follows : that before the date of the note, “to wit, on the 15th of September, 1776, there was open war between the king of Great Britain and his subjects, and the United States of America and their citizens, in all parts of the world, to .wit, at the city of New York, at the first ward tof the said city, in the said county of New York, and there being so open war between the said king and his subjects, and the said United States, the army of the' said king on the said 15th day of September, in the said year of oúf Lord 1776, conquered, subdued and took possession of part of the southern district of the state of New • York,'- that is to say, of the counties of Suffolk, Queens,
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Kings,_ Richmond, and the said city and county -of New York, and in the firm possession thereof continued by virtue of the said conquest, from the said 15th day of September, in the year of our Lord 1776, until the 25th day of November, in the year of bur Lord 1783, to wit, at the said city of New1 York, at the first ward of the said city, in the said county of New York. And the said plaintiff [*77} ^further says, that on the said 17th day of December, in the said year of our Lord 1777,' and before that day, the said defendant was an inhabitant of the county .of Dutchess, in the said state/- of New York, and that the place of abode of the said defendant was at Fredericksburg, within said county of Dutchess, to wit, at the ' said city of New York, at the first ward of the said city, in the said county of New York, and that, after the making of the several promises, in the declaration aforesaid alleged to ‘ have been made by him the said defendant, to wit, on the . said 17th day of December, in the said year of our Lord 1777, the said defendant left-his said- place of abode in the said county of Dutchess, and joined the said army of the said king, so as aforesaid in possession of said southern district of the said state of New York, to Wit, at the said city of New York, at the first ward of the said city, in the-said cotinty of New York; .and that the said defendant after so joining the said army, remained under the power and protection of the said army, so as aforesaid in possession of the said part of the said southern district of the said state of New York, from the said 17th day of December, in the said .year of our Lord 1777, until the 24th day of November, in the year of Our Lord 1783, to'wit, at the said city of New York, at the first " ward of the said city, in the said county of New York. And the said plaintiff further saitb, that the said "defendant departed- from the said state of New York, before the 1st " day of January, in the year of our Lord 1784, to wit, on the 24th day oLNovember, in the said year of our Lord 1783. And the said plaintiff further saith,,the said John H. Sleght departed this life on the 1st day of January, in the year of _ " our Lord 179Ó, to wit, at the said city of New York, at the
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first ward of the said city, in the said county of New York, and that between the 16th day of December, in the said year of our Lord 1777, and the said 1st day of January, in the said year of our Lord 1784, there was no sheriff, or any other officer, deriving his authority from the people of the said state of New York, appointed either for the said county of Suffolk, or *for the [*78] said county of Queens, or for the said county of Kings, or for the said county of Richmond, or for the said city and county of New York, to whom any writ of capias ad respondendum, or any other process, issued in the name and by the authority of the said people, at the suit of the said John H. Sleght, against the said defendant, for the recovery of the damages of the said John H. Sleght, by reason of the non-performance of the several promises in the declaration aforesaid alleged to have been made by the said defendant, could be directed and delivered for the taking and arresting of the said defendant. And the said plaintiff further says, that the said bill of the said plaintiff against the said defendant was exhibited within six years after the return of thé said defendant to the said state of New York, to wit, at the city of New York, at the first ward of the said city$ in the said county of New York, and this the said plaintiff, administratrix, as aforesaid, is ready to verify,” &c.
The defendant rejoined; “ protesting, that the said John H. Sleght departed this life before the 1st day of January, in the year of our Lord 1790, and also protesting, that the said bi[l of the said plaintiff, against him the said defendant was not exhibited within six years after the return of him the said defendant to the said state, as by the said plaintiff, is above in her first plea so pleaded in reply alleged ,* for joinder in this behalf the said defendant saith, that he the ¡ aid defendant did not leave his said place of abode in the said county of Dutchess and join the said army of the said king) in the possession of'the said part of the said southern district, on the said 17th day of December, in the said year 1777, as the said plaintiff, administratrix as aforesaid, hath in her said first plea so pleaded in reply alleged; but was and contin ued
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to be an inhabitant of the said county of Dutchess, at Fredericksburgh aforesaid in the said county of Dutchess, on that day, and for a long time thereafter, that is to say, until the 10th day of July, in the year of our Lord 1779. And the said defendant further saith, that the cause or action [*79] of the said'plaintiff *in the declaration aforesaid mentioned, was given, accrued, fallen and come to the said John H. Sleght in. his lifetime, before the said defendant departed from the said state of New York, to wit, on the 9th day of July, in the year of our Lord 1779, to wit, at the city and ward aforesaid, and this he is ready to verify,” &c.
To this rejoinder the plaintiff demurred, and the defendant joined in demurrer.'
The general question was, whether upon the facts disclosed by the pleadings, the action was barred by the statute of limitations.
By the act of the 8th March, 1773, being the law on the subject, as it stood before the act of the 21st March, 1788,£l the action on a promissory note was to be commenced within six years after the cause' of action arose, provided, that if the person entitled to such action, should be beyond sea, he should be at liberty to bring the action within the time before limited after he should return from beyond sea.” By the act of the 21st March, 1783, “ no part of the time from the 14th October, 1775, to the day of the passing of the act was to be deemed a part of the period above limited.” By the act of the 26th February, 1788, “ all actions on the case, other than for slander, are to be brought within six years after the cause of action arose; but if a person, agáinst whom there then was or should be a cause of such action, then was or should be out of the state at the time any such cause of action accrued, in every such case, the person who was or should be entitled to such action, should be at . liberty to bring the action against such person after his return to this state, so as he (the person entitled to the action) took the same after such return, with the time before limited.”
The note in question was certainly not barred on the 21st
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March, 1783 ; but it having been given during the period of the suspension of the limitation, it had to run to the 21st March, 1789, and was as to the limitation * precisely [*80] the same as if it had been given on the 21st March, 1783, or in other words, as if the cause of action had accrued on that day. If the act of the 26th February, 1788, had never passed, and if the note had not been put in suit until after the 21st March, 1789, the defendant might have pleaded the limitation, as under the act of the 8th March, 1773, and the plaintiff could not have replied that the defendant was out of the state. But the act of the 26th February, 1788, giving the plaintiff a right to reply such matter, the inquiry is, whether she hath sufficiently alleged in her replication, that the defendant was out of the state on the 21st March, 1783, when as I have already stated, the cause of action is to be deemed to have accrued, and that she brought her. action within six years after the return of the defendant to the state ? The replication alleges, that the defendant left his place of abode in Dutchess county, on the 17th day of September, 1777, and the rejoinder admits, that he left it on the 10th day of July, 1779 ; and the replication further alleges, “ that the defendant then joined the army of the king of Great Britain, and remained under the protection of the said army, then in possession of a portion of the southern district of this state (which the said army had conquered, and had possession of by virtue of that conquest, there being then open war between the said king and the United States) until the 24th November, 1783, and that he then departed out of this state, and that the bill was exhibited within six years • after his return to the state.” The inquiry, therefore, is reduced to this single point, whether' the defendant, although he was, in fact, on the 21st March, 1783, at some place within the southern district, ought not in law, as it respects the right of the plaintiff intended to be secured by the act of the 26th February, 1788, to be adjudged to have been out of the state. I think he ought to be so adjudged, and for the reasons which the replication itself naturally and obviouslysuggests ; because he was out of the jurisdiction of *the [*81] state; he was quasi out of the realm; he was where
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the authority which was exercised, was not derived from the state, but from the king of Great Britain by the right,of conquest. ■ Ño writ óf the State could run there, consequently, . “ no suit, could be. brought against him” there.
My opinion therefore* 1 is, that the plaintiff is entitled to recover.
Lewis, J. and Lansing, Ch. L were of the same opinion,
. Kent, J. -having been formerly concerned as counsel in the cause, gave no opinion.. • .
Radcliff, J. not having heard the argument in the • cause, gave no-opinion.
Judgment for the plaintiff,