in equity; or it will not avail. as at law; and unless set up in pleading, it can never avail the at law and defendant, even though the proceedings on the part of the plaintiff, show that the statute is applicable. But the case last cited decided, that in a case pending in equity, the statute would constitute a bar. Thus, where the defendant had been adversely possessed, three years of a certain slave, it was held to be a bar the plaintiff thus limiting the plaintiff's right. 13. r; ALSOP V. NICHOLS, 9 Conn. Rep. 357; NICHOLS v. LEAVEN- of limita The statute of limitations is a good replication to a plea of The statute set-off. The case of Nichols v. Leavenworth, has been sup- tions is a posed to be otherwise; but it is not. The action was on cation to a good repli book debt, and a debt barred by the statute, was introduced by plea of set the defendant, to countervail a debt of the other party; but it was on the ground of payment. A debt barred by the statute of limitations, is not a debt recognized by law. In a plea of set-off, the defendant is the actor as far as regards this demand. The only case which is otherwise, is a case decided by Lord Kenyon at N. P. 2 Esp. R. 569. 14. SMITH V. RUECASTLE, 2 Hals. N. J. Rep. 357. off. where the The action was assumpsit on a sealed bill, and the defendant But not pleaded non assumpsit payment, and the statute of limitations. set off is on The exception to the verdict, which was in favor of the plain- the ground of paymen', tiff, was that evidence was admitted under the plea of payment, and not al of an account existing more than six years before the action so, it seems was commenced; but the court affirmed the judgment. Kimsey, C. J. said: A defendant sued, may plead or give in demar.ds, evidence, a debt of 40 years standing; for neither our statute, nor the English, does apply to cases, where there are mutual accounts, and reciprocal demands; 6 Term 193. 15. JACKSON V. VARICK, 2 Wend. N. Y. 294; Fox v. BAKER, 2 ib. 244; 7 Cow. 401, S. P. to a case of mutual and reciprocal ́If the defendant omits to plead the statute, it was held, that Ifdefend the court would not allow him to amend by pleading the statute; ant omits to plead the for it is a strict defence, and if the party lets it slip, the court statute, the will not relieve him. So, in Fox v. Baker, it was held, that the court will not give leave to amend, so court in setting aside an inquest, would not do it without inas to plead. terposing a condition of a withdrawal of the statute of limitations. S. P. Wall v. Wall, 2 H. & G. 79. Statute of limitations 16. JACKSON V. CUTRIGHT, 5 Mumf. Rep. 308; GREEN v. GILL, The defendant in chancery was permitted to amend after issue joined for cause shown, by inserting the statute in his answer. And in a case at common law, where the plaintiff had leave to amend his declaration, it was held, that the defendant was entitled to withdraw his plea, and plead the statute. VI. THE STATUTE OF LIMITATIONS OF FOREIGN 1. PEARSALL V. DWIGHT, Sept. T. 1806, 2 Mass. Rep. 841; BYRNE The declaration was on a negotiable note, payable by the deof another fendants to the plaintiffs or order; and, the plea in bar alleged, * In Douglas, et al. v. Forrest, Ex'or, 4 Bing. 670; S. C. Ham. Abr. p. 527, it was held, that an action would lie in the English Courts, on & judgment or decree of the court of sessions in Scotland; and where the defendant's testator resided and died abroad, a suit might be brought within six years from his death against the executor. The plaintiffs rested their claims upon these decrees. The defend. ant insisted that these decrees would not support an action in the English courts; because they were pronounced while the deceased was at a distance from Scotland, and without notice of the proceedings instituted against him. The defence was mnade on the general issue. The defendant also pleaded, that the plaintiff's cause of action did not accrue within six years before the commencement of the suit. The replication stated, that the deceased, at the time when the cause of action accrued, was beyond the seas, and remained beyond the seas until 1817, when he died; and the plaintiffs sued out their writ, within six years after he first took upon himself the execution of the will of the deceased, in Great Britain, and that he had no other executor in Great Britain. This replication was fully proved, and the issue on it found for the plaintiffs. Best, C. J. in delivering the judgment of the court for the plaintiffs, observed: Although the injury of which the plaintiffs complain, has existed more than six years, yet there was no cause of action until there was some person within the realm, against whom the action could be brought. Cause of action is the right to prosecute an action with effect. No one has a complete cause of action, until there is somebody that he can sue. The deceased was never in England after the cause of action accrued against him; after his death, there was no person in Eng state cannot be pleaded tions com menced that long before, at the time, and ever since the note was executed, the plaintiffs were inhabitants of New-York; that the in bar of ao note was there made; that before it was made, and six years before this action was commenced, there was a statute of that in Mass. state still in force, which, among other things, limited the time of suing an action of this description to six years next after the cause of action accrued, which part of the statute is particularly pleaded with a profert of the exemplification of the whole statute, and there is the averment necessary to bring the action. within that statute. The plaintiffs, in the replication, neither pray oyer of the exemplification of that statute, nor, particularly, plead any exceptions made in it, but confess and would avoid the bar, by alleging that the defendants were, during all the time, inhabitants of this state. The defendants, in their rejoinder, confess and would avoid the replication, by averring that, since the the making of that note, and more than six years before this action was commenced, the defendants went and returned to the state of New-York, and were there ten days, with the knowledge of the plaintiffs. And the plaintiffs demur to this rejoinder, and upon joinder, the court decided that the plea in bar was not good; and, consequently, the rejoinder was adjudged bad and insufficient in law. Parsons, C. J. said: If the matters alleged in the replication are sufficient to avoid the bar, the rejoinder must be bad, because it neither traverses those matters, nor shows any provision in the statute of New-York. by which the effect of the replication is avoided by the collateral facts pleaded in the rejoinder. For the same reason, if the matters alleged in the bar are sufficient in law, the replication must be bad, for the plaintiffs do not plead land, against whom the plaintiffs could proceed, until the defendant took upon him self the execution of his will. He did not act, or prove the will until 1824. An executor may do many acts before he has proved the will; his right to the testa. tor's property has relation to the time of the testator's death, but no action can be maintained against him as executor, until he has taken upon himself to act as such or has proved the will. If he has acted as executor, he may be sued as executor, whether he has proved the will or not. Here, the defendant had not acted before 1824, when he obtained probate. The statute only runs from the time that an executor has either acted or proved the will. The replication, therefore, is a good answer to the plea. In Joliffe v. Pitt, 2 Vern. 694, it is stated by the reporter to have been agreed, that no laches can be imputed to a man for not suing whilst there was no executor, against whom he could bring his action. This point, however, was not decided by the court. In Webster v. Lee, 10 Vos. 93, it appeared that the testator died in 1786; the will was proved in 1802; and it was held that the statute could not be pleaded, bọcause there was nobody to be sued until 1802. A debt bar red by a sta tute of limi tations abroad may neverthe less be sued any exception in that statute, by which the bar, when confessed, may be avoided. Notwithstanding the profert of the exemplification of that statute, yet,if it contained any exception, on which the plaintiffs intended to reply, they ought either to have prayed oyer and spread the whole statute upon the record, or to have particularly pleaded such exception in their replication, and then to have made the allegation necessary to bring their case within it. This reasoning is grounded on the opinion that, if that statute can avail in this court, when pleaded in bar, the bar cannot be avoided, but by virtue of some provision of the same statute. As the pleadings now are, the court cannot take notice of any parts of that statute, but of those which are particularly shown in the bar. Although the rejoinder be bad, yet, if the replication is also bad, the defendants must have judgment, if the bar be good. Thence the great question in the cause is, whether to an action commenced in a court in this state, by the plaintiffs, inhabitants of New-York, on this note there executed by the defendants, inhabitants of this state, the statute of limitations of the state of New-York can be pleaded in bar. That the statute of another state cannot proprio vigore have the force of law in this state is very clear, and its effect in this court must depend on the laws of this Commonwealth. The party claiming the benefit of the note has sued it originally in a court in this state; the law of the state of New-York will, therefore, be adopted by the court, in deciding on the nature, validity and construction of the contract. This we are obliged to do by our own laws. So far the obligations of comity extends, but it extends no farther. The form of the action, the course of judicial proceedings, and the time when the action may be commenced, must be directed exclusively by the laws of this Commonwealth. 2. BULZER V. ROCHE March T. 1831, 11 Pick. Mass. Rep. 36; The material facts in the case are these: the cause of action accrued in 1821, more than six years before the commencement of this action, that both parties were domiciled at H. in Novain Mass. if scotia, and were subjects of the king of Great Britain, and that by the law of that country, an action of assumpsit is barred in the parties six years. That the plaintiff came first into this state in 1829; and this action was commenced within six years from that time. within 6 years after come here to reside. Here the parties remained subjects of the foreign country, until the term of limitation had expired, so that the plaintiffs remedy was extinguished there; but the court observed, that that circumstance could make no difference. The rule is this: that where the statute has began to run, it will continue to run, notwithstanding the intervention of any impediment, which, if it had existed when the cause of action had accrued, would have prevented the operation of the statute. For instance, if this action accrued in Nova Scotia, in 1821, and the plaintiff or defendant had left that country in 1825, within six years, in 1828, after the lapse of six years, the action would be as effectually barred and the remedy extinguished there, as if both had continued to reside in Halifax down to the same period. So that when the parties met here (Mass.) in 1829, so far as the laws of that country, by taking away all legal remedy, could affect it, the debt was extinguished. The plaintiff having a right to sue in our courts, must conform to our laws; and by that he is not barred by our statute of limitations. The plaintiff is within the exception of the statute and must have judgment on the verdict. 3. it was held York. LINCOLN V. BATTELLE, 6 Wend. N. Y. Rep. 475. The action was assumpsit to recover wages due the plaintiff as So in effect, overseer of estates in St. Croix; and his account was acknowl- in New edged to be correct, by the defendant's agent. But the defendant relied on a discharge from this debt by virtue of a royal grant from the king of Denmark; but the court held, that it went only to the remedy, and was no bar in this jurisdiction. BISSELL V. HALL, 11 2 Rand. Rep. 303. 4. Johns. N. Y. Rep. 168; HUBBELL V. Judgment of the justices' courts of other states are consider- The early ed as simple contracts only. Thus, Hall sued Bissell, before the decisions in justice, in debt on the judgment, which was recovered in Con- to consider So, in the 'case of the British Linen Company v. Drummond, 10 B. & C. 903, which was an action of debt; and it was averred that both the parties were domicilied in Scotland; and that the bond was there executed for the payment of a sum of money. It then also averred, that by the law of that country, the plaintiff had forty years from the execution of the bond, which had not yet elapsed. The defendant pleaded, that the cause of action did not accrue within six years; held, that the statute was a bar. N. Y. seem |