THIS case was twice argued in the Court of Errors and Appeals, the first time at the June Term, 1860, and again at this term by order of the court, before HARRINGTON, CHANCELLOR and WOOTTEN and HOUSTON Justices.
The case came up on a writ of error to the Superior Court for Sussex County, and was commenced in the court below by a writ of foreign attachment issued at the suit of Jones, the administrator of Shreve, who was the endorsee of W. and J. Sooy, against Wells and Sapping-ton, lately trading as E. L. Wells Co., on the 24th of December, 1857, on a cause of action consisting of five promissory notes made by the firm of E. L. Wells Co., payable to the order of W. J. Sooy, at the Mechanics' Bank in the city of Philadelphia, and by them endorsed to Shreve, the decedent, the first of which bore date June 26th, and the last September 5th, 1851, and all of which had matured and become payable more than six *Page 331 years before the suit was commenced by the issuing of the foreign attachment. The aggregate amount of the notes was $2,583. 50, and at the making and the endorsement and maturity of them, all of the parties were out of the State and resided in New Jersey, and none of whom had since resided in this State. Before judgment of condemnation was obtained on the foreign attachment, the defendants, Wells and Sappington, gave special bail in the court below and dissolved it, and thereupon the suit proceeded by the filing of a declaration in assumpsit on the promissory notes by the plaintiff, the administrator of Shreve, the endorsee, to which the defendants pleaded the statute of limitations; that is to say, that the causes of action did not accrue to the plaintiff at any time within six years before the commencement of the suit. To this plea the plaintiff replied specially, "that at the time when the said casues of action accrued against the said defendants, they were out of the State of Delaware, and at the accruing of the said causes of action, both of them resided out of the State of Delaware, and from thence until the present time have each resided and both of them do reside out of said State and without the jurisdiction of said court." To this replication the defendants entered a general demurrer, which the court below overruled and gave judgment thereon for the plaintiff. This case depends on a question of pleading not involved in mere technicality, but presenting the question whether on the face of the record the plaintiff below shows any cause of action upon which the court can give judgment.
Without now referring to the process by which the defendants below were brought into court, the case is simply an action of assumpsit founded on five promissory notes, to which the defendants have appeared and pleaded to issue. These notes were drawn and matured more than six years before the action was brought, which is the period of limitation applying to them, and that plea is pleaded, and is a bar to the action, unless the plaintiff by his replication, brings himself within one of the exceptions to the statute. The exception relied on, is the saving of the act which provides that, "If at the time when a cause *Page 345 of action accrues against any person, he shall be out of the State, the action may be commenced within the time limited therefor, after such person shall come into the State in such manner, that by reasonable diligence he may be served with process."
The exception intended to be set up is, therefore, that the defendants were out of the State, so that they could not be served with process at the accruing of the cause of action, and had been ever since to a period of within six years of the commencement of the action; which again puts the plaintiff right in court and entitles him to recover. By the plea, he stands barred, but by this exception the bar is removed; and the truth of it being admitted by the demurrer, he would be entitled to judgment.
The question then is, has the plaintiff replied this exception? Does the replication in any frame of words, say that the defendants were out of the State when the cause of action accrued and continued to be out of it either hitherto, or up to any time within six years of commencing the suit? That is what is denied by the demurrer, and that is the issue upon which the case turns. If the replication says this, the plaintiff avoids the bar of the statute and is entitled to judgment; if it does not allege such absence of the defendants from the State, or out of the jurisdiction of this court, the act bars his suit and he cannot recover. And this question is not to be decided on the form of words merely. It is not a special demurrer, and if the replication substantially states what the law requires to bring the case within the exception, it is sufficient. I may even go further, as the plea of limitations is not favored, and say that neither strained construction, nor inference should be made against the replication. But on the other hand, no inference can be had to make it say what it does not say. It is the plaintiff's pleading, and the general rule is that the words used must be taken most strongly against the pleader, as he must be supposed to have stated his case as his proof *Page 346 would warrant. This rule is equally applicable, whether the issue is upon a general, or special demurrer. But without resorting to any inference for, or against this replication, does it assert what the law requires to make an exception to the bar of the act? It says that "at the time when the said cause of action accrued, the defendants were, and each of them was, out of this State, and both of them at the accruing of the cause of action did reside out of this State, and from thence until the present time, have both resided and do reside out of this State and without the jurisdiction of this court." The point of doubt on this replication obviously is whether it alleges that the defendants continued to be out of the State from the accruing of the cause of action. When it was commenced the suit was barred; and though the replication very fully alleges that the defendants were, and each of them was out of the State at that time, it says of their continued absence from thence to the present time, that they have both resided and yet reside out of the State and out of the jurisdiction of the court.
If a traverse had been made to the only part of this replication that is material to the present inquiry, the issue would have been on the question whether the defendants resided out of the State and out of the jurisdiction of the court which is immaterial, when the point is, whether they were in fact out of the State so that by reasonable diligence they could not be served with process.
It was not denied, indeed, the replication admits, that an allegation of residence out of the State at the accruing of the cause of action, would not be sufficient to remove the bar of the statute; and no more can such allegation be sufficient as to the continuance of such residence; and the change of terms from what is required by the law to others of a different signification, instead of affording an inference in support of the replication, suggests the contrary. Indeed, a continued residence out of the State, is entirely consistent with the frequent presence of the defendants in the State. *Page 347