I regret that I have not been able to agree with a majority of the court in the final decision of this case, and especially as a difference of opinion in this, the court of Errors and Appeals, presents the defective feature of the court of the highest and last resort. The case was decided below in Sussex by the Superior Court, in which three Judges sat, two at least of whom must have concurred in the decision; it is now before this court to be decided by one of those who sat below and two others, and a difference of opinion in this court, results in the establishment of the law of the State by the judgment of two Judges against the opinion of three others.
The only question presented for the consideration of the court is raised by the demurrer to the replication to the defendant's plea of the statute of limitations. It is a novel question, now for the first time raised, and is not one so much of construction of the statute perhaps, as of pleading.
The statute of limitations never contemplated a case of this sort. It was evidently designed to provide for two classes of cases, and to interpose a saving, whereby the operation of the statute as a bar, would in such cases be prevented. First, the 14th section of the act, chapter 123 of the Revised Code, provides that, "If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into the State in such manner that by reasonable diligence he may be served with process: And if, after a cause of action shall have accrued against any person, he shall depart from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action."
The first clause in my judgment, contemplates the case of the defendant being out of the State at the time of the accruing of the cause of action, and subsequently returning or coming into the State. In such cases the pleadings would be plain and simple. A replication to the plea of *Page 348 the statute of limitations would be, that at the time of the accruing of the cause of action, the defendant was out of the State, and did not return or come into the State in such manner that by reasonable diligence he might have been served with process, until the _____ day of _____ and that the action was commenced within the limited time therefor, which in this case would be six years from that time, that is, from the time of the return into the State.
Under the second clause of the saving section, it would be necessary to show when the cause of action accrued, because the act is running when the defendant departs from the State, and to ascertain whether the statute operates as a bar, the pleadings must show how long it run before the defendant's departure from the State, and also when he returned, so as to enable the court to determine the time of absence. Proof of the time of departure from the State would devolve upon the plaintiff, and that fact being shown, if the defendant relies upon that portion of the act which saves him, it is incumbent on him to plead and prove the fact of his return into the State in such manner that by reasonable diligence he might have been served with process, and that such return was in time to complete the operation of the statute as a bar after deducting the time of absence. Otherwise the plaintiff would be required to prove a negative. The replication would be that the cause of action accrued on the _____ day of _____ that afterwards, to wit, on the _____ day of _____ the defendant departed from and resided out of the State and did not return in such manner that by reasonable diligence he might have been served with process, until the _____ day of _____ and that the action was commenced within the time limited therefor, deducting the time of absence. In such a replication would it be sufficient for the defendant to take issue? If so, on whom would theonus probandi rest? Would it be required of the plaintiff to prove that the defendant departed from the State at the time alleged, *Page 349 and that he did not return untul the time mentioned. The first allegation is an affirmative one and the plaintiff would be bound to prove it; but the second is a negative one, and if the defendant attempts to controvert the fact, he can only do so by rejoining, that although it is true that he departed from and resided out of the State, he returned and came into the State at an earlier day than that named by the plaintiff, to wit, on the _____ day of _____ in such manner that by reasonable diligence he might have been served with process. Upon this rejoinder, issue would be taken, and if the defendant makes it true, and the facts disclosed by it are sufficient to give effect to the statute so as to operate as a bar, the plaintiff will of course fail; and in my judgment it is essentially necessary that there should be an averment of such facts made and proved by the defendant.
The case now under consideration does not fall within either of these saving clauses, though the first may perhaps, be applied to it. The defendants were non-residents at the time of the accruing of the cause of action, and continued to reside out of the State. To such cases the statute of limitations was not intended to apply, for the plain reason, that a non-resident cannot be sued, not being within the jurisdiction of the court, and therefore the creditors of such persons are not deprived of their rights by any limitation. But another and ample remedy is provided in such cases which is by foreign attachment, and which was resorted to by the plaintiff in this case. The defendants finding their property had been seized by attachment, were compelled to cause special bail to be entered, or suffer it to be sold for the benefit of their creditors. Having given special bail, they pleaded to the action the statute of limitations, to which the plaintiffs replied, "That at the time when the said cause of action against said defendants in said declaration mentioned accrued, they, the said Edward L. Wells and Samuel Sappington, the said defendants, were and each of them was out of the State of Delaware, and that they, the said *Page 350 defendants, did both of them at the accruing of the said cause of action, reside out of the said State of Delaware, and from thence until the present time have each resided and both of them do reside out of said State, and out of the jurisdiction of said court."
To this replication the defendants demurred generally. Upon the demurrer the question arises which is presented for the consideration of the court. The question presented by the pleadings is, whether the replication is sufficient in form and substance? It is insisted that it is not, because it does not aver that the defendants were not only out of the State at the time of the accruing of the cause of action, but that they were out during the whole period of time from thence to the commencement of the suit, and did not come into the State in such manner that by reasonable diligence they Could have been served with process.
The second clause of the saving section of the act declares that, "If after a cause of action shall have accrued against any person, he shall depart from and reside out of the State, the time of his absence until he shall have returned into the State in manner aforesaid, shall not be taken as any part of the time limited for the commencement of the action." I apprehend in a case falling within this clause of the act, it would only be necessary in replying to the plea of the statute of limitations, to aver that after the accruing of the cause of action, to wit, on the _____ day of _____ the defendant departed from and resided out of the State and did not return into the said State until the _____ day of _____ and that the action was commenced within the time limited therefor, deducting the time of absence. I think it will not be contended that in such a case, it is necessary to allege that the defendant was, during the period of time which he resided out of the State, actuallyout and that he was not during that time in the State, for the law evidently makes non-residence a saving from the operation of the statute, and if the averment of non-residence in the one *Page 351 case is a sufficient compliance with, the terms of the act, I can see no reason why it should not be so in the other. It is very evident that the legislature made no such distinction in the two clauses of the act. The construction now given it, and the averments held necessary to bring a party within its saving clause in my judgment involves an inconsistency, which cannot be reconciled on any principles of reason or policy. If in either case it were necessary to aver that the defendant not only resided out of the State, but that he was all the time out, it would seem to be much more reasonable that it should be done in the case of a defendant who resided in the State, but who went out for a temporary purpose, than in the case of a non-resident defendant, for in the one it would be presumed that he returned, whereas in the other the presumption would be that he continued in the place of his residence.
The same strictness is not required in pleading facts, which rest exclusively in the knowledge of the opposite party, as where they are entirely in the knowledge of the party pleading: Therefore if in this case the replication alleges the fact to a common intent, that the defendants were out of the State, which is a fact within their own knowledge, the rules of pleading are substantially and sufficiently complied with, and if the allegation be untrue, it is for them to show that they were in the State, and at such time as would make the statute available to them.
The cases so much relied upon as applicable to this case, are by no means in point. No one doubts for a moment, that where a plaintiff relies upon a disability, such as infancy or coverture to save him from the operation of the statute, he is bound to plead it with precision, and equally so to prove it, and for the very reasons I have stated, they are affirmative facts, resting exclusively in the knowledge of the party pleading them.
The statute of limitations is not a meritorious, though a legal, defence. It is a mere presumption of payment arising from the lapse of time, often resorted to for the *Page 352 purpose of avoiding the payment of a just and subsisting debt, and therefore it is not favored in law, and the same rigid rules of pleading which may properly govern other cases and which is made the hinge upon which this case turns, should not be applied in cases of this sort.
Much reliance seems to be placed upon the form of replication cited from Harris' Entries, which avers that the defendant was out of the State and resided out, and that he was at _____ and did not return until the _____ day of _____ c. It has not been pretended in this case that it is at all necessary to aver, that the defendants were at a particular place, and I apprehend it will not be claimed by any lawyer as an essential allegation. Why both terms are used, that is, out and resided out, does not appear. The replication was probably framed to suit the statute of Maryland, which may differ materially from ours; but if it contains one unnecessary averment it may be incumbered with others. However, it is not a legal decision and it has not been shown by any authority that it is entitled to the credit even of a good form. It may contain sufficient averment and probably does, for it uses the terms, all the time out and resided out and that they resided at a particular place. Will it be said that all these facts must be proved? If so, by whom must the place of residence out of the state be shown? It may be said that all that part of the replication is surplusage and need not be proved. So may some other fact averred be useless.
I do not doubt for a moment the general principle that when a party would avail himself of the saving clause of the statute to prevent its operation as a bar to his claim, he must show himself within the saving, and I maintain that in this case, the plaintiff has complied with this principle sufficiently to take his case out of the operation of the statute, until the defendants aver that though they were out of the State and resided out of it, they had been in the said State at such time and under such circumstances as would prevent the operation of the saving *Page 353 clause. No distinction is recognized in the application of the statute in cases instituted by foreign attachment, capias or summons, and it is true that after special bail is entered, the proceedings are the same in the one case as in the others; but in the case of a non-resident who is not within the reach of the ordinary process of the court, the foreign attachment is the only remedy; by that, his property may be reached, though his person cannot, and this is my answer to some remarks in reference to the plaintiff's coming into this State to institute suit, being a non-resident himself. One who can only be found by thus seizing his property, is not among those for whose benefit the statute of limitations was enacted, though there are cases where they will be entitled to its benefits as much as citizens of the State, but a more stringent rule should be observed in applying it. The statute never runs against a non-resident so long as he remains out of the State, whilst it never ceases to run against a resident, unless he departs from and resides out of the State; therefore, unless a considerable degree of strictness is used in its application in the case of the non-resident, he may, by coming into the State for a very limited time, without the knowledge of his creditor, avail himself of the benefit of the statute, and thereby avoid the payment of a just debt; but the resident debtor has no such power, because the statute begins to run against his creditor from the accruing of the cause of action, and does not cease to run, unless he departs from and resides out of the State, which is a fact that would operate as a saving to the creditor and being an affirmative allegation, the burden of proof of such absence would rest on him, and he has in the case of absence from the State, ample remedy without being driven to the necessity of actual proof of such absence. He may proceed under the attachment law, as. the plaintiff did in this case, and if he is not able to make an affidavit of his debtor's absence or non-residence, he may issue the ordinary process of the court and on the return of the sheriff, that the defendant is not *Page 354 to be found, he will be entitled to the writ of foreign attachment.
If an action is commenced against a non-resident debtor, there is no statute of limitations to bar the plaintiff's claim, unless the defendant has been in the State within the limited time for the commencement of such action, and in such manner that by reasonable diligence he might have been served with process, and the presumption is that a non-resident is out of the State, and if he does come into it, in such manner as to entitle him to the benefit of the statute, it is a fact within his own knowledge, and an affirmative one, which he would be bound to allege and prove.
Under these views of the case I am of opinion that the judgment of the court below, is, in no wise erroneous, and therefore ought to be affirmed.