As the impression which I entertained when this question was argued in the court below, and which inclined me to dissent from the opinion of the majority of the members who decided it there, has only been strengthened and confirmed by subsequent reflection and the re-argument of it here, I shall be pardoned I trust, for the time I shall occupy in assigning my reasons for the more mature conclusion to which I have now arrived, but which I deem scarcely necessary after the clear and satisfactory opinion which has just been delivered by the Chancellor upon it.
Although the suit below was commenced by foreign attachment, yet as soon as the defendants appeared in that court, gave special bail and the attachment was dissolved, it became at once an action of assumpsit in the usual form between the parties on five several promissory notes united in as many counts in one declaration, made by the firm of E. L. Wells Co. to the order of the firm of W. J. Sooy, and by them endorsed to Shreve, who died pending the action in that court, and upon the suggestion of which, Jones, his administrator, was made party plaintiff in it. *Page 355
When these notes were made and when they were endorsed and when they became payable, and which was more than six years before the suit was commenced upon them, all the parties to them, makers, payees and the endorsee, were out of the State and living in New Jersey. And as the date and tenor and time of the maturity or payment of the respective notes were material allegations and were set forth in the declaration, and the date of the writ of foreign attachment and the commencement of the suit, all appeared by the record of the action before the court, it was prima facie barred by the first and general limitation of the statute in such case made and provided, upon the general plea of the statute pleaded by the defendants, and which in brief was that the causes of action in the declaration mentioned had not accrued to the plaintiff at any time within six years before the action had been commenced upon them. And up to this stage of the pleading, and as the case thus stood upon the record, the plea was not only a good plea, but it was an absolute bar to the action. The plaintiff was therefore obliged, whilst admitting the fact alleged in it, to avoid the legal effect of it by replying some subsequent provision, or saving of the statute, of which there are several kinds specially provided in the thirteenth, fourteenth and fifteenth sections of it, according as the one, or the other of them might be properly and legally applicable to the material facts and circumstances of his case, and which might consequently serve according to the true intent and meaning and construction of the act, to save and exempt it from the operation of the first and general limitation prescribed in the staute, and which would have the effect under the special circumstances of his case, to prolong the period first limited in the act and to afford additional time for the commencement of the suit. The special exceptions, savings, or exemptions from the operation of the general and principal limitation of the act to which I refer, are those which relate to what are usually termed the disabilities of infancy, coverture and *Page 356 incompetency of mind embraced in the thirteenth section, and which provides that if a person entitled to any action comprehended within the foregoing provisions of the act, shall have been at the time of the accruing of the cause of such action, under either of these disabilities, none of the general limitations previously prescribed in the statute shall be a bar to such action during the continuance of such disability, nor until the expiration of three years from the removal thereof. The fourteenth section 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 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." The fifteenth section also specially provides for several other classes of exceptional cases, which are likewise to be exempted from the operation of the general limitations primarily prescribed in the act, and on the occurrence of which, the periods first limped in the act in general, are to be extended for one year thereafter for the commencement of the suit. All these, however, constitute but special and exceptional cases to the principal and general limitations previously prescribed in the statute.
But the plaintiff, as I have before remarked, not being able to deny that his action was prima facie barred by the plea of the general limitation of the statute, as the case then stood upon the record, because it had not been commenced within six years after the accruing of his causes of action, sought by a special replication to that plea, to avoid the legal effect of it upon the record, to bring his case under the special facts and circumstances attending it, apparently within one, or the other, or both of the *Page 357 special and secondary limitations contained in the fourteenth section of the act. I say apparently he sought to do this, because on a critical examination of the replication with reference to the provisions of that section, and the two separate and distinct classes of cases which it was designed to save and exempt for an additional period of time, from the operation of the first and general limitation provided for in the statute, it is not easy to determine on which of those two provisions he intended in particular to rely, nor is it entirely clear that he did not, to some extent, misapprehend the true import and meaning of them, and confounding the distinction between them, endeavor by the peculiar terms in which it is expressed, to avail himself of both, or of either of them indifferently, as might best suit his purpose, or his proof at the trial of the case. The replication is as follows: "That at the time when the said causes 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." Indeed, from the stress which seems to be laid upon the alleged fact that the defendants resided out of the State when the causes of action accrued, and the variations and particularity with which that allegation is repeated in the replication, one might reasonably infer that the draftsman of it, attached more importance to it, than to the fact simply, as stated in it, that they were then out of the State, which he has been content to allege in as few words as possible, apparently. On recurring, however, to the two provisions of the fourteenth section, we find that the first was evidently designed to meet the case and save the action, when the defendant is out of the State at the accruing of the causes of it and merely continues out of it, until he shall have come into it so as to be served with process; and in such case, according to the manifest intention of that provision, *Page 358 it is immaterial where he then resides, or may afterward have his residence, for if he is out of the State simply when the cause of action accrues against him, the statute does not begin to run against the action so long as he continues out of it, nor until he has come into it in such manner that with reasonable diligence he may be served with process; the right of action in such case, is saved to the plaintiff during the continuance of the defendant out of it, and the action may be commenced at any time after his first coming into it thereafter, in such manner that by reasonable diligence he may be served with process, within the period originally limited and first provided for that purpose in the statute, which in the case of a promissory note is six years. And such is the construction and operation of the statute even when the note is made out of the State and is payable out of it, and notwithstanding both the plaintiff and the defendant then resided, and still reside out of it. There is no saving, however, in the statute by reason of the plaintiff's being out of the State when the cause of action accrues. But the second provision of the fourteenth section is very different from the first, which contemplates a case and provides a saving for it, of an entirely different nature; and it is not easy to perceive how any one on carefully perusing them, could misapprehend the distinction between them, or suppose that they could in any event be applicable to one and the same case, or that they could be properly blended and united in one and the same special replication to a plea of the general limitation of the statute. By virtue of that provision of the fourteenth section, if instead of being out of, the defendant is in, the State when the cause of action accrues, but after that departs from it and resides out of it, although the statute in such case has commenced running against the action, it is thereby arrested and suspended in its operation during his absence from the State and residence out of it, and until his first return thereafter into it, in such manner that by reasonable diligence he may be served with *Page 359 process; and in such case the time of such absence from the State and residence out of it, is only to be deducted from the period first limited and provided by the statute for the commencement of the action, to be computed from the date when the cause of action originally accrued against him. Yet, notwithstanding this broad and manifest distinction and the palpable contrast presented in the character of the two classes of cases provided for in the two paragraphs of that section, the plaintiff has strangely blended and confounded them together in the replication before us, by first alleging simply that the defendants were out of the State, when the causes of action accrued, and without adding anything more to that very important and only material averment contained in it, if it was true, and then proceeding to reiterate with various repetitions in the replication, what was wholly immaterial, idle and irrelevant, if the first averment was true, the allegation that they then resided and had hitherto ever since resided and still reside out of the State and without the jurisdiction of the court. For it by no means follows that if they did reside during the whole of the time alleged out of the State and without the jurisdiction of the court, that they continued during the whole of that time out of the State, or that they never were within its limits in the meanwhile so as to be served with process. And yet, as immaterial and irrelevant as this allegation was, in all its variations, in such replication, I think it clearly indicates one thing, and that is, that the pleader who drafted it, was not satisfied that the simple averment that the defendants were out of the State when the cause of action accrued, would be sufficient without some further allegation which would serve to state and show that they also continued out of it, or out of the reach of the process of the court, until this action was commenced, to bring the plaintiff's case and his special replication to the general plea of the statute, within the special provision contained in the first paragraph of that section. *Page 360
The position was distinctly assumed, in the argument, however, by one of the counsel for the defendant in error, that the mere averment that the defendants below were out of the State when the causes of action accrued, was of itself a good and sufficient answer to the plea, and that all the allegations which followed it in the replication in relation to their residence then and afterward out of the State, being wholly immaterial and irrelevant to the case, could and should be rejected as surplusage by the court. But does the provision of the statute on which he relies to take the case out of the operation of the limitation contained in it, imply or contemplate nothing more than that? The language of it is, "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." Had the defendants been in the State when the causes of action accrued and resided in it until six years thereafter, the action would have been barred by the general limitation of the statute, but as they were out of the State when the causes of action accrued, the sole purpose and object of this special provision in regard to their case was to suspend the operation of that limitation so long as they continued out of the State, or beyond the reach of legal process in it, and to extend the time for the commencement of the action against them just as many years more from the time they should afterward first come into it so that with proper diligence on the part of the plaintiff, they might be served with process in the action. It especially contemplates and provides for two distinct things, the accruing of the cause of action and the action thereafter to be brought upon it, and to limit the period of time which shall be allowed by law to elapse between them in such a case, and like every other provision or limitation of the act, it necessarily implies and involves a lapse of time between the inception of the right to sue *Page 361 and the continuation of the right to sue until a subsequent period; and as it proceeds in analogy to the similar exceptions, or savings in the statute in regard to infancy, coverture and incompetency of mind, upon the idea of the disability of the plaintiff to sue here when the defendant is out of the State, or the reasonable reach of the process of our courts, at the time of the accruing of the cause of action, it necessarily implies and requires a continuation of that inability to entitle the plaintiff to the benefit of the saving and exception which was designed for that reason to preserve and prolong his right to sue here as soon as such disability is removed, and for a certain specified period thereafter. And such being the evident import and design of the provision in question, the fact that the defendants were out of the State when the causes of action accrued in this case, would neither import, nor imply that they continued out, even a day afterward, much less, that they continued out of it for more than six years afterward, or until about the time this action was commenced, or until after the writ of foreign attachment was sued out against them; and no court could from the record presume or infer any such fact, without some averment in the replication to that effect to warrant it. Besides, a replication with the averment merely that the defendants were out of the State at the accruing of the causes of action in the case, would be substantially defective and insufficient, because it would not constitute a full and complete answer to the plea which it professed and proposed to answer and avoid. That plea in substance is that the plaintiff ought not to have and maintain his said action against the defendants, because they say that the said several supposed causes of action in the said declaration mentioned, did not, nor did any, or either of them accrue to the said plaintiff at any time within six years before the commencement of this suit c. It is not a plea that his action was not commenced more than six years ago, or when the causes of action actually accrued, for had it been such, the replication *Page 362 merely that the defendants were at that time out of the State, would have been a full and complete answer to it. But such a plea as that would have been an absolute nullity, and might have been treated as such by the opposite parties. It was no part of the plea, therefore, that the action was not commenced at the time of the accruing of the causes of it, which is the only time included in and covered by the allegation in question; on the contrary, the gist of the plea and sole matter of defence presented in it and to be replied to, was nothing less than the lapse of the six years which immediately succeeded it, that is to say, that it had not been commenced at any time within six years thereafter, and which entire period of more than six years which afterward elapsed before the suit was commenced, is consequently left wholly unnoticed and unanswered, unaccounted for, or undenied by the simple allegation contained in the replication, that the defendants were out of the State when the causes of action accrued; and which cannot possibly be aided by any intendment or construction of the court authorized by the rules of pleading, unless it can infer or intend from the often repeated allegation which follows it, that they then and afterward and up to the commencement of the action resided out of it, that they also continued out of it during the whole of that interval, or at least, that they remained so continuously out of the State during the whole of that period, that they could not with due and reasonable diligence at any time in the meanwhile be served with process; but which of course, would be a presumption of fact wholly unwarranted by either law or reason in any such case. On the contrary, there is a cardinal rule of pleading just the reverse of this, which requires that everything is to be considered and constured most strongly against the party pleading it, since it is to be presumed that every party presents and states his case as favorably for himself as possible. It is also a familiar and well settled principle of pleading that as all the limitations of the act are matters of extrinsic and subsequent *Page 363 defence specially provided by law and arise after the making of the contract and the cause of action has accrued, although it is a public and general statute, the court cannot judicially take notice of it in any case, unless it is specially pleaded; and for quite as strong a reason when a general limitation of it, such as in this case, has been pleaded by the defendant, and the plaintiff relies on some subsequent saving or exception contained in it, to exempt his case for a further period of time from the operation of that limitation, he must specially reply it to the plea with all the certainty and completeness necessary to bring his case as stated in such replication, clearly within the meaning an intention of the saving or exception relied upon by him; for every plea must answer all it professes to answer, and every special replication, or replication of new matter to a plea, whilst it confesses the facts alleged in it, must necessarily avoid the legal effect of what it admits, and be a full and complete answer to it, sufficient in law upon its face to avoid the legal effect of the fact or facts alleged in it, and admitted and confessed by the replication to it; and every saving or exception contained in the statute of limitations, when relied on by a plaintiff to take his case out of the operation of the general limitation prescribed in it, must be specially replied to the plea of such general limitation by the defendant. 1Ch. Prec. 345. And such a replication must appear upon its face, assuming the new matter of fact alleged in it to be true, to be sufficient in law to avoid the legal effect of the matter alleged in such plea and thus confessed by it, or it will be defective in substance and fatal on general demurrer; and if deficient in certainty and completeness in this respect, or involves any material misapprehension of the true meaning and purpose of the provision relied on, or the saving in question, it will be equally fatal on general demurrer.
In regard to replications of the kind we are now considering, Mr. Chitty states the rule under the statutes of England in a case like this to be, that the defendant was *Page 364 abroad when the cause of action accrued and that the action was commenced within six years after his first return. 1 Ch. Pl. 554, whilst Mr. Angell states it with still greater precision and particularity, and in accordance with all the forms and precedents which we find in the books on the subject. Ang. on Lim. chap. 26, sec. 8. The words "first return" no where occur in the English statutes, but as their meaning is that the limitation in such a case commences from the time of such first return into the kingdom, the particularity and certainty required in such a special replication, renders it necessary to insert such an allegation in it with the usual averments of time and place, in order to show that the plaintiff has brought his case clearly within the meaning of the saving or exception referred to, and has commenced his action within the time therein limited for the commencement of it.
To sustain the view which I have taken as to the insufficiency of the replication in point of substance, without some additional averment or allegation that the defendants after the accruing of the said causes of action remained and continued out of the State from that time until this suit had been commenced, so that they could not in the meanwhile be personally served with judicial process in it, I shall now refer to a few cases which have been decided on the subject both in England and in this country, where they have long had a similar saving in their acts of limitation, although I believe this is the first case of the kind that has ever arisen under our own statute. I shall first refer, however, to the well accredited and established form of a special replication to a general plea of the act of limitation, under a similar saving provided in the English statute, when the defendant was beyond the four seas at the time of the accruing of the cause of action, but who had since come into the realm and been served with process, as the same is sanctioned and approved by Mr. Chitty, and which contains three distinct and specific allegations, each of which is material and essentially necessary to constitute a good and sufficient *Page 365 replication of this description; first, that when the causes of action accrued the defendant was beyond the seas and that he afterward returned into the kingdom; secondly, that said return was his first return into the kingdom after the accruing of the causes of action; and thirdly, that the action was commenced within six years after his said first return into it. 2 Ch. Pl. 656. And the reason why each of these allegations is material and indispensable is because they are all necessary to rebut, evade and avoid the plea of the general limitation of the statute, by virtue of which on the declaration filed, the action was prima facie barred by the replication of new matter under the secondary provision and saving in question, and not only to show why the action was not commenced within the first six years after the accruing of the causes of it, but also to show that it was commenced as soon thereafter as was practicable under the circumstances, and within the additional time further limited and prescribed therefor under such special circumstances; and all of which the plaintiff was both bound to allege and prove, as a full and complete reply and answer to the general plea of the statute in order to entitle him to the benefit of such a saving.
From the cases cited in the argument for the defendant in error from the Massachusetts Reports, we find that the same form of replication in such a case substantially prevails in that State. In the first of them, the replication was that when the action accrued the defendant was out of the commonwealth, and so continued from that time to the purchase of the writ in the action, leaving no property therein which could be attached, to which the defendant specially rejoined that after the action accrued and more than six years before its commencement, he returned into the commonwealth, and upon this fact issue was joined. The saving in the statute of that State, contained no such qualification as accompanies the saving in ours in regard to a defendant in such case afterward coming into it in such manner that by reasonable diligence he may be served with process, and one of the questions *Page 366 involved in it turned upon the fact whether the defendant's having been in the commonwealth in the meanwhile as much as eighteen days at one time, but during which he kept himself shut up except on Sundays, was such a return or coming into it, as would within the purview of the saving in question, defeat the plaintiff's action; but the court held that it contemplated such a return or coming into the commonwealth as would enable a creditor using due diligence to arrest the body of the defendant as security for the debt. White's Admr. v. Bailey,3 Mass. 270. In the second case cited, the replication was substantially the same as in the first, that when the cause of action accrued the defendant was out of the commonwealth and did not return into it until within six years next before the commencement of the action c. Dwight's Admr. v. Clark, 7 Mass. 514. In the next case the replication was that at the time of making the several promises in the declaration mentioned, the defendant was in foreign parts beyond the seas and without any of the United States, and had continued and remained beyond the seas without the United States from thence to the time of the purchase of the writ. To this replication the defendant demurred and assigned for cause that the plaintiff was a foreigner and never was an inhabitant of, or resident in, any one of the United States; and the replication was adjudged good. Hall v.Little, 14 Mass. 203. In the last case decided in that State to which I shall refer, (and where it is proper to remark they have a provision in their statute, as they also have in the English statute, not to be found in ours, which saves the action as well on account of the plaintiff's being out of the State as the defendant's being out of it, when the cause of it accrues) to the general plea of statute the plaintiff replied that when the cause of action accrued to him, he was beyond the sea, without any of the United States, to wit, at London c. and had ever since so continued, and was still there. The defendant rejoined that within six years after the accruing *Page 367 of the cause of action and ever since until the commencement of the suit, the plaintiff had an agent who in each year during that time, had been within the commonwealth and had been duly authorized to collect and receive his supposed debt from him. To this rejoinder the plaintiff demurred, and the demurrer was sustained. Wilson v. Appleton,17 Mass. 179. The decision cited from Wilson's Reports under the English statute, is to the same effect as the case last adverted to. In that case the defendant pleaded non assumpsit infra sexannos. The plaintiff replied that he was abroad at the time of the making of the several promises in the declaration mentioned, to wit, at A. in the kingdom of S. and that he had ever since been, and still was, out of the kingdom of Great Britain. To this replication the defendant demurred and the plaintiff had judgment. 3 Wils. 145. In concluding this review of the cases cited, it only remains for me to add that the inference clearly deducible from them in my opinion is irresistible that the only material allegation contained in the replication in the present case, that the defendants were out of the State at the time when the causes of action accrued, without any allegation whatever, that they so continued and remained out of it, or as to where they were in the meanwhile until the action was commenced, is not sufficient to sustain it, and that it must consequently be held to be deficient in substance and bad on general demurrer.
It seemed to be considered by the counsel for the defendant in error in the argument of the case, that there could be no appropriate terms or method in which any such additional fact could have been averred by them in the replication, without alleging as they contended, that the defendants did not afterward come into the State in such manner that by reasonable diligence they might have been served with process, which would have been a negative allegation purely, and which they further contended it would not be proper for them to make, because it would impose on the plaintiff the duty of proving such a *Page 368 negative allegation, and that the law never requires a party to prove a negative in any stage of pleading. The cases cited, however, abundantly show that there was no occasion or necessity for alleging such a fact in that particular form, for the statute does not pretend to prescribe any terms, much less the particular terms, in which the saving shall be replied. But even, if it were necessary to reply it in the express words of the statute, the objection taken to it, would still be more specious than sound, for the principle of law referred to in support of it, is not a rule of pleading, but a rule of evidence merely, and can have no application to any case, until it comes to the proof upon the actual trial of it on the issues joined; and as a matter of practice, the party who traverses and takes issue on a negative allegation material to any stage of the pleading, affirms the converse of it, and has the burden of proving the contrary of it on the trial. Take for instance and for the sake of illustration, the very plea in this case, the plea of the defendants to which this replication has been entered, and it will be found that almost every material allegation in it is a negative allegation purely, as that the plaintiff ought not to have and maintain his said action against them, because the said supposed causes of action in the said declaration mentioned, did not, nor did any or either of them, accrue to the said plaintiff within six years next before the commencement of this suit, c. And yet, if the plaintiff, instead of specially replying to, had traversed and taken issue on this plea, upon him would have devolved the burden of proving on the trial that the action had been commenced within the required time, and not upon the defendant of proving the negative of the issue joined. And the same remark and distinction will also apply with equal force to the plea of the general issue in every civil action known to the common law, for they are all negative in their character purely and in the broadest sense conceivable, but when traversed impose upon the plaintiff the duty and the obligation of proving generally all the material and affirmative allegations contained in the declaration. *Page 369
It only remains before concluding my opinion in this case to notice another, point presented in the argument of the counsel for the defendant in error, which was, that inasmuch as it is a fact admitted on the record by the demurrer of the defendants below to the replication in question, that they were out of the State when the causes of action accrued, and there is no allegation in any of the pleadings, and it does not appear that either of them was. ever in it between that time and the commencement of the suit, and were even still out of it when it was begun by the writ of foreign attachment, which, of course, imported that they were yet out of it when it was issued, neither of the savings provided for in the fourteenth section of the statute could, have any proper application to the case, because when the remedy for the recovery of the debt is by process of foreign attachment, there can be no occasion to wait for the defendant to come into the State, and therefore the Legislature could not have contemplated that any such saving or exception could ever be required for, or applied to, a case commenced as this was, and whilst the defendants were yet actually out of the State, and for aught that appeared to the contrary, had never in the meanwhile been, within its limits. If we were warranted in presuming that such was the intention of the Legislature, for the same reason the presumption perhaps, would be quite as warrantable that the intention was that in such a case the action should be barred by the general limitation of the statute, that is to say, in six years from the accruing of the causes of it, unless the process of foreign attachment for the recovery of the debt should be resorted to within that itme. We are not permitted, however, to determine the question by any such presumption either way, but must take the statute as we find it and construe all its provisions together according to the plain and obvious import of the terms employed in them. And yet, all that was said by counsel on that point, was strictly correct, so long as the suit which is instituted in this method retains its original *Page 370 character and nature of an ex parte proceeding in rem to a judgment of condemnation against the property bound by the foreign attachment; for whilst it continues such, there is no appearance of the defendant, no declaration filed, no defence whatever pleaded, no issue joined and no trial had, and, of course, in such a case, no question of limitation can arise, and the statute can have no application at all to it. But when the defendant in such a writ voluntarily appears in court within the time prescribed by law and gives special bail in the action and the attachment is dissolved, it is functus officio, it has performed its office and is at an end for all the purposes of the case in which it was issued, for it then becomes an action in personam, and assumes all the qualities and characteristics of such an action and is to be prosecuted and conducted in all respects the same as if the defendant had been served with original process in it. There is therefore no good reason for holding that such a case as this, is not within the meaning and intention of the saving contained in the first paragraph of the fourteenth section of the statute. Indeed, to hold otherwise, as has been contended for by the counsel for the defendant in error, that it does not apply in a case where the action is commenced by foreign attachment, would have the effect practically to abolish every limitation of the statute in such a case as this, even if the defendants below had been prepared to allege and to prove that they had been repeatedly in the State in the meantime since the causes of action had accrued, and the plaintiff could on any of those occasions with reasonable diligence have had process served upon them.
*Page 371The judgment below was reversed.