Dissenting :
I fully concur in the position and conclusion of the fore going opinion, that the note sued on was made and payable in this State, and that it must be regarded as a West Virginia contract, but inasmuch as it appears that the defendant had been a non-resident of this State for more than ten years after the maturity of said note and prior to the institution of this action and was as such proceeded against by attachment and order of publication or its equivalent, by service of process out of this State, it seems to me, the most material question presented by the record in this case is, whether or not the defendant obstructed the right of the plaintiff to bring this form of action; that is, to proceed against him as a nonresident of this State ?
Our statute provides, that, “Where any such right * * * shall accrue against a person who had before resided in this State, if such person shall, by departing without the same * * * obstruct the prosecution of such right * * * the time such obstruction may have continued shall not be computed,” &c. Sec. 18, ch. 102, Acts 1882, p. 303.
It seems to me, that the true intent and meaning of the statute is, that it shall apply only where it appears the plain*30tiff lias been obstructed in his right to bring the kind of action or proceeding in which he invokes the assistance of the statute. The important enquiry is, was the plaintiff obstructed by the defendant in his right to bring this action ? Is it not entirely immaterial that the defendant resided in this State when the note was made and that it is a "West Virginia, contract, when it appears that he has been a resident ot the State of Maryland for more than ten years after the maturity of the note and prior to the bringing of this action ? This action was brought against the defendant as a non-resident and process was served upon him in the State of Maryland, where he has resided ever since 1871. For ought that appears the plaintiff might have sued him and attached his property in this State and served process on him in Maryland as well five or ten years before as he did when he brought this action, f can not discover how the residence of the defendant out of the State obstructed the plaintiff’s right to bring this kind of action. On the contrary, his non-residence was essential to the bringing of this action and it could not have been brought if he had not been a non-resident. TIo’w then does it appear that the plaintiff was obstructed, by the defendant in his right to bring this action'? Tt seems to me that the plaintiff in order to avail himself of the benefit of the statute should establish such a state of facts as will bring his case within its protection. It might be, that if he had shown, that, so far as he could discover or knew', the defendant had no property in this State subject, to attachment prior to the commencement- of this action, that that fact would entitle him to the benefit of the statute. But so far as this case discloses the defendant may have had property or effects in this State subject to attachment over since he left it.
It does not appear to be enough under the statute for the defendant to depart out of the State, but he must “by departing without the same obstruct the prosecution of such right.” It is not controverted that, if this action had been commenced by personal service upon the defendant in this State, the case would be within the statute, because the defendant by departing out of the State obstructed the plaintiff’s right to prosecute such action. The question then arises did the pleadings in this action properly present the questions above *31suggested ? Some members of the Court are of opinion that in the trial of the action upon the issues as they were made up in this case, neither the attachment, which is simply an auxilary proceding and not a part of the action itself, nor the process, could be looked into or considered by the Court. That so far as the record and pleadings, which the Court could consider, disclosed, the action appeared to have been commenced by personal service upon the defendant in this State, and so considering the facts the plaintiff was plainly entitled to the benefit of the statute. The defendant by appearing to the action and pleading the statute of limitations in bar of the action gave the court jurisdiction over him personally, and the plaintiff by his replication that the defendant by departing out of the State had obstructed his right to prosecute his action, brought himself within the protection of the statute. Then, if the defendant desired to raise the questions above suggested, he should have rejoined that he had been in this action proceeded against by attachment as a non-resident and that process had been served upon him outside of this State. This would have presented one of the questions suggested. If it had been desired to raise the other question suggested, the plaintiff should have sur-rejoined, that so far as he knew or could discover by reasonable diligence, the defendant never had airy property or effects within this State subject to attachment at any time before this action was commenced, or until it was commenced, or within ten years before, using the one form or the other as he might be advised was most available.
Such being the views of a majority of the Court they think the judgment of the circuit court was properly reversed, but none of them, as I understand, consider that the questions above indicated or suggested were decided by this Court in this case. I have, therefore, without passing upon any of said questions or the propriety of the decision in this case, deemed it proper to make the foregoing statement in order that no misapprehension may arise out of the opinion delivered in this case, and that the construction placed upon it bv the majority of the Court may be known.