dissenting, said:
“ Statutes of limitation are for the repose of debtors. It has been held, that a volunteer soldier or officer in the army of the United States does not lose his residence ; he may be sued, and service may be had upon him by copy left at his place of residence.”
It seems to us that the absence of the defendant, contemplated in this section of the statute, must be such as would prevent the plaintiff, during its continuance, from enforcing his cause of action by a judgment in personam:, against the defendant. If the absent defendant maintains his residence in this State, so that such service of process can be had on him by copy, as would authorize the rendition of a personal judgment against him, such defendant can not be said to be “ absent,” within the meaning of that word as used in section 216 of the code, and the time of such absence of such defendant will be computed in any of the periods of limitation.
In the case at bar, there was evidence introduced on the trial, tending to prove that Albert G. Sloo, deceased,in his lifetime, was the original contractor and half owner of the United States Steam Ship Line from New York to Chagres, a company engaged in carrying the Unites States mails; and that, from the time he took the mail contract *199till 1858, he was absent from his home in Knox county, Indiana, for long periods of time, looking after his interests in the mail line company. It seems to us, that, in these periods of absence, it can not he said that said Sloo was absent on public business, although the company in which he was so largely interested was engaged in public business. On the contrary, we think, the evidence showed or tended to show, that he was absent looking after his private interests in a company which was engaged in a public enterprise. In our opinion, this absence was not an absence on public business within the meaning of the statute.
4. There remains one other point, which we ought perhaps to consider aud decide in this case. It is earnestly insisted by appellee’s counsel, that because the statute authorized the trial of a claim against a decedent’s estate, such as this suit was, without pleadings or issues, therefore the eraor of the court in overruling the demurrer to the amended second paragraph of the appellee’s reply to the third paragraph of the appellant's answer, was a harmless ei’ror, for which the judgment .below ought not to be reversed. Upon this point, we have been referred by appellee’s counsel to an act approved March 18th, 1877, which was in force at the time of the trial of this cause, and which was intended and was supposed to be an amended section 66 of the act for the settlement of decedents’ estates. Acts 1877, Spec. Sess., p. 37. In this act, an attempt was made to amend said section 66, inter alia, by adding thereto the following proviso: “Provided, That all matters of valid defence, except set-off or counter-claim, may bo given in evidence without special plea.” This act of March 13th, 1877, was an attempted amendment of said section 66, as amended in and by the aforesaid act of February 20th, 1855, which latter amended section, as we have seen, was illegal, invalid and void, It follow's, therefore, *200that the amendatory act of March 13th, 1877, is invalid and void; for a valid law can not be enacted by amending an invalid and void law. Cowley v. The Town of Rushville, supra.
But substantially the same provision will be found in the original section 66 of the decedents’ estates act, which original section is, as we have shown, now in force as the law of this State. In said original section 66, the language used on the point under consideration is as follows: “And all matters of valid defence, except a set-off, may be given in evidence without any special plea.” It will be seen from this provision, that, except as to a set-off, special pleadings are not required, nor are they prohibited. In such a case, the parties may, if they choose, plead specially; and, if they elect to and do plead specially, they will be bound by their special pleadings and the rulings of the court thereon, to the same extent as if their special pleadings were required by law. This conclusion is in perfect harmony with the practice and pleadings which have been adopted and grown up, in the courts of this State, under the provisions of said sections 65 and 66, as amended by the act of February 20th, 1855, during the last quarter of a century. • Alexander v. Alexander, 48 Ind. 559, and cases there cited. Although we have held in this opinion, that these amended sections 65 and 66, under the" act of February 20th, 1855, were illegal and void, yet it does not follow by any means, that the practice and pleadings, in claims against decedents’ estates, which have grown up under these amended sections, and been í’ecognized and acted upon by all the courts of this State, ought to be abruptly disturbed and set aside. There is nothing in the original sections 65 and 66, which are now the law of this State, necessarily in conflict with or prohibitory of our conclusion on the point now under consideration.
"We adhere firmly to our decision of the main questions *201involved in the record of this cause, and our views in relation thereto as expressed in our original opinion, and we have nothing to add thereto.
Original opinion filed at May Term, 1879. Opinion overruling petition for a rehearing filed at November Term 1879. Note. — Niblack, J., being a party to the record, was not present at or during the consideration of the petition for a 'rehearing in this cause.The petition for a rehearing of this cause is overruled.