Sacia v. De Graaf.

Curia, per Savage, Ch. Justice.

The only question which can arise in this case is, whether the defendant’s having obtained a discharge, under the insolvent act of 1811, protects the plaintiff from the consequences of not prosecuting within six years. By the 2d proviso to the 5th section of the act of limitations, (e) excuses for disability in the plaintiff, are confined to infancy, coverture, insanity, orimprisonment. The only excuse allowed by the statute, arising from the act of the defendant, is his being out of the state when the cause of action accrued. Though the defendant’s virtual protection from prosecution by his discharge, produces the same result as his abscence from the state, yet we are not warranted by any rule of construction, in deciding, that every cause which produces the same effect as the one mentioned in the act, comes within it. It is true, that the reason why the absence of the defendant from the state, excuses the plaintiff fro¡yt prosecuting, is, that the defendant is beyond the reach of the process of the Courts : and the defendant’s discharge p]aceci jj¡m eqUapy out 0f the reach of any recovery against him, till the decision by the Supreme Court of the United States, in Sturges v. Crowninshield. But it is not for the Court to extend the law to all cases coming within the reason of it, so long as they are not within the letter. Several cases of equal difficulty may be supposed, and have doubtless often occurred, which have never been holden within the exceptions of the statute. Ignorance of the requisite evidence to prove the plaintiff’s debt, or a residence of the defendant in some obscure or remote part of the state, unknown to the plaintiff, would suspend his recovery, and sometimes more effectually too, than his residence in a neighbouring state : and yet I believe the statute has never been thought to except these, and the like cases, from its operation. The Court below ought to have nonsuited the plaintiff.

Judgment reversed.(f)

(e) 1 R. L. 186.

(f) It has been decided in Massachusetts and Pennsylvania, that if the plaintiff’s action be for a fraud, or grow out of the fraudulent act of the defendant, the action may be brought at any time within six years next after the fraud is discovered. (The first Massachusetts Turnpike Corporation v. Field et al. 3 Mass. Rep. 201. Jones v. Conoway et al. 4 Yeats' Rep. 109.)