Gonder v. Estabrook

• Decision Date: 01 January 1859
• Citation: 33 Pa. 374
• Parties: Gonder versus Estabrook.
• Court: Pennsylvania Supreme Court

33 Pa. 374

Gonder versus Estabrook.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Lancaster county.

Franklin, for the plaintiff in error.—The words "beyond sea," in the 27th section of the Act 30th July 1842, Brightly's Purd. 540, pl. 14, have received a judicial construction in the Supreme Court of the United States, and in the courts of nearly every state in the Union, and have been uniformly regarded as a technical expression, meaning out of the limits of the state: Faw v. Roberdeau's Executor, 3 Cranch 174; Murray v. Baker, 3 Wheat. 541; Shelby v. Guy, 11 Id. 361; Bank of Alexandria v. Dyer, 14 Pet. 141; Galusha v. Cobleigh, 13 N. H. 79; Ruggles v. Keeler, 3 Johns. 263; Pancoast v. Addison, 1 H. & Johns. 320; Forbes v. Foote, 2 McCord 331; Johnston v. White, T. U. P. Charlt. 140; Richardson v. Richardson, 6 Ham. 125; West v. Pickeismer, 7 Id. 235; Field v. Dickenson, 3 Pike 409; 2 U. S. Dig. 810-11, and cases there cited. If we admit that the cases of Ward v. Hallam, 2 Dall. 217, and Thurston v. Fisher, 9 S. & R. 288, are to be regarded as binding on the construction of the Act of 1713, there are obvious reasons for giving a more liberal construction to the Act of 1842.

Hiester, for the defendant in error, cited and relied on the cases of Ward v. Hallam, 2 Dall. 217, and Thurston v. Fisher, 9 S. & R. 288.

The opinion of the court was delivered by LOWRIE, C. J.

The exceptions in section five of the Limitation Act of 1713 are in favour of disabilities of the plaintiff, existing at the time the cause of action accrues. One of the disabilities provided for is, that of the plaintiff being "beyond sea." The Act of 30th July 1842, § 27, P. L. 456, amends the Act of 1713, by making the fact that the defendant is "beyond sea," an exception to the Limitation Act. Of course, then, this phrase has the same meaning in both acts. With us it has always been understood to mean outside of the United States; 1 Yeates 329; 9 S. & R. 266, 288; and the Act of 1842 does not pretend to alter the law in this regard. So far as relates to this set-off, the plaintiff is to be regarded as defendant; but his residence outside of the state, and not out of the United States, does not prevent the running of the statute. The demurrer was, therefore, rightly decided.

Judgment affirmed, and record remitted.