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FAW v. ROBERDEAU'S EXECUTOR.

February 1, 1805

FAW
v.
ROBERDEAU'S EXECUTOR.



THIS was an action in the circuit court of the district of Columbina, for the county of Alexandria; and the question arose upon the construction of the act of assembly of Virginia, for 'reducing into one, the several acts concerning wills,' &c. Revised Code, p. 169, c. 92, § 56, which is in these words, viz. 'If any suit shall be brought against any executor, or administrator, for the recovery of a debt due upon an open account, it shall be the duty of the court, before whom such suit shall be brought, to cause to be expunged from such account, every item thereof, which shall appear to have been due five years before the death of the testator, or intestate. Saving to all persons non compos mentis, femes covert, infants imprisoned, or out of this commonwealth, who may be plaintiffs in such suits three years after their several disabilities removed.' The declaration was for plank, scantling, and foundation-stone, lent by the plaintiff to the defendant. For the like materials, sold and delivered, and for money had and received. The defendant pleaded the general issue, and a verdict was taken for the plaintiff, subject to the opinion of the court, upon the following facts: 'That the debt found by the verdict was due by the defendant's testator, to the plaintiff, in the year 1786. That the testator died in 1794. The plaintiff was a resident of, and in the state of Maryland, and out of the commonwealth of Virginia, when the articles were delivered for which the suit was brought, and when the debt was contracted; and continued so in Maryland, and out of the said commonwealth, until the month of June, 1795, when he removed to Alexandria to live, and hath lived there ever since. That in the year 1786, after the cause of action accrued, the plaintiff passed through the town of Alexandria, and was for a short time therein, but not as a resident thereof.' Upon this statement of facts, the judgment of the court below was for the defendant; and the plaintiff brought the present writ of error.

The opinion of the court was delivered by: Washington, J. Does it not appear that Faw was in Virgima after the cause of action accrued?

E. J. Lee, for plaintiff in error. The plaintiff was not a citizen of Virginia, when the debt was contracted. It does not appear that he did not commence his action within the limited time, after his becoming a citizen.

E. J. Lee. Only as a traveller. It does not appear that the testator lived in Virginia at that time. The plaintiff had three years to bring his action, after removal into Virginia. The writ is no part of the record, unless made so by a bill of exceptions, and it is not stated when the action was brought.

Swann, contract. The act of limitation begins to run from the time the plaintiff passed through Alexandria, after the cause of action had accrued. His disability (according to the expression of the act of assembly) was then removed, and he ought to have brought his action within three years from that time.

The plaintiff came to reside in Alexandria, in 1795. The suit was tried in 1802; hence the presumption is, that it was commenced at that time, and the plaintiff can only show the contrary by producing his writ. The state of the case negatives the idea of a loan. The claim, therefore, was upon the open account, and the court had a right to expunge all the articles charged five years before the death of the testator.

MARSHALL, Ch. J. That act has nothing to do with the lapse of time, after the death of the testator. The five years, are before his death. The three years, are also three years during the life of the testator, and the plaintiff must, therefore, have been in the state three years, during the life of Roberdeau, to make the limitation attach to his claim.

The court will hear you that point, if you think this opinion not correct.

Swann said, that no objection occurred to him at present.

MARSHALL, Ch. J. The court is satisfied with that opinion, unless you can gainsay it.

WASHINGTON, J. There is another point. Did not the plaintiff's coming into the state in 1786, after the cause of action accrued, cause the limitation to attach?

Swann. The words of the act are, 'saving to persons out of this commonwealth,' not persons residing out of this commonwealth. Being 'out of the commonwealth,' is the disability; coming into the commonwealth, therefore, is a removal of that disability. If the saving had been to persons residing out, &c. then, possibly, a mere coming in, without residing, would not have been a removal of the disability. 3 Wilson, 145, Strithorst v. Graeme. [177]

E. J. Lee. Under the British Stat. of 1 James, c. 16, § 3, the plaintiff must have been a resident in England; and he then has six years after his return. Here the plaintiff was not a resident of Virginia at any time during the life of the testator. 4 T. R. 516, Perry v. Jackson.

MARSHALL, Ch. J. Beyond sea, and out of the state, are analogous expressions, and are to have the same construction.

The whole case turns upon the question, whether the plaintiff's being in the state, in 1786, after the cause of action had accrued, takes ...


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