BOND AND ANOTHER

v.

JAY

Marshall, Ch. J.

delivered the opinion of the Court as follows:

This suit was brought by the Plaintiff, a merchant of Pennsylvania, against the Defendant, a merchant of Maryland, upon an account which grew out of their trade with each other as merchants. The Defendant pleaded the statute of limitations, to which the Plaintiff replied that the Plaintiff, who resided in the state of Pennsylvania, and the Defendant were employed in mutual trade and merchandize, of and concerning which the said several sums of money in the said declaration mentioned grew due. The Defendant rejoins that the Plaintiff came within the state of Maryland in 1797, and that the original writ in this cause issued on the 5th of July, 1808, and not' before. The Plaintiff demurred, and upon argument the demurrer was overruled and the bar adjudged to be good.

A writ of error has been sued out to the judgment of the Circuit Court, and the questions in the cause are,

1. Is the replication good in itself?

2. Does the rejoiner avoid the replication and sustain the plea:

These questions depend on the act of limitations passed in . 1715 by the legislature of Maryland. The inhterial part of that act is in these words: 44 Be it en-44 acted, That all actions, &c. other, than such accounts s< as concerns the trade of merchandize between mer44 chant and merchant, their factors and servants which 44 are not residents within this province,” &c. 44 shall be 44 commenced or sued within three years ensuing the 44 cause of such action, and not after.”

By the Plaintiffs it is contended, that if either party reside without the province the case js within the exception : — by the Defendant, that to bring the case within the exception both parties must reside' without the province.

. It is so unusual for a legislature to employ itself m framing rules which are to operate only «n, contracts made without their jurisdiction, between persons residing without their jurisdiction, that Courts can never 1)9 justified in putting such a construction on their words if they admit of any other interpretation which is rational and not too much strained.

This, it is thought, may be done, in the case no\y to be decided. The words 44 which are not residents” refer, it is said, to both parties, Plaintiff and Defendant* They comprehend all the persons previously enumerated. Let this be conceded.

Then read the exception as if the word 4* both” or 44 all” were inserted, it will stand thus: 44 other than such accounts as concerns the trade or merchandize between merchant and merchant, their factors and servants which are not both or all residents within this province.’* The plain meaning of the sentence so read would be that accounts between merchant and merchant either of whom resided out of the' province would come Within the exception. It is admitted that without the Word 44 both” br 44 all,” the more obvious meaning of the.sentence is that for which the Defendant contends. Yet it will bear the same construction without, as with cither of those words, and the subject-matter of the law so clearly requires this interpretation that the Court thinks it may be made.

The rejoinder is founded on the third section of the act which contains the usual exceptions in favor of infants, &c. and allows .three years after the removal of the impediment to bring their suit.

It is. contended that since the act of limitations runs against a person beyond sea from the time of his coming into the country, so from analogy it ought, to run against a non-resident merchant from the time of his coming, though for a mere temporary purpose, within the country.

The Court cannot assent to the correctness of this reasoning. To render it applicable, the rejoinder ought tp have averred that the Plaintiff had become a resident of the state of Maryland more than three years before the institution of the suit. Not having done so, the words of the exception have never ceased to be applicable to che Plaintiff? and, consequently, the statute has never commenced to run.

It is the opinion of this Court that the Circuit Court1 erred in overruling the demurrer of the Plaintiff to the rejoinder of the Defendant.in this cause, and that the judgment be reversed and annulled, and the cause remanded with instructions to render judgment on the said .demurrer in favor of the Plaintiff, and that further proceedings may be had therein according'to law.

Judgment reversed.