Bond v. Jay
11 U.S. 350

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U.S. Supreme Court

Bond v. Jay, 11 U.S. 7 Cranch 350 350 (1813)

Bond v. Jay

11 U.S. (7 Cranch) 350

Syllabus

The exception in the Maryland statute of limitations, in favor of "such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants, which are not residents within this province" applies to dealings between a merchant creditor residing out of Maryland and a debtor residing in Maryland.

In order to take the case out of the exception, it is not sufficient to aver that the creditor returned to, came, and was within the State of Maryland after the cause of action accrued and more than three years before bringing the suit.

It is so unusual for a legislature to employ itself in framing rules which are to operate only on contracts without their jurisdiction that courts can never be justified in putting such a construction upon their words if they admit any other interpretation which is rational and not too much strained.

Error to the Circuit Court for the District of Maryland in an action of assumpsit brought by Bond & Brooks against Jay, surviving partner of Samuel Jay and Gabriel Christie, trading under the firm of Samuel Jay & Company, upon an account for merchandise sold and delivered. The defendant, Jay, pleaded the statute of limitations of Maryland, 1715, ch. 23, which limits actions of assumpsit to three years after the cause of action shall have accrued.

To this plea the plaintiffs replied

"That at the time when the several sums of money in the declaration mentioned grew due, viz., on 20 March, 1799 and long before, to-wit, on 27 November, 1797, and from thence until the said 20 March, and from the said last mentioned day until the suing forth the original writ in this suit, the plaintiffs were merchants, carrying on trade and merchandise under the name and firm of Bond & Brooks and residing and carrying on trade without the limits of the district aforesaid and of the State of Maryland, viz., at Philadelphia, in the State of Pennsylvania, and that at the several times aforesaid the said Jay and Christie were merchants, trading under the firm of Samuel Jay & Company, and residing and carrying on trade at and within the district aforesaid, and that on the said several days, and on sundry days from the first of those days to the second of those days, the plaintiffs were engaged in mutual trade and merchandise with the said Jay and Christie, by reason of which trade and of and concerning the same, the said several sums of money in the declaration mentioned grew due to the plaintiffs, and this they are ready to verify, wherefore,"

&c.

To this replication the defendant rejoined

"That the plaintiffs ought not to have and maintain their said action by reason of anything alleged in their replication aforesaid because, protesting that the said several sums of money in the declaration aforesaid mentioned

Page 11 U. S. 351

do not concern the trade and merchandise between merchant and merchant, and also protesting that the plaintiffs have not continued to reside without the State of Maryland and district aforesaid since the contracting and growing due of the said several sums of money, and until the suing out the original writ in this cause, yet, for answer to the said replication, the said Samuel Jay says that true it is that at the time of the contracting and growing due of the said several sums of money, he, the said Samuel and the said Christie, were merchants and residents within the State and District of Maryland aforesaid and continued to reside therein until the decease of the said Christie, and the said Samuel has continued to reside therein ever since, and that the several sums of money in the declaration mentioned had become due and were payable on 20 March, 1799, to-wit, at the district aforesaid, and that afterwards, to-wit, on 20 May, 1799, the plaintiffs returned to, came, and were within the state aforesaid, to-wit at the district aforesaid, and that afterwards, to-wit, on 18 October, 1799, the said Joshua B. Bond came to and was within the said state, viz., at the district aforesaid, and that the original writ in this cause was sued forth on 19 May, 1809, and not before, and so the said Samuel Jay saith that three years and more had elapsed and expired, after the return of the plaintiffs and of the said Joshua B. Bond to, and after their being within the said state and district, and after the contracting and growing due of the said several sums of money, and before the suing out of the said original writ in this cause, viz., at the district aforesaid, and this the said Samuel is ready to verify, wherefore. . . ."

To this rejoinder there was a general demurrer and joinder. The court below overruled the demurrer and adjudged the rejoinder to be good, whereupon judgment was rendered for the defendant and the plaintiffs sued out their writ of error.

The Act of Assembly of Maryland, 1715, ch. 23, enacts

"That all actions of trespass quare clausum fregit, all actions of trespass, detinue, sur-trover, or replevin for taking away goods or chattels, all actions of account, contract, debt, book, or upon the case, other

Page 11 U. S. 352

than such accounts as concerns the trade or merchandise between merchant and merchant, their factors and servants, WHICH ARE NOT RESIDENTS WITHIN THIS PROVINCE, all actions of debt for lending . . . shall be commenced or sued within the time and limitation hereafter expressed, and not after. . . ."

The third section contains a clause saving to persons within the age of 21 years, feme covert, non compos mentis, imprisoned, or beyond seas, the right of suing within the respective times limited after the removal of their several disabilities.

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