Faw v. Roberdeau's Executor - 7 U.S. 174 (1805)
U.S. Supreme Court
Faw v. Roberdeau's Executor, 7 U.S. 3 Cranch 174 174 (1805)
Faw v. Roberdeau's Executor
U.S. (3 Cranch) 174
If an act of limitations have a clause, "saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of the commonwealth, three years after their several disabilities removed," a creditor, resident of another state, removes his disability by coming into the commonwealth, provided the debtor be at that time within the commonwealth.
On his returning to the commonwealth, he must bring his action within three years. "Beyond sea" and "out of the commonwealth" are analogous expressions in the law of Virginia.
This was an action in the Circuit Court of the District of Columbia 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, 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 which 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.