Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 58
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115-116 SUPREME COURT.
Snoddy v. Cage.
days from the passage of tie act, &c., without any exception operating against
defendants inl any case whatever, except that at tile election of the creditor the
orioilnal cause of action might be suled subject to lpescriptionl. (Stat. June 28,
1845.) Now, it will hardly be contended t lat although thle judllgent was prescribed
in sixty days, whether the defendant were in or out of the Republic,
yet against tlie original cause of action tlhe statute would not commence ru1nning
until the coming of the defendant into the Republic. Tlhe whole spirit
of legislation in regard to foreign immigrants forbids the supposition tliat the
Legislatulre would, with deliberate delsig.i, expose them to stale and harassing
claims, following them from the countries of their former domicile for any
period longer than would protect resident citizen.
We have beell referred to a judicial construction of the word "absence" to
be found in Buchannan v. Rucker, (9 Etas, 192, 194; Story Con. Laws, sec.
547.) A judgment had been obtained in tile island of 'obago agaillst a party
stated to be "formerly of the city of Dutlkirk, now of tile city of London,
merchantt" Ile was cited by a summons which had been served by posting
up a "copy of the declaration at the court-house door," and failing to appear,
judgment liad been elltered against him as in default. Thel judgment was
attempted to be mainainned on the ground that it was authorized by the local
laws it cases of persons absent from the island. Locrd Ellenborough, ill delivering
the judgment of the court, said: "'By persons absent from the island
must necessarily be understood persons who have been present and within the
jurisdictionl, so as to be subject to the process of the court; but it can never be
applied to a person wllo, for aught that appears. never was presellt witilhi or
subject to the jurisdiction. 'Absent from the island' must be taken only to
apply to persons who had been present there and were subject to the jurisdiction
of tlhe court out of wlich the process issued." Had such accuracy of
definition been applied to [116] tlhe terms of tile statutes of limitations, the
the word '' absence " could never have been applied to persons who llad never
been withill the limits of tle country, and certainly the word "return" could
never have been enlarged so as to comprleell(d as well those who were coming
into a territory for the first titne as those whlo had departed thence and were
returing again to the places of their residence.
Judgment affirmed.
WIHEELER, J., dissenting. I fully coincide in opinion with tile cour-t upon
the first question presented in argument. I regard tile original petition and
the amendments as constitutintig one pleading or petition. For the purpose of
considering the demurrer, every averment well pleaded must be taken to be
true ; but at the same time every allegation is to be takell most strongly against
the party making it. And I take it to be quite too clear for argument that the
plaintiff must be held to his express admission that the defendant, previous to
the time mentioned, had always resided out of tle limits of this State.
But upon the second point, the effect of this non-residence upon the plailtiff's
right to sue under the saving provision of the twenty-second section of
the act of limitations, I find myself constrained to differ in opinion with the
majority of tle court. I regard the law upon this question as settled upon too
firm a basis of uniform and enlightened adjudicatiolns to be now questicloned.
Thlls will, I think, be sufficiently apparent by a brief reference to a few of the
adjudged cases.
In the case of Ruggles v. Keeler (3 Johns. R., 264) tle question was raised
upon tle construction of the proviso in thle statute of Newv York, which was
adopted from the statute of Annle, and of whicll ours is a substantive enactmnenit.
anld underwent time scrutiny of that pre-cminenltly learned a( d tli nlightened(
court of which Kent was thlel Chlief Justice. Th'e Englisll aulltlorities were
reviewed by tle Chief JJustice will lis d usual great ability :ntid learninig, and a
conclusi(m was arrived [fllTJ at tle opposite of that at which this co3rt has
58
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/66/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .