§ 1419. Under this statute, it has been held that the party who avers a disability must prove it clearly;l but when a party is once shown to be within the exception, he will be presumed to remain within it until the case is taken out of the statute unless the contrary be shown.2 The person for whose use the suit is brought is entitled, it is held, to the benefit of the disability as well as if he were the plaintiff of record.3 But the grantee or releasee of a person under disability cannot come within the exception, as this gives a mere personal protection.4 A person laboring under any of the disabilities, of course, may bring his action during the disability, as a minor during his infancy.6
§ 1420. As to the persons mentioned in the seventh section, it has been held that a person born deaf and dumb is not non compos mentis, unless such be proved to be the fact on an inquiry for that purpose,6 and that a person held in slavery is one "imprisoned" within the meaning of the act.7
§ 1421. In respect to these exceptional disabilities the rule is that if the statute once attaches, it is not arrested and held in abeyance by any of them. If, therefore, the person is sane, or is in the country, or out of prison, when the cause of action arises, subsequent insanity or departure from the country or imprisonment will not suspend the operation of the statute.8 So, also, if any of these disabilities exist when the cause of action arises and be temporarily suspended, the statute attaches at the moment the disability is suspended, and continues to run, although the disability subsequently occur.1 Thus, if the debtor be out of the country when the cause of action arises, and subsequently return for a time, the statute attaches on his return, and his departure afterwards does not suspend its operation.2 But in such case the coming from abroad must not be clandestine, and with the intent to defraud the creditor by setting the statute in operation and then departing. It must be so public, and under such circumstances as to give the creditor an opportunity by the use of ordinary diligence and due means of arresting the debtor.3 So, also, it would seem necessary that the fact of the debtor's return should be known to the creditor, if the return was merely temporary, though if the return were for a permanent residence, and publicly known, a constructive knowledge of such fact by the creditor would be created.4 Where
1 Hall v. Timmons, 2 Rich. Eq. 120.
2 Davis v. Sullivan, 2 Eng. 449. 3 Ibid. 4 Williams v. Council, 4 Jones, 206.
5 Chandler v. Vilett, 2 Saund. 117/, note 1.
6 Brower v. Fisher, 4 Johns. Ch. 441. In Oliver v. Berry, 53 Me. 206 (1865), it was held that persons born deaf and dumb should be considered primÔ facie non compos, and the statute would not run against them, unless they were proved to have sufficient intelligence to comprehend their legal rights.
7 Matilda v. Crenshaw, 4 Yerger, 299.
8 Smith v. Hill, 1 Wils. 134; Gray v. Mendez, 1 Strange, 556; Coventry v. Atherton, 9 Ohio, 34; Ruff v. Bull, 7 H. & J. 14; Pendergrast v. Foley, 8 Ga. 1; Young v. Mackall, 4 Md. 362.
1 Ibid.; Perry v. Jackson, 4 T. R. 516; Marsteller v. M'Clean, 7 Cranch, 156; Riggs v. Dooley, 7 B. Monroe, 236; Henry v. Means, 2 Hill (S. C), 328.
2 Hysinger v. Baltzell, 3 Gill & Johns. 158; Fowler v. Hunt, 10 Johns. 464; Byrne v. Crowninshield, 1 Pick. 263; Randall v. Wilkius, 4 Denio, 577; State Bank v. Seawell, 18 Ala. 616; White v. Bailey, 3 Mass. 271; Howell v. Burnett, 11 Ga. 303; Little v. Blunt, 16 Pick. 359. See Crocker v. Arey, 3 R. I. 178 (1855).
3 Fowler v. Hunt, 10 Johns. 464. See, also, White v. Bailey, 3 Mass. 271; Hysinger v. Baltzell, 3 Gill & Johns. 158.
4 Little v. Blunt, 16 Pick. 359. In Mazozon v. Foot, 1 Aikens, 282, Skinner, C. J., said: "It cannot be supposed, nor does the defendant insist, that every coming or return into the State would set the statute in operation. He admits it must be such as that by due diligence the creditor might cause an arrest. If the debtor should remove or return into the State publicly, and with a view to dwell and permanently reside within its jurisdiction, although in an extreme part from the place of his former residence, or that of the creditor, this would undoubtedly bring the case by a correct construction of the statute, within its operation, though the creditor should have no knowledge of his return. So, too, if the debtor, having no intention to reside here, comes or returns into the State, and this is known to the creditor, and he has opportunity to arrest the body, the case is brought within the statute. In the latter case it is necessary the creditor should be apprised of his debtor's being within the jurisdiction of this State." See, also, Didier v. Davison, 2 Sandf. Ch. 61; Hill v. Bellows, there are joint creditors resident abroad, and one of them returns, the statute begins to run from the time of his return.1 But where there are joint debtors resident abroad, on the return of one of them the statute does not begin to run;2 and the reason of this rule is stated to be that one plaintiff can act for the other and use their names in the action, and therefore the protection of the statute is not needed. But with respect to defendants the reason does not apply, since the plaintiff cannot bring the absent defendants into court by any act of his, and if he be compelled to sue one of several co-defendants on his return without joining the others who are absent, he may possibly recover against insolvent persons, and lose his remedy against the solvent ones who are absent.3
§ 1422. In respect to the phrase "returned from beyond the seas," it is not restricted to citizens who have left the country, but also extends to foreigners whose residence is out of the country, even although they have an agent residing therein;4 for under the seventh section of Stat. James I., and in many American States, a creditor who has never been in the country has six years from the time of his coming-there.1 In the different statutes of the United States, this phrase is altered to "beyond sea," "out of the State," "out of the country," "over the sea." And these expressions are generally construed to mean out of the jurisdiction of the State where the cause of action arises,2 but in some States they are construed to mean out of the jurisdiction of the United States.3