F. Sissons et a. versus John W. Bicknell, 6 N.H. 557

Richardson, C. J, delivered the opinion of the court. The statute of limitations provides, that actions on the case should be barred unless commenced within six years next after the cause of action. But the third

section declares, that if, at the time the cause of action accrued, or afterwards, the defendant resided without the limits of the state, and did not leave property or estate therein, that could by the common and ordinary process of law be attached, the plaintiff shall be at liberty to commence his action within six years after the cause of action, exclusive of the time during winch the defendant shall have resided without the limits of the state as aforesaid.

It is very obvious, irons the language of the third section, that the statute runs only while the defendant, who is out of the state, has property here, which can be attached . But it is contended, that, as the defendant was never an inhabitant of this state, the case is riot within the third

section of the statute. It is argued that the statute embraces only inhabitants of this state who have gone abroad and left no property, that could be attached. The statute speaks of their leaving property, which certainly gives some countenance to the supposition that the case of inhabitants leaving the state was in the immediate contemplation of those who made the act. But that circumstance is much too slight to sustain a construction so narrow, as that for which the defendant’s counsel contends.

Upon a similar exception in the statute of Massachusetts, it has been decided that the exception embraces those who were never resident in the commonwealth. 7 Mass. Rep. 515, Dwight v. Clark; 11 Pickering, 39—40. This decision is in strict accordance with other decisions in analogous cases. 17 Mass. Rep. 180, Wilson v. Appleton; 14 ditto, 203, Hall v. Little; 3 Wilson, 145; 2 W. Bl. 723; 3 Johns. 266—267; 10 ditto, 465. We are, therefore, of opinion that the case is within the meaning of the third

section in the statute. It is then clear that this action is not barred by the statute. The land mortgaged to the defendant may be laid out of the ease, because the interest of a mortgagee in land cannot be attached. 5 N. H. Rep. 430. And, admitting that oxen and horses, casually in the state, with the defendant, may be considered as property left, within the meaning of the statute, still it does not appear that the defendant has had property in the state, during the term of one year, since the cause of action accrued.

To maintain the issue on his part, it was necessary for the defendant to show, that he had property here that might have been attached during the term of six years after the cause of action accrued, and before the commencement of this suit. Judgment for the plaintiff.