gone far enough on this subject, and the court are not disposed to extend the principle. They are unanimously of opinion that the books were improperly admitted, and that therefore a new trial must be granted. Justices Richardson, Johnson, Huger and Nott, concurred. Kennedy, for the motion. JOHN E. VAUSSE vs. E. RUSSEL. Things fixed to the freehold cannot be distrained, much less a freehold and of course a writ of replevin will not lie for a freehold illegally distrained. Motion before Mr. Justice Bay. IN this case, the defendant had issued a distress warrant against the plaintiff, who occupied a leased lot of land of hers on which he had built a house, for rent in arrear.It was in the usual form, requiring the bailiff to take the goods and chattels of the tenant. The bailiff found no goods on the premises, nor any person in possession, and returned the warrant as levied on the house. The plaintiff obtained a writ of replevin, by virtue of which he dispossessed a tenant who had been put in possession by Mrs. Russel, and on the return of the writ, a motion was made before Mr. Justice Bay to quash the writ, on the ground that replevin would not lie in such case. On hearing the argument, the presiding judge quashed the writ, and a motion was now made to reverse the decision on the grounds; 1st. Because, being a writ founded on an actual levy. for rent in arrear, it was a legal and appropriate action. 2dly. Because, if the proceeding was erroneous, it might, by pleading, be brought under the decision of the court in term time in the ordinary process of law. Mr. Justice Colcock delivered the opinion of the court It has been a matter of great controversy and of some doubt in what cases a writ of replevin will lie; but this is the first instance within my knowledge of an attempt to replevy a house. The first ground assumes the position that because an illegal distress was made, that therefore a replevin would lie. Suppose the bailiff had found the tenant in the house, but no goods or chattels, and had invaded his personal liberty by levying the distress warrant on him, would the remedy by replevin be appropriate? And I should suppose it would as well apply, (and perhaps with more propriety indeed) in that than in the present case.— If any injury could result from such a nugatory act, the remedy would be by an action of trespass. It is expressly laid down by Mr. Blackstone, in speaking of the things which may be distrained, in the 2d volume of his Commentaries, page 9, that things fixed to the freehold cannot be distrained; and in the case of Cresson & others, vs. Stout, (17 Johnson's Reports, 106,) it is decided that replevin does not lie for things fixed to the freehold, until they be severed. It was said in the argument that it was a common practice to levy on houses built on leased premises in this city for rent in arrear. This may perhaps be the case by the convention of the parties, but nothing of that sort was proved. The object of the writ of replevin is to restore to the owner the possession of his goods, but here the effect of the replevin was to disseize the defendant of the freehold. On the second ground, it is only necessary to say that the point has been expressly decided by the cases of Bird & O'Hanlin, (1 Con. Rep. 401,) and Cole & Gist, (2 Nott & McCord's Rep. 456,) and with great propriety. When the process of the court has been thus illegally used, why should the remedy be delayed? Why suffer a proceeding to be carried on, which it is obvious cannot be supported? As well might it be said, that where the service of a capias ad respondendum had been illegal, it should not be set aside on motion. The motion is refused. Justices Richardson, Johnson, Nott & Huger, con eurred. Gantt, Justice, dissented. Bennett & Hunt, for the motion. Toomer, contra, ADM'R. OF FORBES VS. ADM'R. OF FOOT. By the saving words in our statute of limitations, "beyond seas," is meant "out of the state." Tried before Mr. Justice Huger, in May Term, 1822. THIS was an action of assumpsit to recover balances due on several notes; the first in time dated the 16th of January, 1804, and the last the 11th of June, 1806. The defence set up, was the statute of limitations. The plain. tiff proved the hand writing of the defendants intestate to the notes, and gave in evidence an endorsement on each of them, made with the intestates consent, acknowledging the receipt of certain sums of money, in part payment of the notes. These were dated the 9th of August, 1814. The plaintiff, in order to take the case out of the statute, produced the following testimony: That Asa Foot, the intestate, formerly resided in Boston; that in 1805, he became very much embarrassed and absconded from that city; that he was brought back by a creditor and absconded a second time; that he again returned to Boston and kept himself concealed and expressed his intention to do so; that afterwards, he was absent ten or twelve years; that witness considered him a transient person. He was in the habit of trading to the West Indies. During the summer in 1810, witness met him in Barbadoes, and they visited in company, several of the West India Islands. In 1815 or 16, witness met Foot in Charleston. On the part of the defendant, it was proved by Mr. O'Hara, one of the plaintiff's witnesses, that he knew Foot three or four years during his residence in Charleston; that Foot arrived there in the spring of 1812 or 1813, about the con mencement of the war; that he was a horse dealer and livery stable-keeper, and owned the livery stables in the rear of St. Philip's church; that he was generally in Charleston during the spring and winter; and in the summer traded to the West Indies; that this mode of life continued from 1812 or 1813, until his death, which occurred in the spring of 1817, and that he was correct in his dealings. It was also proved by the defendant, that John Foot administered on the estate of Asa Foot, the letter of administration being dated April 27th, 1817; that this was revoked and administration de bonis non granted to C. W. Vankanst, the present defendant, on the 27th December, 1817. The present action was commenced February 24, 1820. Verdict was rendered for the plaintiff. A motion was now made for a new trial on the following grounds, viz: 1st. Because the testimony adduced to take the case out of the statute, by shewing that the intestate was a transient person and concealed himself from his creditors at Boston, referred to a period long antecedent to August 9th, 1814, the date of the several acknowledgments on the notes, from which time the statute began to run, and the testimony was, therefore, irrevelent. 2nd. Because it was proved that the intestate resided in Charleston from 1812 or 1813, to the spring of 1817, when he died, and was a freeholder here; that an action might have been commenced in Charleston during all that time, whereas it was not brought until February 24, 1820, nine months and fifteen days too late. 3rd. Because the verdict was in other respects contrary to law and evidence. Mr. Justice Colcock delivered the opinion of the court: As to the facts of this case, the first enquiry is, when did the statute begin to run? And it is not disputed by the parties that it commenced its operation on the 9th of August, 1814. It is also conceded that the plaintiff lives in Boston, and has always resided there from the origin of this transaction. (The only question then for the determi nation of the court is, whether the saving in the statute in favour of persons beyond seas, can apply to the plaintiff? I think we are bound as well by reason as authority to say, that the words beyond seas mean out of the state or out of its jurisdiction. Many places literally beyond seas are nearer to us than the distant parts of the continent, and if four years are given to those who reside in the same place with a defendant to bring suit, it would seem but reasonable to extend the time to those who are at the distance of one thousand miles; and whether the intervening space was occupied by land or water is certainly immaterial. The idea of the law was, that those who had not ready access to the tribunals of justice should be allowed a longer time to commence their actions. But the point seems to have been well settled both here and in England. In the case of Faw vs. Roberdeau's executors, chief justice. Marshall says, "beyond seas and out of the state are analogous expressions, and are to have the same construction;" (3 Cranch, 177;) and in the case of Murry vs. Baker, (3 Wheaton's Reports, 545,) Mr. Justice Johnson says "beyond seas' must be held to be equivalent to 'without the limits of the state ;"-so in 2 Johnson's Cases, 81. By the act of 1789, commonly called the administrators law, nine months are allowed to the administrator to collect debts and arrange the affairs of his intestate's estate, during which he cannot be sued ; and it was decided in the case of Moses vs. Jones, (2 Nott & McCord, 259,) that the creditor was entitled to four years exclusive of the nine |