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or beyond seas, the term of limitation does not commence until the impediment is removed. No person absenting himself out of the state or removing from county to county, after any debt has been contracted, whereby the creditors may be at an uncertainty in finding him out, or his effects, can claim any benefit of this act.

But the act cannot be construed to the prejudice of a person who removes from one county to another, or from the state, for the term limited in the act, provided he leaves effects sufficient and known for the payment of his just debts in the hands of some person who will assume the payment thereof.

By the act of November 1765, ch. 12. persons liable to any action, who may be absent at the time when the cause thereof accrues, have no benefit of limitations, provided, that after their presence such action be commenced within the time limited.

The act of 1715 further provides that no bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty, whatsoever except such as are taken in the name or for the use of the king, shall be good and pleadable or admitted in evidence against any person of this state, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years standing; saving to persons under the above mentioned disabilities, the full benefit of bringing actions within five years after such disability has been removed.

No sheriff or subsheriff can take any writing obligatory without indorsing the consideration upon which it was passed; but to prevent them from receiving any damage from the act of limitations, the time during which they remain in office is not reckoned.

Actions on sheriffs' bonds must be brought within five years from their date, saving to infants &c. five years, and to the state the right of suing at any time. Those upon administration and testamentary bonds within twelve years, saving to infants &c. six years. No assignment, assurance, conveyance, deed or any other writing whatsoever executed by a person trading to this

state and residing out of it at the time of the execution, can be given in evidence after the debt or thing in action is above three years' standing, saving to infants, &c. three years.*

Where a cause has been referred to arbitration, by virtue of the act of October 1778, ch. 21., and either of the parties or arbitrators dies before the award is made, or either of the latter have refused to serve, or if the award is set aside, then the time from the impetration of the original writ to the death of the party, refusal to serve, or setting aside of the award, is not reckoned as part of the time limited.

No prosecution or suit can be commenced for any penalty or forfeiture, imposed by the act for the regulation of officers' fees, after one year from the time of the offence.

Where no suit is brought to call in question the adjudication of the commissioners for marking and bounding lands within five years after the return has been recorded, the making and bounding and the record of it, is conclusive evidence of the original location, both as to the direction and termination of the lines; saving to infants &c. five years &c.

Where a claim has been exhibited against the estate of a deceased person, and rejected by the administrator or executor, the creditor must commence his suit within nine months from the time of such rejection or be for ever barred.

* Vid. ante p. 330.

Circuit Court of the United States.

SOUTH CAROLINA DISTRICT, 28th MAY, 1808.

Ex parte Adam Gilchrist and Others v. The Collector of the Port of Charleston.

Before JOHNSON and BEE, Judges.

MANDAMUS. INSTRUCTIONS FROM THE SECRETARY OF THE TREASURY. COLLECTORS. The circuit court has power to issue a mandamus to a collector, commanding him to grant a clearance. All instructions from the executive which are not supported by law are illegal and no inferior officer is bound to obey them.

EMBARGO.

AMOTION was made by Mr. Ward for rule on the

collector to show cause why a mandamus should not be issued against him, to compel the granting of clearances for the ship Resource, Moreton; ship Two Pollies, Wilder; ship Navigator, Bowden; ship Rising States, Anderson; and ship Louisa Cecilia, Fowler, founded on the following affidavit:

"Adam Gilchrist and J. S. Barker, of Charleston, merchants, being severally sworn according to law, depose, that the American register ship Resource, arrived from a foreign voyage in the port of Charleston about six months since, owned one half by the deponent, J. S. Barker, residing in Charleston, and the other half by American citizens residing in Baltimore; that the deponent representing the owners aforesaid, apprehensive that the bottom of the ship might, by her being detained here during the embargo, be totally destroyed by worms, did for that reason determine on sending her to Baltimore and regularly advertised for freight to said port of Baltimore; that having obtained the promise and actually engaged the freight

of about six hundred bales of cotton, it became requisite to ship either ballast or heavy freight, so as to enable the said ship to be navigated with safety; the ballast not being obtainable, these deponents, about three weeks since, agreed to carry to Baltimore about two hundred barrels of rice, freight free; and that the same was shipped by permit from the custom house and under the inspection of a revenue officer about two weeks since; that on application for a clearance of the said ship and her cargo to Simeon Theus, collector of the port of Charleston, duly commissioned and authorized to exercise and perform the duties of said public officer of collector of the port aforesaid, he hath refused to grant a clearance to said vessel and cargo, alleging that although he hath no suspicion that the clearance demanded is to cover an ostensible voyage to Baltimore, or to infringe or evade the existing laws relative to the embargo, and although he admits that the said ship was laden previously to his receipt of the act of congress, respecting the embargo, under date of the 25th April, ult. yet that he is bound to refuse such clearance, under the directions of the executive of the United States, which he conceives he is bound to obey; that these deponents have just right under the law to obtain from said Simeon Theus, collector as aforesaid, the clearance so withheld and refused to be granted.

ADAM GILCHRIST.
J. SANFORD BARKER.

Sworn before me this 24th of May 1808.

JOHN WARD, Q. U.

Upon the return of the rule the defendant showed the following cause:

United States, South Carolina District. Federal Circuit Court. Ex parte v. Simeon Theus, Esq. Collector of the Port of Charleston.

RULE to show cause why a mandamus should not issue, requir ing him to grant clearances of certain vessels.

Simeon Theus, collector of the port aforesaid, on whom a copy of the above rule has been served for cause, showeth:

"That in and by a certain act of congress of the said United States, passed the 25th day of April 1808, it is, in the 11th sect. thereof, amongst other things, enacted: that the collectors of the customs be, and they are hereby respectively authorized, to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any provisions of the acts laying an embargo, until the decision of the presi-, dent of the United States be had thereupon.' Also, that in and by a certain circular letter from the treasury department of the United States, dated the 6th of May 1808, and addressed to the said Simeon Theus, as collector aforesaid, he is instructed as follows: [Here follows the circular instructions of Mr. Gallatin.] That the said Simeon Theus, collector as aforesaid doth not detain the vessels as aforesaid, under the act aforesaid, because in his opinion there is no intention in the parties aforesaid to violate or evade any of the provisions of the acts laying an embargo, but that he detains them under the instructions he has received in the letter aforesaid, and which as a public officer he thinks he is bound to obey. That being unwilling, on the one hand, to injure individuals, and, on the other, equally so, to commit a breach of his duty, he submits the question to the court, upon the cause above shown.

SIMEON THEUS, Collector." The case was then submitted without argument.

JOHNSON J. "The affidavit, upon which this motion is founded, states, that the ship Resource is ballasted with 140 barrels of rice, under a load of cotton, and is destined for the port of Baltimore. The collector, in his return to the rule, acknowledges, that he believes the port of Baltimore to be her real destination; and that, if he had no other rule of conduct. but the 11th section of the act supplementary to the embargo act, he would not detain her; but urges in excuse, for refusing her a clearance, a letter from the secretary of the treasury. It is not denied that if the petitioners be legally entitled to a clearance, this court may interpose its authority, by the writ of

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