VERPLANK . HALL.

self upon an adverse right, depending entirely upon the location of the description, the complainant was not called upon to put in such strict proofs of possession as might have been requisite in other cases.

The circuit court in chancery having reached a different conclusion, its decree must be reversed, with costs, and a decree entered in this court in accordance with the prayer of the bill.

The other Justices concurred.

The Township of Dayton v. Henry Rounds; and The Township of Dayton v. Robert E. Warren.

Bounty bonds: Statute construed: Remedy: Mandamus. Under the statute (Comp. L. 1871, §§ 3927-86) authorizing the payment of bounties to volunteers, etc., the bonds provided for are intended to be put upon the footing of estab lished liabilities against the township, to be presented, like other claims, for orders on the treasury, to the township board; and an action against the township is not the proper remedy to enforce payment; but the proper redress for any refusal of the town officers to do their duty in this regard is by mandamus.

Submitted on briefs April 11.

Decided April 15.

Error to Tuscola Circuit.

B. W. Huston, Jr., for plaintiff in error.

M. D. Seeley and Minock & Baker, for defendant in error.

CAMPBELL, J.

Both of these cases are suits to recover upon bounty bonds, issued by the township of Dayton in December, 1863, payable February 10, 1865, and within the terms of the enabling act of February 5, 1864.

DAYTON . ROUNDS.

By the first section of that act it was declared that these bonds "shall be a valid and lawful claim against the township, county or city having voted, raised, hired, authorized or issued the same, and shall be paid in the same manner as the ordinary township, county or city expenses are paid."-Comp. L. 1871, § 927.

By the fourth section it is provided that "the claims and liabilities herein declared to be valid" "shall be assessed, levied, collected and paid, in the same manner as ordinary claims and liabilities are assessed, levied and paid."-§ 930.

Section 2 requires the allowance and payment of such claims, except as therein otherwise provided, to be made in the same manner as ordinary claims are allowed and paid. Section 5 requires the township clerks to certify each year to the supervisors the amount of such indebtedness, to be incorporated in the assessment roll.

It was evidently the design of the legislature to put these bonds on the footing of established liabilities against the township, to be presented, like other claims, for orders on the treasury, to the township board. All moneys drawn from the treasury for their payment were to be upon the customary orders. If the bonds were actually issued by the township, the law declared them valid, and permitted no inquiry into that question. But it did not dispense with the necessity of seeking their payment in the ordinary way.

case.

A remedy by action is not the proper remedy in such a And any refusal by the town officers to do their duty should be redressed by mandamus. A township ought not to be subjected to the expense of a suit upon such a claim when the law requires it to be presented to a board for allowance. Such has been the settled practice in this state for many years.-People ex rel. Anderson v. Township Board of La Grange, 2 Mich., 187; Marathon v. Oregon, 8 8 Mich., 372; People v. Auditors of Wayne County, 5 Mich, 223; People v. Townships of Porter and Calvin, 18 Mich., 101.

DAYTON U. ROUNDS.

If these claims had been presented to the town board, and title shown in the claimants of the bonds, it is presumable they would have been paid; and until the board neglected or refused to do justice, there could have been no occasion for resort to the courts. The remedy by mandamus is simpler and speedier than any other to obtain all the benefits to which the holder of such bonds would be entitled, and is, in our opinion, the one which should have been adopted.

The

The judgment should be reversed, with costs. reversal being upon the pleadings, there will be no new trial.

The other Justices concurred.

Edward Erskine and another v. John Messicar.

Statute of limitations construed. Under our statute of limitations of personal actions (Comp. L. 1857, ch. 165) a cause of action which accrued in Canada upon a promissory note in favor of a Canadian resident who has never been within the United States, is not barred by the defendant's residing more than ten years in this state; the disability of absence from the United States under the statute (§ 5366) applies to such a case, and prevents the limitation from running.

Error to St. Clair Circuit.

Heard April 13. Decided April 15.

A. E. Chadwick, for plaintiffs in error.

O'Brien J. Atkinson, for defendant in error.

CAMPBELL, J.

The only question in this case is whether a cause of action which accrued in Canada on a promissory note, in

ERSKINE v. MESSICAR.

May, 1854, in favor of a Canadian resident who has never been within the United States, against persons who then lived in Canada, but had been in Michigan more than ten years before suit brought, is barred.

It is claimed that by section 7 of the statute of limitations all personal actions must be brought within ten years, if the plaintiff has continued abroad.

That section is as follows: "All personal actions on any contract, not limited by the foregoing sections, or by any law of this state, shall be brought within ten years after the accruing of the cause of action, and not afterwards."

The previous sections had limited actions of assumpsit to six years; and section six contains this specific provision concerning foreigners: "If any person entitled to bring any of the actions mentioned in this chapter, shall, at the time when the cause of action accrues, be absent from the United States, such person may bring the action within the times in this chapter respectively limited, after the disability shall be removed."

This is a plain and unequivocal provision, applying as directly to the ten years clause of section 7 as to any other, and declaring in the most express terms that the statute shall not run in case of such a disability. It applies to every action mentioned in the chapter. The subsequent amendments do not reach this case, and their effect need not be considered.

The only case which seems to have raised any doubt upon this subject is Von Hemert v. Porter, 11 Metc., 210. That decision contains the following language concerning a similar section in the Revised Statutes of Massachusetts: "And we think it was also designed to embrace those causes of action founded upon contracts originating abroad, between foreigners and our citizens, and which by their terms were to be performed in the country where contracted, when the foreigner never comes into the state, as being cases not contemplated and embraced or affected by the other provisions of the statute, nor limited by the provisions

ERSKINE v. MESSICAE.

of the sixth section; and that, as to such contracts, if attempted to be enforced in the courts of the commonwealth, they are to be commenced within twenty years after the cause of action accrued; unless, within that time, the foreigner shall bring himself within the provisions of section 6 by coming into the commonwealth."

As our statutes contained this section before this decision, it has no binding force beyond its reasoning. No reason is given for the conclusion, and if correct, it certainly would revolutionize some of the best established rules of law. The only ground which seems to be hinted at is, that section 6 of the statute was not intended to apply to foreign contracts. But the exemption of persons "beyond seas" has been consistently applied from the earliest times, to such contracts. The idea dimly shadowed out would seem to be, that the limitation bore on the right as well as on the remedy. But no such doctrine has ever been maintained. And it would require us to put into the very clear provisions of the sixth section, saving the rights of non-residents, a proviso that the cause of action must have accrued in this state, or in the United States. The language will not bear that restriction.

It is very easy to see that this protection may be unwise, but we cannot find any escape from the statute.

The judgment must be affirmed, with costs.

The other Justices concurred.