248 LINGAN v. HENDERSON.

appear and answer. Where a husband and wife, who neither of
them reside within the State, are proposed to be made defendants,
it is necessary that she should be warned by the order as well as
her husband, otherwise her interests cannot be bound, (a) In all
cases the granting of such an order of publication is almost as
much a matter of course as the issuing of a subpoena; because it
is conceived that the plaintiff proceeds upon it at his peril, for if
the case be such, or the defendant be not in fact a non-resident, so
as to authorize such an order, any decree which the plaintiff may
thus obtain must be considered as utterly void in point of fact.(b)
These plaintiffs having discovered their mistake, do well therefore
to have their bill amended in this respect. Let the amendment be
made as prayed.

After which, on the 17th of November, 1826, the defendant
Richard Henderson alone filed the following plea:

u This defendant by protestation to all the discoveries and relief,
in and by the said bill sought from or prayed against this defend-
ant and others, doth plead in bar, and for plea saith, that by an act
of assembly made and passed at April session in the year one
thousand seven hundred and fifteen, entitled, " An act for limita-
tion of certain actions, for avoiding suits at law," it was amongst
other things enacted, that all actions of trespass quare clausum
fregit; all actions of trespass, detinue, sur trover, or replevin for
taking away goods or chattels; all actions of account, contract,
debt, book, or upon the case, other than such accounts as concern
the trade or merchandize between merchant and merchant, their
factors and servants which are not residents within this province;
all actions of debt for lending, or contracts without specialty; all
actions of debt for arrearages of rent; all actions of assault,
menance, battery, wounding and imprisonment, or any of them,
shall be sued or brought by any person or persons within this pro-
vince, at any time after the end of this present session of assem-
bly, shall be commenced or sued within the time and limitation
hereafter expressed and not after; that is to say, the said actions
of account, and the said actions upon the case, upon simple con-
tract, book debt, or account, and the said actions for debt, detinue,
and replevin for goods and chattels, and the said actions for tres-

(«) Martin v. Russell. MS,, 22d December, 1797.—(b) Carew v. Johnston, 2 Scho.
& Left. 230.