¶1Smart sued Wakefield before a justice of the peace upon a promissory note for forty-one dollars and ten cents, dated February 5th, 1835, and payable on demand. The justice rendered judgment for the defendant, and the plaintiff appealed to the Circuit Court. Upon a trial de novo in that court the defendant relied upon the statute of limitations as a defence; in avoidance of which the plaintiff proved that he was, at the time of the execution of the note until that time, a non-resident of the Territory and State of Arkansas.
¶2The holder of the note being a non-resident of the State and Territory, the Territorial Statute did not bar his action. In Field v. Dickinson, 3 Ark. R. 409, it was held that the expression beyond seas, as used in that Statute, applied to persons beyond the jurisdiction of the state, as well to foreigners who have never come within the jurisdiction, as to our own citizens who may be absent, and against whom the statute never commenced running. That the action was not barred by the limitation act contained in the Rev. St. ch. 91, nor by the acts of 1842 nor 1844, was decided in the cases of Couch v. McKee, 1 Eng. Rep. 484; Hawkins v. Campbell, ib. 513; and Watson v. Higgins, 2 Eng. R. 495.
¶3The appellant contends, however, that the appellee did not prove his non-residence by competent proof. The objection to the competency of the testimony, should have been taken upon the trial. It is too late to raise the objection in this court.
¶4Let the judgment of the Circuit Court be affirmed.