to San Francisco, but the total length of his stays in this state aggregated less than two years. He left estate, consisting of real and personal property, in Hawaii and in California. His will was duly admitted to probate in Honolulu and ancillary administration was had in the superior court of the city and county of San Francisco. Such property as he left in this state is here in 639 process of administration. McKee, the plaintiff, continued to reside in New York. He presented the notes for payment to the executrix as a claim against the estate in California, which claim was allowed by her. The court refused its allowance, whereupon this action was commenced. It was known to plaintiff that Dodd was residing in Honolulu.

The court awarded judgment to plaintiff upon his claim and defendant appeals, presenting three contentions:

1. Appellant urges that the notes are barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, by which section an action upon a contract founded upon an instrument in writing executed out of the state must be commenced in this state within two years. Section 351 of the Code of Civil Procedure in this connection declares that, "If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not a part of the time limited for the commencement of the action.' Appellant rules upon the case of Palmer v. Shaw, 16 Cal. 93, as supporting her contention that when Dodd came to the state the cause of action against him here arose, that the statute of limitations then began to run, and that his subsequent departure from the state did not stay this running; but in Palmer v. Shaw, not only was the court's attention not directed to this proposition, but in fact the defendant had been in the state more than two full years before the action was brought, whereas the deceased in this case had been in the state, aggregating all of his visits, less than five hundred days. The rule is to the contrary of appellant's contention and has been expressly so decided in Dougall v. Schulenberg, 101 Cal. 154, 35 Pac. 635. That case is the exact parallel of this as to the leading question involved, and it is there declared that where a note sued upon was in express terms payable out of the state, and the payers were nonresidents of the state when the cause of action accrued, the statute only commenced to run in their favor when they came to this state, and if afterward they left

the state, the time during which they were so absent would not be a part of the time within which the suit must be commenced. It follows herefrom that plaintiff's cause of action was not 640 barred by subdivision 1 of section 339 and section 351 of the Code of Civil Procedure.

2. Appellant next contends that the cause of action was barred by section 361 of the Code of Civil Procedure. This section is as follows: "When a cause of action has arisen in another state, or in a foreign country; and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued." In support of appellant's position under this section it was established in evidence that under the laws of Hawaii an action for the recovery of any debt founded upon any contract, obligation or liability, where the cause of action has arisen in any foreign country, must be commenced within four years after the cause of action accrues. Appellant's reasoning and argument is this: That a cause of action "arose" against the deceased in Hawaii upon his arrival there after the maturity of the notes; that for failure to prosecute, the right of action became barred by the statute of limitations of Hawaii; that thus is presented a case under our section 361 where by the laws of a foreign country an action cannot be maintained upon a contract by reason of lapse of time, wherefore no action is maintainable against such person or his estate in this jurisdiction. It is at once apparent, then, that the crux of this matter is to be found in the true interpretation to be given to the phrase "when a cause of action has arisen. Appellant contends that the cause of action "arose" simultaneously in New York state at the time the promissory notes became due and payable, and also in Europe where at that moment deceased chanced to be; that subsequently the cause of action arose successively in every country through which he passed and arose finally in Hawaii upon his arrival there. If this be the true construction of the statute, then admittedly plaintiff's cause of action is barred. It may at once be conceded that the courts have experienced difficulties in construing statutes of limitations similar in their terms to our section 361. Appellant cites many cases under her contention that the weight of authority is with her. It would not be profitable to analyze these anthorities to show in individual instances where the ruling of

the 641 court was determined by differences between their statutes and our own, or where under other circumstances the reasoning does not appeal to us as cogent. Suffice it to say, that from a consideration of all the authorities and from the very reason of the matter itself, we are satisfied that appellant's position cannot be maintained. A cause of action, as Professor Pomeroy points out with his usual lucidity (Remedies and Remedial Rights, secs. 452 et seq.), arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty by the person on whom the duty rests. "Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term and as it is used in the codes of the several states." It was the right of plaintiff to look for payment of his debt at the time it became due and at the place of payment, New York state. It was the duty of the deceased to pay the debt, not only when it became due, but at the place of payment, New York state. His failure in this regard gave rise to the cause of action, and clearly, therefore, that cause of action arose in the state of New York. In a legal sense the cause of action cannot have two places of origin. It can arise in but one place, and that, in such a case as this, is where the note is payable and the payee resides. As between the states the same rights are reserved by the constitution to the citizens of one that are accorded to the citizens of another. But beyond this, the ability of a creditor to pursue his debtor in foreign jurisdictions rests wholly upon comity and upon the laws of such jurisdiction. This cause of action, therefore, did not arise against the deceased in Europe, where he chanced to be, and, indeed, in the particular country of his location at the time of his default, no remedy may have been open to plaintiff. Whatever subsequent remedies by way of rights of action may have accrued to plaintiff because of the deceased's presence in various states and countries, they were one and all subordinate to and dependent upon the vital and essential fact that the cause of action had arisen against him in the state of New York: Story v. Thompson, 36 Ill. App. 370; Chevrier v. Robert, 6 Mont. 319, 12 Pac. 702; Doughty v. Funk, 15 Okl. 643, 84 Pac. 484, 4 L. R. A., N. S., 1029; McCann v. Randall, 147 Mass. 81, 9 Am. St. Rep. 666, 17 N. E. 75. We conclude, 642 therefore, upon this point that section 361 has reference only to the primary and original jurisdiction in which the cause of action arises, and does not contemplate other jurisdictions in which a cause of action

may arise or accrue, depending upon the peripatetic inclinations of the defendant, and in the case at bar, unquestionably, the cause of action had its origin and primarily "arose" in the state of New York.

3. The last contention which appellant advances is that administration in this state being ancillary, no claim of a citizen of a foreign state can here be recognized at all, regardless of any question of the statute of limitations, but that such claim must be transferred to the court of primary jurisdiction. Undoubtedly, there is authority holding this view. Undoubtedly, also, this rule is ably controverted upon the ground that it is unsound in morals, as well as in law, and violates the constitutional guarantee of equal privileges and immunities to citizens. Reference herein may be made to the case of Shegogg v. Perkins, 34 Ark. 117, and to the conflicting views of the justices of that court upon the matter. In Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. Rep. 165, 43 L. ed. 432, it was declared that a state statute giving to residents of that state a priority over nonresidents in the distribution of the assets of a foreign corporation is violative of article 4 of the constitution of the United States giving equal privileges and immunities to the citizens of the several states, and as denying to every person within its jurisdiction the equal protection of the law. We find no statute of our state, which in terms denies to a creditor and resident of a sister state the right to present his claim here, whether the administration in our courts be primary or ancillary, and in view of the provision of the constitution of the United States above referred to, we should doubt the validity of such a statute if found upon our books. However, upon this matter it is necessary here to say no more than that since our statutes do not forbid, comity will dictate that such a claim should be entertained.

For these reasons the judgment appealed from is affirmed. Lorigan, J., and McFarland, J., concurred.

Hearing in bank denied.

The Words "Where the Cause of Action has Arisen in Another State," as used in the statute of limitations, mean when the cause of action has accrued in the foreign state, or when the plaintiff has the right to sue the defendant there; they do not refer to the origin of the transaction out of which the cause of action has arisen: Bruner v. Martin, 76 Kan. 862, 123 Am. St. Rep. 172, and see the cases cited in the cross-reference note thereto.

The Statute of Limitations of the Forum usually governs, in case of a conflict of laws, unless the statute is regarded as extinguishing

the debt and not merely barring the remedy: See the note to Menzell v. Hinton, 95 Am. St. Rep. 660; Arp v. Allis-Chalmers Co., 130 Wis. 454, 118 Am. St. Rep. 1036. By the laws of Ohio a cause of action aceruing in another state and barred by its laws is also barred in Ohio: Hunter v. Niagara Fire Ins. Co., 73 Ohio St. 110, 112 Am. St. Rep. 699. An action on a promissory note cannot be maintained in Kansas under section 22 of the Civil Code, if both parties were nonresidents when the cause of action accrued, and the defendant resided in a foreign state until the cause of action was barred by the law of that state: Bruner v. Martin, 76 Kan. 862, 123 Am. St. Rep. 172.

MARRIOTT v. WILLIAMS.

[152 Cal. 705, 93 Pac. 875.]

EVIDENCE-Acts and Declarations of Injured Person, When not Admissible.-In an action to recover damages for personal injuries inflicted by the defendants by beating and shooting plaintiff, the fact that he asked his wife immediately afterward to come where he lay and lock the door of that room and also the door of another room, and that she immediately did so, is not admissible as part of the res gestae. It tends to show the plaintiff's fear either that the defendants would follow and inflict further injury, or would annoy his wife, and is therefore immaterial, but not prejudicial, and its admission does not warrant a reversal. (p. 89.)

EVIDENCE in an Action for Personal Injuries Inflicted by the Defendants Tending to Show Their Acquittal in a Criminal Prosecution. In an action to recover damages for personal injuries suffered by the plaintiff at the hands of the defendants, if the plaintiff, on cross-examination, testifies to the criminal prosecution of the defendants for the assault, and that he was the prosecuting witness, it is proper for the court to refuse to admit evidence of their acquittal, because the only legitimate purpose of proving the prosecution was to show the feelings of the plaintiff against the defendants. (p. 91.)

EVIDENCE of the Defendants' Wealth at the Time of the Trial is admissible where the plaintiff asks for exemplary damages. (p. 91.)

DAMAGES FOR ASSAULT, Mitigation of by Evidence of Defamatory Articles Published by the Plaintiff. In an action by the publisher of a newspaper to recover damages for an assault upon and shooting of him, in which the defendants pleaded, in mitigation of damages, the publication by plaintiff of defamatory articles, it is proper for the court to instruct the jury that these articles cannot be considered in reduction of actual damages accruing from the plaintiff's pain and physical injuries, loss of time and moneys expended, or for any other element of actual damages, but only in reduction of or setoff against exemplary damages. (pp. 91, 92.)

EVIDENCE-Burden of Proof of Self-defense on the Part of Persons Committing an Assault. When, in an action for personal injuries inflicted on the plaintiff by the defendants, they admit the assault and injury and claim to have acted in self-defense, the plaintiff is not bound to prove in the first instance that he was not the aggressor. The burden of proving self-defense rests on the defendants. (p. 92.)