Mazozon v. Foot

| Vt. | Jan 15, 1826

The opinion of the Court was pronounced by

Skinner, Ch. J.

In this case, we are called upon to give a construction to that part of the 10th section of the statute of limitations, which excepts from its operation, actions against debt-: ors absent from the state at the time the cause of action accrues, and by which, “after such absent person’s coming or return within this state,” the same time is limited for bringing the action, as in other cases. The case shows, that at the time the cause of action accrued, the defendant was a resident in the state of New-York, and the plaintiffs in this state; that within eight years from the time the cause of action accrued, the defendant had in two instances come to the town of Middlebury, in this state, and remained there publickly several weeks, and from these facts the Court instructed the jury, that the defendant was not entitled to the benefit of the statute. *

It cannot be supposed, nor does the defendant insist, that every coming or return into the state, would set the statute in operation. He admits it must be such, as that by due diligence, the creditor might cause an arrest.

If the debtor should -remove or return into the state publickly, and with a view to dwell and permanently reside within its jurisdiction, although in an extreme part from the place of his former residence, or that of the creditor, this would undoubtedly bring the case, by a correct construction of the statute, within its operation, though the creditor should have no knowledge of his return. So too if the debtor, having no intention to reside here, comes or returns into the state, and this is known to the creditor, and he has opportunity to arrest the body, the case is brought within the statute. In the latter case, it is necessary the creditor should be apprised of his debtor’s being within the jurisdiction of this state; and the only question in the case before us is, were the jury at liberty to presume such knowledge in the plaintiff from the facts produced on trial ? We believe no such legal inference would arise. It would be dangerous to adopt it as a rule, that the residence of the creditor in an adjoining town to that in which his debtor may have been for a short period, would raise a presumption that the creditor knew the fact, and it would be difficult to say what facts should afford such presumption. Within what distance of the creditor’s residence the debtor shall come, how long he shall remain, and how publicly he shall sojourn, cannot be settled by any general rule. We therefore beiieve the only safe and practicable rule is, to require proof of actual knowledge, where the residence is only temporary.

Doraslus Wooster and S. S. Phelps, for the plaintiffs. Daniel Chipman and Geo, Chipman, for the defendant.

Motion denied, and judgment on the verdict.