16 Cal. 93 | Cal. | 1860
Field, C. J. concurring.
This is an action upon a promissory note executed^ in the State of New York. The note was due on the first of January, 1856, and the suit was commenced on the eighth of January, 1859. The defense is the Statute of Limitations. The defendant was not in this State when the cause of action accrued, but arrived here on the twenty-eighth of March, 1856, and remained until the twentieth of June, from which time he was absent until the fourteenth of February, 1857. The plaintiff resided in New York, and was fully informed of the movements of the defendant. There was some evidence tending to show that the defendant only came to this State in 1856, for a temporary business purpose, and that his intention was to return to New York and form a partnership with the plaintiff, in accordance with a previous arrangement upon the subject. The question is, whether the statute commenced running at the time of the arrival of the defendant in 1856.
By the first section of the Limitation Act of 1855, it is provided that suits of this character shall be commenced within two years after the accruing of the cause of action; but the effect of the general language used in this section is controlled and limited by the provisions of the twenty-second section of the Act of 1850, which reads as follows: “ If, when the cause of action shaE accrue 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 shaE have accrued, he depart the State, the time of his absence shaE not be part of the time limited for the commencement of the action.” (Wood’s Dig. 48.)
The Court below instructed the jury to find for the defendant, if they believed, from the evidence, that he had been in the State two years since the maturity of the note. This instruction was based upon a literal interpretation of the section above quoted, and although it
It has been uniformly held, in the construction of statutes similar to ours, that the word return applies as well to persons coming from abroad as to citizens of the country going abroad for a temporary purpose and then returning. But it seems that the coming from abroad must not be clandestine, and with an intent to defraud the creditor, by setting the statute in operation and then departing. “ It must be so public, and under such circumstances,” says Angelí, “ as to give the creditor an opportunity, by^the use of ordinary diligence and due means, of arresting the debtor. * * A return even for a temporary purpose will do away with the exception of absence, if not a secret, concealed or clandestine presence, of which the creditor can take no advantage. His presence must be so public and under such circumstances as the creditor may, by ordinary diligence, make an arrest.” (Ang. on Lim. 216.)
It was said by the Supreme Court of Massachusetts, in White v. Bailey, (3 Mass. 270) that the return to the State must be with a design to dwell within the jurisdiction of the Commonwealth; but the point was not before the Court, and in Byrne v. Crowningshield (1 Pick. 262) a different rule was laid down. In the latter case the Court said: “ By a return within the government, must be meant such a return as would give a party reasonable opportunity to commence an action.”
The Supreme Court of the United States, in Faw v. Roberdeau (3 Cranch. 174) held that even a return for a temporary purpose was sufficient to set the statute in motion. The case arose under the statute of Virginia, which contained a saving clause in these words; “ Saving to
The Court of Appeals of Maryland, in Hysinger v. Baltzells, (3 Gill & Johns. 158) in speaking of certain statutes of that State, said: “ These acts are to be taken together, and to receive a construction to carry into effect the plain and obvious intention of the Legislature, that limitations should not attach against a creditor, where the debtor was absent from the State at the time the cause of action accrued, because no beneficial result could be expected from the suing out a writ, when the debtor could not be arrested. But this privilege should cease when the pause upon which it was founded is removed. If, therefore, the debtor, at any time after the cause of action accrued, by his presence in the State, afforded the creditor an opportunity to prosecute his writ with effect, he should institute an action within the time required by the Act of 1715, or his claim would be barred by limitation. To bring the case within the Act of 1765 the presence of the debtor in the State must be such as to enable the creditor to avail himself of it. A secret, concealed, clandestine presence, for any length of time, of which the creditor could not take advantage, would not be sufficient.”
“The coming from abroad,” said the Supreme Court of New York, in Fowler v. Hunt, (10 Johns. 463) “ must not be clandestine, and with an intent to defraud the creditor by setting the statute in operation and then departing. It must be so public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting the debtor.”
These views are conclusive of the controversy, and it follows that the judgment of the Court below must be affirmed.
Ordered accordingly.