The Rev. Sts. c. 120, § 9, provide that “ if, after any cause of action shall have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” The refusal of the presiding judge to give the instruction requested, and the instructions which he gave, did not allow the deduction of the time of the defendant’s absence from the Commonwealth, unless he “ was permanently absent from and permanently resided out of the Commonwealth,” even if he retained no dwelling-house or boarding-place within the Commonwealth ; whereas, if his residence out of the Commonwealth was but temporary, yet if the time of his proposed return was indefinite, he retained no domicil in the Commonwealth, and therefore, even upon the strictest construction of this statute, was absent from and resided out of the Commonwealth. Holmes v. Greene, 7 Gray, 299. Collester v. Hailey, 6 Gray, 517.
Exceptions sustained.
See Langdon v. Doud, 6 Allen, 423; Whitney v. Sherborn, 12 Allen, 111.