Whitton v. Wass

| Mass. | Nov 15, 1871

Colt, J.

The instructions given were sufficiently favorable to the plaintiff, and were all that were required by the evidence in the case. The jury, under them, must have found that the defendant had his domicil in this Commonwealth at the time the • note in suit became due, and that, although he was out of the state at that particular time, yet he openly returned in August following, and retained his domicil here, notwithstanding some absences, for more than six years prior to the commencement of this suit.

This makes the statute of limitations a bar to this action. After the statute begins to run in favor of a party whose domicil is nere, there is to be no deduction for absences which do not amount to a change of domicil. Collester v. Hailey, 6 Gray, 517. Langdon v. Doud, 10 Allen, 434.

At the time when the cause of action accrued, the defendant was out of the state. In such case, it is provided that the action may be commenced within six years after the return into the state. Gen. Sts. e. 155, § 9. The judge gave to the plaintiff the most favorable construction of the phrase “ out of the state,” as used in the statute, and ruled that the time would begin to run from such return, if the defendant’s domicil was then and had before been in Boston, unless the return and stay here were secret.

The plaintiff claimed that the time would not begin to run unless it was shown that he knew of the return, or might with reasonable diligence have known it; and now relies upon Little v. Blunt, 16 Pick. 359, in support of the proposition. But the rule there laid down was under the St. of 1786, e. 52, and with reference to a defendant who had no domicil here when the cause of action accrued. Important changes were introduced into the statutes of limitations by the Rev. Sts. c. 120, § 9, and justify the refusal to rule as requested upon this point. Formerly a return into the Commonwealth, even by a party who had never resided here, was sufficient to cause the period of limitation to commence and continue to run till the bar should be complete; but under the new provision such return is to be followed by six years’ residence. The plaintiff is not injured by the instruction that a return openly made, followed by the residence required, was sufficient. Per Bigelow, C. J., in Milton v. Babson, 6 Allen, 322.

The last instruction asked was substantially given, and the exceptions to the refusal to give other instructions asked for at the trial are not now insisted on.

Exceptions overruled.