Hackett v. Kendall

Statute of limitations. Absence. Domicil. Promissory note. Title of bearer. A debtor must be considered “ to be absent from and reside out of the state,” within the meaning of the exception in the statute of limitations, when his domicil within the state is so broken up, that it would not be competent to serve process upon him by leaving a copy there. And for that purpose there must be some place of abode, which his family or his effects exclusively maintain, in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment. The defendant, in an action upon a promissory note, is not allowed to contest the ■ plaintiff’s title to sue, except for the purpose of protecting himself from a subsequent suit, in the name of some one having better title, and who has not acquiesced in the suit commenced. But where it appeared, that the person, who was claimed by the defendant to be the real owner of the note, had full knowledge of all the proceedings in this suit, and had not in any manner asserted any right to interfere, it was held, that a payment of the judgment to the plaintiff, if permitted by the real owner of the note, would be a sufficient protection to the defendant.

Assumpsit upon a promissory note for $23,50, dated September 30, 1841, payable to Mehitable M. Booth, or bearer, in one year from date, with interest. Pleas, the general issue and the statute of limitations, and trial by jury, December Term, 1850, — Pierpoint, J., presiding. On trial, the plaintiff, after giving in evidence the note declared upon, gave evidence tending to prove, that in the spring of 1844 the defendant, who had a family and kept house in Granville, Vermont, discontinued house keeping, and his wife went, with her child, to live with her father in Granville, and the defendant went to Massachusetts, for the purpose of finding temporary employment there, and not knowing haw long he should be gone, or where he should stop, but not intending to change his residence, but to return to Granville again, and leaving his furniture and property there, with his family; that he remained at work in Massachusetts for more than a year, his family residing all the time in Granville, and at the expiration of that time he returned and resided in Granville, with his family, until April, or May, 1846, when he again went to Massachusetts, taking his wife and child with him, and leaving his furniture and effects at Granville, and intending to remain in Massachusetts and work during the season, and then to return to Granville, and not intending to change his residence from Granville to Massachusetts. The defendant’s evidence tended to prove, that the intention of his wife, in accompanying him, was to visit some friends. It appeared, that the defendant, on this occasion, remained in Massachusetts, at work, until January, 1847, when he returned to Granville; and that he kept house in Massachusetts during the last three or four months of his being there; and that, about the time he commenced keeping house there, he made arrangements for returning to Granville, in pursuance of his original intention at the time he left. There was no conflict in the testimony as to the time and manner of the defendant’s residence in Massachusetts. The defendant gave evidence tending to prove, that the payee of the note in suit was the wife of one Sidney Booth at the time the note was given, and that the note was given in payment for a carpet, which belonged to Booth previous to his marriage, and which he sold to the defendant; — -and' also gave in evidence copies of record from the United States’ district court, showing the petition, proceedings thereon, decree and discharge in bankruptcy of Booth, after the execution of the note; — and also gave evidence tending to prove, that the note remained in the possession of Booth until a short time before the commencement of this suit, when he sold and transferred it to the plaintiff and soon after left the country; — and also proved by the assignee in bankruptcy of Booth, that he had no knowledge of the existence of this note, or of this suit, until the day of this trial, and that he never transferred the note to the plaintiff, or authorized any transfer of it or any suit to be commenced upon it. The defendant also offered to prove, that, at the time the note was executed, Booth requested to have it made payable to his wife, stating that he designed going into bankruptcy and wished that it should not pass to his assignee, and that the note was accordingly so executed. This evidence was objected to by the plaintiff and excluded by the court. There was no evidence, that the plaintiff had notice of the circumstances of the execution of the note, or of the proceedings in bankruptcy, before the purchase of the note. No evidence was introduced by the plaintiff in reference to the transfer of the note, or the facts connected with the consideration or possession of the note, or the proceedings in bankruptcy. The court instructed the jury, that, if they believed the witnesses, the period of the defendant’s absence to Massachusetts should be deducted from the period which elapsed between the time when the note became due and the commencement of this suit, for the purpose of determining the question, whether the note was barred by the statute of limitations; and that the facts proved in regard to the bankruptcy of Booth and the transfer of the note did not constitute any defence to the noté. Verdict for plaintiff. Exceptions by defendant.