State Bank v. Seawell

PARSONS, J. 1. The plaintiff offered to prove on the trial by a witness that, according to general reputation in the neighborhood of the defendant’s plantation, he was out of this State from the 12th day of April to the 17th day of September 1842, but the court rejected the evidence. In this, we think, there was no error. His absence might have been proved by positive or circumstantial evidence; it was a particular fact upon which the rights of the parties were to depend more or less, and [617] it could not be proved by reputation or hearsay evidence. No case, I believe, has gone so far. 2. The payee of the bill, who was released by the defendant, was admitted as a witness for him, and the plaintiff excepted to that also, and now contends that he was incompetent as a witness to impeach the validity of negotiable paper to which he was a party, on the ground of policy, and also because the defendant by his plea had denied the making of the bill. The opinions of this court, 1 Ala. 133, and 8 ib. 138, and the cases there cited, as well as others, are authorities in favor of the competency of the witness upon the first ground. It is not perceived that the witness had any actual interest on the side of the defendant, especially as he was released, which distinguishes this case from Herrick v. Whitney, 15 Johns. 240, and Shaver v. Ehle, 16 ib. 201. We think the witness was competent. 3. The Circuit Court held, in substance, that the defendant was entitled to the benefit of all the time that he was in this State, after the maturity of the bill and before the suit was brought, including the time he was within this State on his journeys to' and from his plantation in Perry county. It appears by the evidence that the defendant resided in North Carolina at and before the time of the date of the bill and continued to reside there until the fall of 1S43, when he moved to this State. But it also appears that for some years before the date of the bill until his removal to. this State in the fall of 1843, he visited his plantation annually, and remained there from the fall till the spring on each of his visits, and that since his removal he has remained in this State. There was no evidence that he came to, remained in, or left this State clandestinely at any time, or that he ever evaded the plaintiff, but it does not appear that the plaintiff had notice of his presence in this State. The statute is that if the debtor be out of this State at the time of the cause of action accruing, or at any time during which a suit might be sustained on such cause of action, then the person entitled to the action may bring the same against the debtor after his return into this State; and the time of the debt- or’s absence shall not be taken as part of the time limited by the act, (Clay’s Dig. 327, § 84,) which in cases like this is six years. Although the act uses the word return, which, indeed, can have a literal application in this case, yet almost all courts have held [618] acts, similar in this'respect,-to extend to persons-who never resided in the State, but came into it, after the cause of action ...accrued, for the first time. — 16 Pick. 363; 14 Mass. 203; 11 Wheat. 361; 3 Johns. 261; 5 Howard’s (Miss.) R. 266. The savings in the statutes of limitations of several, if not all of the States, in-respect of debtors returning into the State, are in other respects, not identical with ours. The saving or exception in Massachusetts applies where the debtor was absent, without-leaving property in the State; and there it seems to be the doctrine that the creditor either must have known of his return, so as-to h-ave had an opportunity to arrest him, or that his return was so public as to amount to constructive notice or Itnowledge, -and to raise the presumption that if the creditor bad used-ordinary diligence the debtor might have been arrested.— Little v. Blount, 16 Pick. 359. And there are intimations, if not decisions, to the same-effect elsewhere.-»-Fowler v. Hunt, 10 Johns. 475. But I think we cannot hold, in this State, any thing more under the saving clause of our act, than-that the debtor must appear openly in this State, not ooncealing himself from or evading the creditor, in order to have a right-to defend upon the time he was actually in this State. - -His presence in the State is all the statute requires, and that the time-of his absence from the State is not to be taken as part of the time limited by the act. Without engrafting provisions on the exception or saving of the act, which were, perhaps, intentionally omitted by the Legislature, we can require nothing more than an actual Open presence in the State. Therefore, we think, the defendant was entitled to the benefit of all the time he was in any part of this State, over which the courts had unobstructed jurisdiction, and consequently, we think, he was entitled to the benefit of the time he was travelling in this State, from and to his plantation. The statute of limitations is regarded now as a statute of repose and should have the full effect the Legislature intended. 4. The court refused to charge, as requested by the plaintiff, that if the jury believed from the evidence, that the defendant resided and made the bill out of this Slate, and did not remove itere till after the fall of 1S43, that then the onus was on him to prove that he was in this State six years after the bill matured and before the suit was brought, and the plaintiff excepted. [619] Whether material or not that the bill may have been drawn beyond this State, there were some circumstances in evidence from which the jury might possibly have infered that fact. Therefore, the charge prayed was not abstract, but had reference to the evidence before the jury. The plaintiff by the nature of.its replications took the onus of proof upon itself, hut.the onus may shift in the course of a trial several times. When the plaintiff proved the non-residence of,the d&fendant wbemthebill matured or when it was drawn, that turned the presumption against the defendant, because his non-residence was prima facie evidence of his absence and it lay upon him to show when it ceased; or, by evidence, to repel the presumption of his absence, that arose from it. If a court is expressly requested to charge with refererence to the analysis of the evidence, it ought, in most cases at least, to be done. In this case, if'the jury had been told that the fact of non-residence made a prima fade case against the defendant, and that the burthen of answering it by evidence was upon him, the jury might have come to a'different conclusion probably, than they did by looking at the evidence in a mass, without contrasting the positions of the parties or knowing upon whom the burthen lay. For refusing to give this charge there was error, we think, and for'that alone the judgment is reversed and the cause remanded.