Webster & Gage v. Rees

Lowe, Ch. J. Our attention is called to three supposed matters of error in the proceedings below. l. Evidence : statute laws'. First, in allowing the defendant to introduce in evidence to the jury, what purported to be the statute of the State of Massachusetts, without any proof of itg authenticity. From the bill of exceptions it appears that the defendant offered in evidence a volume of printed laws, purporting to be the statute laws of Massachusetts, with the usual certificates of authenticity printed therein, and purporting to be published by the State printers, etc. As the statute thus introduced purported to have been published under the authority of the State, the court did not err in admitting these as presumptive evidence of such laws. See Nev. § 4063. s. statute of ™no«íofs: state. Second, at the request of defendant’s counsel, the court charged the jury, that if the defendant continued to reside in the State of Massachusetts, and no action was commenced on the note in question, for g-x yearg after hhe note became due, then. it was barred by the statute of Massachusetts, and the jury must find for the defendant. The evidence shows that the defendant continued to reside at Lowell, Massachusetts, more than six years after the maturity of the note, as did also the payee, who, during that time, held the note. The 'objection, [271] therefore, to the instruction, is met by the provisions of section 2746 of the Eevision, which clearly authorized the same. sin"lT ofStl" defendant. Lastly it is complained that the court refused the f°^owing instruction, asked by the plaintiffs, yiz. • “If the jury find from the evidence given by the defendant, as a witness on the stand, that the indebtedness still justly subsists, then you will find for the plaintiffs.” This instruction was intended to be based upon the provision of section 2742 of the Eevision, which declares that “ in actions founded on contract, the above limitations shall not apply if from the answer of the defendant, or from his testimony as a witness, it appears affirmatively that the cause of action still justly subsists. “Now, whether effect i^to be given to this section, even in a case made under it, when the defendant has clearly brought himself within the provision of section 2746, showing that the action had been fully barred by the statute laws of another State, we need not now decide, for the reason that there is another sufficient answer to the error complained of, namely, that there was no evidence given by the defendant on the stand that would justify the giving of such an- instruction. "What the defendant testified to in regard to a subsisting indebtedness was this, “ that he did execute the note; that he afterward executed an assignment to a commissioner in bankruptcy in Massachusetts, and obtained a discharge; that some dividend was paid creditors, but did not know how much, thought some forty per cent or-more; did not know as plaintiff claimed as creditor under same; note was otherwise wholly unpaid.” These facts were elicited in evidence by the plaintiffs themselves, and so far from showing that the note sued on [272] constituted a subsisting debt, they show just the reverse— that the defendant had been wholly discharged from the same under the insolvent laws of Massachusetts. i. bankrupt state.' The doctrine is, that such laws form a part of every contract made in that State, and to be performed therein. The evidence in this case, further shows that at the date .of the note, the parties thereto both'resided in Massachusetts; that there is no stipulation upon the face of the note that it was to be paid elsewhere. That both parties probably intended to reside in Massachusetts, until after the defendant’s proceeding in bankruptcy, which had the effect to operate a full discharge from his indebtedness. See 3 Parsons on Contracts, 439, and note and authorities cited. In the- absence, therefore, of any testimony whatever, showing a subsisting indebtedness, it follows that the court did right in withholding from the jury the instruction referred to. The judgment will be Affirmed.