Withers v. Bullock

Campbell, J., delivered the opinion of the court. The evidence in this cause is so conflicting* that the verdict should not be disturbed, as being manifestly wrong upon the testimony. We do not perceive any error in the admission as evidence of the receipt identified as that given by Bullock to A. McPike. Nor can we determine whether it was proper or not to exclude “ plantation book No. 2,” offered by Withers. The book was before the circuit judge, and is not before us, nor does the record contain enough to enable us to see that the circuit judge decided erroneously in the rejection of this book, and, therefore, we must hold that he decided correctly as to this. It is immaterial whether the sixth instruction given at the instance of the plaintiff below is correct or not, since it is manifest that, upon the testimony of Withers himself as to his absence from the State, the oldest item in the account was not barred by the Statute of Limitations. This item bears date 30th April, 1870. The suit was instituted 18th March, 1874. Withers removed from this State in June, 1871, and was absent from this State more than twelve months between that time and the commencement of this suit. He resided in Kentucky, and, though he returned and spent considerable periods of time in this State, was a mere visitor, and the time which elapsed after 30th April, 1870, and before his removal from the State, added to the several periods of his sojourn in this State, does not complete three years before the institution of this suit. The time of his absence after the cause of action accrued is not to be taken as any part of the time limited for the commencement of the action. Code 1871, § 2157. The time of his absence from the State cannot be counted in his favor, but is to be deducted from the time between the accrual of the cause of action and the commencement of the action. The ease of Ingraham v. Bowie, 33 Miss. 17, is not applicable to this ease. That was the case of absence from the State : this is the case of residence out of the State and absence from it. The last clause of the statute cited applies to one who “ shall be absent from and reside out of the Statef and introduces a different rule from that announced in the case cited.- Judgment affirmed.