Slocum v. Riley

• Decision Date: 25 November 1887
• Citation: 145 Mass. 370,14 N.E. 174
• Parties: SLOCUM v. RILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 370

14 N.E. 174

SLOCUM v. RILEY.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1887

COUNSEL

J.M. Wood, for plaintiff.

The exceptions admit that the plaintiff has established his case so far as to be entitled to damages. The only question at issue is what constitutes the damages. The issue between the parties must be determined by the pleadings. The burden was on the plaintiff to establish his case. To do that required him to prove the indebtedness of Maynard; the suing out of the writ with the affidavit; the plaintiff's direction to the defendant to arrest Maynard; the arrest and escape as alleged; and the facts as set forth in the affidavit; and the further facts in the declaration in this case that Maynard had previously moved out of the state, as a reason for the affidavit and arrest, and not as a reason that the claim was not barred by the statute of limitations. The plaintiff might infer his intention to leave the state again,--an inference the facts show to have been well founded. To support damages it was competent for the plaintiff to prove that Maynard left the state at the time of the escape, and has remained beyond its jurisdiction. This evidence was necessary to the plaintiff's case to prove damages. It was not necessary to prove that the claim was not barred by the statute of limitations. And it is not a fair inference to suppose that the plaintiff put in this evidence to establish a point which he was not called upon to prove. The plaintiff was not required to prove that the note was not barred by the statute of limitations, for that issue was not raised by the pleadings, and the plaintiff would have no notice of such an issue. In Thomas v. Waterman, 7 Metc. 227, the court say that it is not a presumption of law that a promissory note is barred, from the mere fact that more than six years have elapsed since its date, and that if it was barred it was incumbent on the defendant to show that fact. The statute being a strict defense, if the party omit to plead it, the court will not relieve him by permitting him to amend by adding the plea. Ang.Lim. § 285, and cases there cited. The court say in Inhabitants of West Hoboken v. Syms, 9 Atl.Rep. 780: "The statute of limitations should be regarded as a strict defense; and if the party lets it slip the court ought not to relieve him." Railway Co. v. Brown, 4 S.W.Rep. 781. It was competent for the plaintiff to put in evidence of the reasonable probability of the payment of the note by Maynard, had the defendant committed him by showing that he had personal property. Plaintiff was not required to prove mathematically that Maynard had over $20. It was for the jury to say, upon all the evidence, what the probabilities were that the debt would have been paid, and the damage to plaintiff resulting from the escape. Chase v. Keyes, 2 Gray, 214, 215; Griffin v. Brown, 2 Pick. 304-309. Defendant might show the damage to be less than the debt. Moore v. Moore, 25 Beav. 8; Brooks v. Hoyt, 6 Pick. 468.

Braley & Swift, for defendant.

The burden of proof was on the plaintiff to show such damages as he had suffered by the wrongful act of the defendant in permitting the escape of Maynard. If he had no legal claim against Maynard, then he is entitled to nominal damages only. Weld v. Bartlett, 10 Mass. 473; Laflin v. Willard, 16 Pick. 64, 67. The defendant could show, in mitigation of damages, that plaintiff's debt was barred by limitation. Brooks v. Hoyt, 6 Pick. 468, 469; Woods v. Varnum, 21 Pick. 165, 168; Gallup v. Robinson, 11 Gray, 20, 25. The plaintiff's declaration alleged that, at the time of suing out the capias writ, Maynard was indebted to him, and that Maynard had lately moved out of the state. The answer, among other things, set up a general denial. The plaintiff was obliged to prove a debt due at the time of the issuing of said writ, if he claimed more than nominal damages. While no question as to the weight of evidence arises on these exceptions, the burden was on him to show that the debt so sued for was an existing obligation, and not barred by the statute of limitations. Pond v. Gibson, 5 Allen, 19, 21; Hill v. Crompton, 119 Mass. 376, 381. The plaintiff, in trying to prove his case for damages, failed to establish his debt as legally existing at the time when the arrest was made. "Absence from the state of itself is clearly not sufficient to suspend the operation of the statute." On the evidence for the plaintiff but one inference could be drawn: that Maynard had a last and usual place of abode in this state, and had never acquired a domicile without the state. Pub.St. c. 197, § 11; Langdon v. Doud, 6 Allen, 423, 425. "The statute operates by mere lapse of time." "The deduction is to be made out affirmatively by the plaintiff." Steam-Engine Co. v. Schumacher, 109 Mass. 416, 418. The instruction as to damages was right.

OPINION

MORTON, C.J.

This is an action against an officer for negligently suffering the escape of one Maynard, whom he had arrested upon a writ sued out by the plaintiff. At the trial the defendant admitted his liability, and the only question presented to us is as to the correctness of the ruling of the court upon the subject of damages. The plaintiff claimed that he was entitled to recover the amount of his debt against Maynard. It appeared that the plaintiff's writ against Maynard was dated on August 20, 1881. In order to prove the debt of Maynard, the plaintiff produced a note, signed by Maynard, and described in the writ against him, of the following tenor: "FALL RIVER, March 21, 1874. Four months after date I promise to pay to the order of M. Bradford Slocum, forty-one 7-100 dollars, value received." Upon the face of the note it was barred by the statute of limitations, more than six years having elapsed from its maturity to the date of the writ against Maynard. The plaintiff then attempted to show that the running of the statute of limitations had been suspended by the absence of the maker from the state. But, in computing the period of limitation, the time of a debtor's absence from the state is not to be excluded, unless it is of such a character as to work a change of his domicile. Collestor v. Hailey, 6 Gray, 517; Langdon v. Doud, 6 Allen, 423. The evidence...