Palmer v. Shaw

Citations

• 16 Cal. 93
• 1860 Cal. LEXIS 174

Syllabus

<p>The general language of section one of the Limitation Act of 1855, that actions in the cases therein named “ can only be commenced within two years from the time the cause of action has accrued, or shall accrue,” is controlled and limited by the twenty-second section of the Limitation Act of 1850.</p> <p>Suit commenced January 8th, 1859, on a note executed in New York, and due January 1st, 1856. Defendant not in this State when the cause of action accrued, but arrived here March 28th, 1856, and remained until June 20th, 1856, from which time he was absent until February 14th, 1857. Plaintiff resided in New York, and was fully informed of the movements of defendant. Some evidence tending to show that defendant came to this State in 1856, for a temporary business purpose, intending to return to New York and form a partnership, according to previous arrangement. Defense, Statute of Limitations of two years: 3dd, that the case is within the statute, and that the statute commenced running on the arrival of the defendant here in March, 1856—there being no fraud or concealment on the part of defendant, and his presence here between March and June being open and public, and sufficient for the commencement of a suit.</p> <p>The word “ return ” used in the twenty-second section of the Limitation Act of 1850, is held by the authorities to apply as well to persons coming from abroad as to the citizens of the country going abroad for a temporary purpose and then returning. But the coming from abroad must not be dandestine, and with an intent to defraud the creditor, by setting the statute in operation and then departing.</p> <p>Cases on this point cited and commented on.</p>