Several exceptions are taken to the ruling of the court.
1. That the period of absence of the defendant out of the State, as disclosed in the defendant’s answers to the plaintiff’s interrogatories, should not be taken as any part of the time of limitation, under Rev. Sts. c. 120, § 9, and that the judge should have so directed.
It is now urged in argument, that this question of absence was a question of fact for the jury, as it was held in Lyman v. Fiske, 17 Pick. 231. It is true, that the fact of habitancy or domicil, that is, whether one was an inhabitant of a particular place at a particular time, is a question of fact, often dependent on conflicting and nicely balanced evidence. But the construction of the statute, as to what constituted an absence from and residing out of the State, so as to be excluded from the computation of the time of limitation, was a question of law. And further, the plaintiff made no request to go to the jury, but himself requested the direction of the court, upon the facts stated in the answers. And the court are of opinion that the direction was right. The facts disclosed temporary absences only, or visits, leaving his family here, effecting no change of domicil or residence.
*5192. The plaintiff also requésted the judge to rule that the time elapsing between the first publication of notice in insolvency and the granting of the discharge should not be taken into consideration in computing the time of limitation. This the court declined, but ruled the contrary.
This objection seems to have been founded on a rnisun derstanding or misapprehension of the authority of Minot v Thacher, 7 Met. 352. There the question was, as to the rigfc of a creditor to prove a debt under proceedings in insolvency, where six years had not elapsed at the time of the first publication, but had passed when the debt was offered for proof. It is placed expressly on the ground, that, at the time of the first publication, the assets of the insolvent were sequestered and placed in the custody of the law, in trust for those who were then creditors, who then had provable debts. Of course, the further lapse of time could not defeat the right thus vested, to have a share equally with other creditors in this trust fund.
But this has no bearing upon the question of the pleading of the statute of limitations to an action which is wholly independent of the proceedings in insolvency. Such proceedings do not prevent a creditor from bringing an action, if he chooses so to do. He does it certainly at the peril of costs, if the discharge is seasonably obtained and pleaded in bar, so that there is not much temptation to do it. But there is nothing in law to prohibit it. Against such an action therefore the statute continues to run, as if no insolvency had intervened.
It is stated as a fact in this case, that the defendant had obtained his discharge; but as it does not appear to have been alluded to either by the judge or in the argument, we have placed no reliance upon it. Exceptions overruled.