It was formerly determined, that a new promise made by the defendant in the State of New York, in 1822, there being no evidence of his return or leaving property within this Commonwealth, came within the saving in the 4th section of the statute. Little v. Blunt, 9 Pick. 488. This vrould be decisive in respect to the new promise in 1810, except for the distinction taken by the counsel for the defendant, between a new promise made before, and one made after, the original cause of action has been barred by the stat ute. But we think this distinction is immaterial. In one sense every new promise is a new cause of action ; as the statute operates upon it in the same manner as upon the original cause of action ; in another sense, it is not; as the forms of pleading do not require the plaintiff to declare on it
The defendant objected, that at the time of the new promise made at New York in 1810, he had a domicil in New York, and so he is not embraced by the exception in the statute, the words “ if any person, at the time the action against him accrued, was without the limits of the Commonwealth and did not leave property therein,” and the words “ after such person’s return into this government,” implying that he must be an inhabitant at the time of the promise. It would seem that the defendant comes within the exception, inasmuch as he was formerly an inhabitant of the Commonwealth. But we do not put the case upon this ground, for the point has been determined in Dwight v. Clark, 7 Mass. R. 515 ; where it was held, that this provision comprehends debtors who never have been inhabitants or residents in this State. And this decision is supported by cases in England, and New York.
It is said, that the defendant has frequently been within the Commonwealth, and having property with him, between 1810 and the commencement of this action, and that this is conclusive upon the plaintiff, whether he had or had not knowledge of these facts at the time. But such a construction would be adhering to the letter, against the spirit of the statute. The object of the saving, is, that the creditor shall have an opportunity of arresting the debtor or attaching his property ; and for this purpose he must know, or by reasonable diligence have the means of knowing, that the debtor is within the Commonwealth or has left property here subject to be attached ; otherwise the statute will not begin to run. This question of knowledge or reasonable diligence is to be determined by the jury.
On the new trial, before Wilde J., evidence was introduced, showing that the notes were indorsed to the plaintiff in 1822.
On the part of the plaintiff, Gilman White, of Newburyport, deposed, that he had been a deputy sheriff ten years, that he had known the defendant thirty years, that the defendant resided in Newburyport till 1810, and then went to New York, that, the deponent had no knowledge that the defendant had been in Newburyport or elsewhere within the Commonwealth since he ceased to reside in Newburyport, and that he had made inquiries for the defendant of many persons, not only because he bad demands against him, but because he was asked to inquire for him by others, and particularly by Somerby.
Samuel Goodhue, of Newburyport, deposed, that he knew the defendant from 1801 to 1810, when the defendant removed to New York, that he married the defendant’s sister, that he had a large demand against the defendant, and that he had no knowledge of his being in the Commonwealth, since he ceased to reside in Newburyport.
Philip Bagley, of Newburyport, a deputy sheriff, deposed, that the defendant gave him a note dated April 26, 1810, that he had never heard of the defendant’s being in the Commonwealth since that day, that he had always been on the look-out and made inquiries for him, in order to collect his note.
The jury being unable to agree on a verdict, with the con-; sent of the judge the case was referred to the whole Court, and judgment was to be entered according to their decision upon the law and the weight of the evidence.
■ C. G. Loving and E. J. Loving, for the plaintiff.
Bartlett, for the defendant, contended, that the replication setting forth an indorsement in July 1810, was not supported by proof of an indorsement on December 20, 1822. The time is material, for the defendant came to the trial prepared to prove notice to Little, of his return subsequently to July 1810, whereas it appears, that Somerby held the notes from
Wilde J. delivered the opinion of the Court. Since this case came last before us, on questions of law raised by the pleadings, two trials have been had on the merits, in each of which the jury were unable to agree upon a verdict. The case is now submitted, and is to be decided, by the agreement of the parties, according to the weight and legal effect of the evidence, as reported on the last trial.
Two questions only have been discussed.
1. The first is, whether there is any material variance between the facts proved, and the averments in the declaration.
2. Whether the evidence is sufficient to take the case out of the exception or saving clause in the statute of limitation, on which the plaintiff relies.
As to the first question, it is undoubtedly true that the plaintiff must prove his case as it is set out in the declaration. The allegata and probata must correspond. But there are some well-known exceptions to this rule. A party, is not Dound to prove matters which are merely surplusage, nor immaterial averments, and if the proof does not correspond with such matters and averments, the variance is not material. The objection in the present case is, that in the three first counts in the declaration the notes are averred to have been indorsed to the plaintiff on the days of their dates respectively, in the years 1807 and 1810, and the evidence proves the indorsements to have been actually made in the year 1822.
The general principle is, that in all torts and parol contracts, the day when the tort is alleged to have been committed, or the contract made, is not material; and if the defendant makes it material by his plea, the plaintiff may reply another day, and it will be no departure ; and the same principle applies to a case where it becomes necessary to prove when the contract was made, and it does not agree with the time alleged in the declaration. If time however enters into the terms of a written contract, the true time must be stated. Gould on Pleading, c. 3, § 65, 66, 67, 71. Thus, if the date of a note of hand is alleged, the day of the date becomes material, for it enters into the description of the contract, and
No such averment is made as to the notes now in suit, and we think therefore that the variance is immaterial.
In Russel v. Langstaffe, 2 Doug. 514, the notes sued were indorsed before the blanks in them were filled up, and the plaintiff recovered, although the allegation in the declaration, that the notes were indorsed after they were made, was disproved by the evidence. And in Young v. Wright, 1 Campb 139, it was averred in the declaration, that the indorsement of the bill of exchange was made before it became due, and it appeared in evidence to have been made after it became due, and Lord Ellenborough held that the variance was not material.
The defendant’s counsel have argued, that the variance in this case has operated, or may be supposed to have operated, as a surprise, as they had a right, from the averment in the three first counts in the declaration, as to the time of the indorsement, to come prepared to prove that Little, before 1822, had notice of the defendant’s return within the Commonwealth, and not that Somerby, the original promisee, had notice. No such surprise, however, can be presumed, as the true time of the indorsements was set out in the three last counts in the declaration.
But if there had been any surprise, the defendant would have been allowed time to procure further evidence, and this would be no valid objection to the form of the declaration, and the established rules of pleading and evidence, in similar cases.
The remaining question depends on the sufficiency and lega, effect of the evidence. The plaintiff, in his replication to the defendant’s plea of the statute of limitations, alleges a new promise made by the defendant on the 10th day of July 1810, averring that he was then without the limits of the Commonwealth, and did not return until within six years before the commencement of the action, and during that time had no property or estate liable to attachment within the Commonwealth.
That this evidence, disconnected with any other proof or circumstances, would be sufficient to maintain the issue for the defendant if the creditor had resided in Boston, we have no doubt. There is no express proof of any concealment, and the only circumstance relied on by the plaintiff’s counsel to raise a presumption of that fact is, that so few witnesses have
We are then to consider the evidence on the part of the plaintiff.
It appears that the defendant, a short time before his letter to the plaintiff of July 1810, left Newburyport, where he was settled in business and had long resided, deeply in debt, and much embarrassed in his pecuniary affairs. Goodhue testifies, that for some, time before, he had become insolvent; and it does not appear that he has ever since been able to extricate himself from his embarrassments. Nor is it proved that he has ever since visited Newburyport, although he left two sisters there, and no doubt many other connexions and friends. The evidence proves conclusively, we think, that he has never appeared there openly since he left for New York. The depositions of White, Bagley and Goodhue, are strong to this point, and prove further, that the deponents had never been able to learn that the defendant had ever been within the limits of the Commonwealth after his leaving Newburyport in 1810 Goodhue testifies that his demand was large, and that he was very desirous to find the defendant in this State, in order to arrest him on his demand. His means of information in consequence of his connexion with the defendant, would undoubtedly facilitate the success of his inquiries. From these facts and circumstances and some others of less importance, we think the inference is very strong, that the defendant avoided visiting Newburyport for fear of arrest by some of his creditors there, and he had cogent inducements so to do. The same inducements would lead him to conceal, as much as possible, from the same creditors, his occasional journeys to Boston ; and this will account in some measure, for the deficiency of the defendant’s evidence to prove that his visits of business in Boston were open and public and not clandestine.
To avoid the exception in the statute, the defendant is
Considering the whole evidence, we do not think it sufficient for this purpose.
There is no proof that Somerby had any actual knowledge of the defendant’s visits to Boston, nor is there any circumstance shown from which it may be presumed ; nor is there any evidence of the want of due diligence on his part to acquire the necessary information.
Gilman White. testifies, that he was requested by Somerby to make inquiries, and to be on the look-out for the defendant. And both he and Bagley say that they did make inquiries repeatedly, and that their inquiries were ineffectual.
In respect to the defendant’s property brought with him to Boston for sale, we think the evidence is still less favorable to the defendant, for the creditors could have had no means of discovering that he had property here, unless it could have been found in his possession.
On both grounds, therefore, we are of opinion, that the evidence fails to avoid the exception in the statute of limitation, and the plaintiff is entitled to judgment.*
*.
See Revised Stat. c. 120, § 9.