Kitnel v. Higgins ( 1871 )

Opinion by

Judge Lindsay :

The peremptory instruction in favor of the appellee was erroneous. If, by any rational deduction from the fact's proved in the trial, a right of action might be maintained, the court should not instruct as in case of a non-suit.

In this case the defense relied upon is the statute of limitation. The cause o faction accrued in the state of Arkansas, and whilst the evidence is not clear as to the citizenship of appellee at the time, 'inasmuch as he was then the lessee of a farm in the state and was present at the time of the conversion of the cotton gin, it may be assumed that he was then a resident of that state'. It is not shown that he remained in Arkansas until by the laws of that state the action was barred by the lapse of time. Sec. 19, Art. 4, Chapter 63, R. S.

If he left Arkansas before the statutory bar became complete and become a resident of Kentucky, he cannot avail himself of our statute until he has remained here the full term of five years after giving our courts jurisdiction of his person.

The evidence does not show that he had resided in Kentucky five years next proceeding the institution of this action.

The onus was upon the appellee to bring himself within the statute. Failing to do so by evidence so satisfactory as to exclude any rational deduction against the existence of a state of facts sustaining his plea, the question should not have been taken from the jury.

Judgment reversed and cause remanded for a new trial consistent with this opinion.