Bass v. Berry

51 Cal. 264

Opinion

By the Court:

The action being founded upon an instrument in writing executed out of the State, the statutory bar of two years presumptively applies. If the plaintiff’s case could be relieved in this respect by the fact of the absence of the defendant from the State, that fact should have been averred in the complaint. The absence of the defendant would be a fact exceptional in its character; and unless such absence were alleged in the complaint, his presence in the State must be intended.

We think, therefore, that the demurrer to the complaint was correctly sustained, and that the judgment must be affirmed.

So ordered.