Mooar v. Harvey

125 Mass. 574, 1878 Mass. LEXIS 139

Opinion

Gray, C. J.

Although a judge is not bound to receive a request for instructions after he has concluded his charge to the jury, yet, if he does give further instructions, they are a subject of exceptions. The defendant’s intention was a fact in controversy at the trial, and was in law a material element in determining whether he resided out of the Commonwealth, within the meaning of the statute of limitations. Gen. Sts. c. 155, § 9. Langdon v. Doud, 6 Allen, 423, and 10 Allen, 433. Hallet v. Bassett, 100 Mass. 167. Perkins v. Davis, 109 Mass. 239. The instructions given, informing the jury, in one breath, that if the defendant resided out of the Commonwealth his intention was immaterial, and, in the next, that if the jury were in doubt as to his residence they might consider his intention as matter of evidence, were contradictory and insufficient, and tended to confuse, if not to mislead the jury; and having been specifically excepted to, the Exceptions must be sustained.