27 N.H. 348 | Superior Court of New Hampshire | 1853
We have settled, in the, case of Gilman v. Cutts, 3 Foster’s Rep. 376, that any and every absence from the State, whether temporary or otherwise, which is such that the creditor cannot, during the absence, make legal service upon the debtor, must be reckoned, and that the statute ceased to run during each and all of the absences, if they were such that. legal service could not be made upon him.
If, then, the absences in this case were such that legal service could be made, the operation of the statute continued, and the verdict must be set aside.
The note in suit is dated on the 1st day of October, 1838. As nearly as can be estimated from the facts stated in the case, in the course of twelve years from the date of the note, the defendant has been absent from the State about eight years, and has been at home about four years.
The ninth section of chapter 181 of the Revised Statutes provides that if the defendant, at the time the cause of action accrued, or, afterwards was absent from and residing out of the State, the term of such absence shall be excluded in the computation of the several times limited for the commencement of personal actions.
The question, then, is, whether the defendant was, during these various periods, “ absent from and residing out of the State,” in the sense in which these words are used in the statute.
Upon the authority of the case above cited, the statute runs against the claim if legal service could be made during the periods of the absence of the defendant. We may for the present lay aside the period during which he was absent at Cincinnati, where he was from the spring of 1839 until the fall of 1841 o.r 1842, as the verdict must be set
It is very clear that the defendant, whenever he left Exeter, had the intention of returning, and it is equally clear that his domicil and residence were at Exeter during the whole period embraced in the case. He went away to get employment. From the year 1846 to the year 1850 he hired a house in Exeter, which was occupied by him and his wife. He supported his wife in Exeter, and paid his taxes there in each year. Once in each week or two, he came home, remaining from Saturday until Monday. His domicil, therefore, was in Exeter, and there was his usual place of abode, consequently the writ might have been served by leaving an attested copy at his usual place of abode, and personal notice might have been given him before judgment if, out of abundant caution, it was desired. The statute provides that service may be made by leaving a copy at the usual place of abode. Rev. Stat. ch. 183, § 2.
The facts stated in the case sustain the plea of the statute of limitations, and the plaintiff cannot recover.
Verdict set aside.
