Drew v. Drew

Rice, J.

— Contracts should be construed according to the intention of the parties so far as practicable, without a violation of legal principles. When «technical words, or terms of art are used, they should be construed according to their received technical meaning, unless it is manifest that they are used by the parties in’ a different sense.

The word outlaw has a distinct technical signification, and when used in that sense refers to persons, and not to things. Thus, an outlaw is one who is put out of the law; that is, deprived of its benefits and protection. In earlier times he was called a friendlesman; one who could not, by law, have a friend. An outlaw was said caput genere lupinum, by which it was meant, that any one might knock him on the head as a wolf, in case he would not surrender himself peaceably when taken. He forfeited every thing he had, whether it was in right or possession. All obligations and contracts were dissolved. 2 Reeves’ Eng Law, 20. But in modern times the word has a much less stringent meaning, importing, however; the forfeiture of property and civil rights. Bur. L. D., Tit. Outlaw.

By the unlearned the word, “ outlawed,” is often used in a *392 different sense. By such it is applied to notes, bills, and other evidences of debt, which are supposed to have become invalid by lapse of time; or in other words, the term is used as tantamount to the legal language, “ barred by the statute of limitations.” Thus a barred note in popular phrase, is said to be outlawed.

It is obviously in this sense that 'the word outlawed, is used in the contract under consideration.

The note of Haynes, which is the subject of the contract, bears date Nov. 8,1845, and was payable in one hundred and fifty-three days. It consequently fell due in April, 1846. If nothing intervened to prevent, that no te would have been barred by the statute of limitations, or, in the language of the parties, would have been outlawed, in April, 1852. If so found, the liability of the defendant, then attached under his contract, and not otherwise.

The case finds, that Haynes left his home in this State within a year after the note was given, and has never since returned; that he went from this State to New York, where he remained until about four years ago, when, in company with some fifty others, he started by the overland route, for California. Since about one week after starting on that expedition, his friends have neither heard from him nor his company.

By § 28, c. 146, it is provided, that if after any cause of action shall have accrued, the person against whom it shall have accrued, shall be absent from, and reside without the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.

The object of this provision, obviously was, to prevent debtors, against whom the statute of limitations had begun to run, from departing from the State, and remaining abroad a sufficient length of time for the statute to run out, and thus enable them to return and interpose this statute as a defence in bar.

The case finds, that Haynes has been absent from the State, and has not returned to it, since the expiration of *393 the first year after the note was given. The important question to be determined is, whether he has resided without the State, within the meaning of the statute. This provision was designed for the benefit of the creditor, to afford him protection in case his debtor should, for a series of years, place himself beyond the jurisdiction of our judicial tribunals. The absence of the debtor must be something more than a transient departure from his home on business or pleasure, and a temporary sojourn out of the State. Eor such casual interruption of his continuous personal presence, § -3, of c. 115, makes provision for the protection of both debtor and creditor.

To reside, is to dwell permanently, or for a length of time; to have a settled abode for a time. Webster’s Diet.

Inhabitancy and residence, do not mean precisely the same thing.as domicil, when the latter term is applied to succession of personal estate, but they mean a fixed and permanent abode, a dwelling place for the time being, as contradistinguished from a mere temporary locality of existence. 8 Wend. 134 .

In this statute, the word ■ residence is synonymous with dwelling place, or home; and a man cannot have such a residence out of the State as will interrupt the running of the statute of limitations, at the same time that he has an established residence, or home, within the State.

At the expiration of six years from the maturity of the note against Haynes, the legal presumption is, in the absence ■of proof, that the note was barred by the statute of limitation.

The burden of repelling or overcoming this legal presumption is upon the defendant. The case finds that Haynes left his home, and has never returned. He went to New York, where he remained until about four years ago, and then started'for California.

The language, “ left his home,” is neither indicative of an intention not to return, nor to reside away from home, but rather the reverse. Neither is, the succeeding language, that *394 he went to New York and remained, &c., tantamount to saying, that he resided in New York. To reside in a given place, imports something more than merely remaining in that place. The casual lodger a i a public inn, the sojourner and the wayfaring man, as well as the man who is held in duress against his will, each and all remain in the place where they may repose, for the time being, or within which they may be confined; yet such place of repose or confinement could, in no just sense, be called their residence or home.

So when Haynes left his home, it does not appear, that he intended to change or abandon it. He remained in New York, but it does not .appear that he had an established residence there, or intended to make that State his home.

As has already been remarked, the burden is upon the defendant, to repel the legal presumption in favor of the hypothesis of the plaintiff, to wit, that the note had been barred by the statute. This he has failed to do. A default must therefore be entered.

Shepley, C. J., and Howard and Cutting, J. J., concurred. Hathaway,. J., concurred in the result only.