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Bucknam v. Thompson

Bucknam versus Thompson

Bucknam v. Thompson, 38 Me. 171 (1854)
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Court
Supreme Judicial Court of Maine · State Highest Courts
Decided
July 1, 1854
Judges
Appleton, Cutting, Rice, Tenney
Citations
38 Me. 171
Cited by 2
Headnotes
By B. S., c. 146, § 28, it is provided “if after any cause of action shall have accrued, and the person against whom it shall have accrued, shall be absent from, and reside without the State, the time of Ms absence shall not be taken as any part of the time limited for the commencement of the action.” A residence without the State, within the meaning of tMs section, has reference only to an established residence or Home. If a debtor, at the time a cause of action accrues against Mm, has a home in this State, it remains such, though he is absent for particular purposes, wMle he retains the intention to return.
Summary
On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit on two promissory notes. The general issue and statute of limitations were pleaded. The defendant was a sub-contractor on railroads, and after giving the notes went to Massachusetts and continued to reside there several months with his wife, and from thence he removed into the State of Vermont, and with his wife resided there many months. He lived at board while out of the State, and when his contracts were performed, he returned to this State. Before he left this State, he had a room in the house of his wife’s father furnished, where he kept house, and his wife continued to occupy that room and furniture a part of the time while her husband was in other States, and when absent that room was retained. The jury were instructed, that the phrase in the statute il and reside without the State” had reference to an established residence or home without the State; that the terms established residence and home, were used to communicate the same idea. What constituted a home was explained to> the jury. The verdict was for defendant and plaintiff excepted. 1. The only question under the statute, § 28 of c. 146, is one of absence and residence beyond the State. White v. Bailey, 3 Mass. 213; Dwight v. Clark, 7 Mass. 515. 2. If the debtor is absent from the State, has no residence here where a summons could be left, and resides out of the State, it is not material when, or in what manner, it comes within the meaning of the statute. 3. The term established means “ set” “ fixed firmly,” &c. The jury could not have found such a residence, and still the defendant might have such a residence as the statute contemplates.

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Opinion of the Court — Tenney

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Tenney, J.

— The jury were instructed, that the phrase “and reside without the State” had reference to an established residence or home without the State ;• that the terms established residence and home were used to communicate the same idea.

In order to suspend the operation of the statute of limitations, after the cause of action has accrued, and the statute has begun to run, the person, who sets it up in defence, must not only be absent from, but reside without the State, c. 146, § 28. This language is similar to that used in e. 32, § 1, under the 6th head, providing that any person of the age of twenty-one years who shall hereafter “ reside' in any town” within this State for the term of five years together, &c., shall thereby gain a settlement in such town.

The term “ reside in any town” has received the judicial construction of this Court and others, which fully sustains the instructions given to the jury. Green v. Windham, 13 Maine, 225; Wayne v. Green, 21 Maine, 357.

*173 It was obviously the intention of the Legislature to give to the creditor six full years and no more in which to bring his action for the recovery of a debt on simple contract, unless the evidence of debt be a witnessed note. And so long as the debtor has such a residence in the State as to make him subject to the jurisdiction of its Courts, the statute would continue to run.

If he had such a residence when the cause of action first accrued as constituted a home, it would remain such, notwithstanding his absences for special purposes and for periods which were definite as to time or purpose so long as there should remain the intention to return.

Judgment on the verdict.

Rice, Appleton and Cutting J. J., concurred.

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Cited by 2 cases

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1873–1874: 11983–1984: 118732026peak 1873 · 1

Relies on it most ⓘ

  1. Patten v. Milam468 A.2d 620 (Me. 1983)
  2. Venable v. Paulding19 Minn. 488 (1873)

Most recent

  1. Patten v. Milam468 A.2d 620 (Me. 1983)
  2. Venable v. Paulding19 Minn. 488 (1873)

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