Ward v. Cole , 32 N.H. 452 ( 1855 )

Eastman, J.

The question presented by the state of facts found by the court below is this: Did the statute of limitations continue to run during the absence of the defendant’s intestate, in the manner set forth in the case ?

In Gilman v. Cutts, 3 Foster 376, it was held, that under the statute of limitations of this State, any and every absence from the State, whether temporary or otherwise, which is such that the creditor cannot, during the same, make legal service upon the debtor, must be reckoned in computing the time to be deducted from that between the maturity of the note and the commencement of the suit.

And again, when the same case was before the court, as reported in 7 Foster 348, where it,, appeared that the defendant hired a house in Exeter, in this State, which his wife occupied,' and he himself worked in Massachusetts, coming home Saturdays and returning Mondays through the summer season, and remained at home during the winter, it was held that the absence was not such that service could not be made upon him, and that therefore the time of his absence was not to be excluded in computing the six years.

Under these decisions, which have put a construction upon the statute of limitations of this State, the question whether the absence be such as to prevent the statute from running, is made to depend upon the fact whether a good service of process can be made upon the defendant during the alleged absence. A person may not, by his absence, lose his domicil in a State, and he may have it for the purpose of voting, and probably for other purposes, without having a usual place of abode, within the meaning of the statute, for the service of legal process. But while so absent no service can be made upon him, and the statute does not run ; and the time of the absence is to be deducted from the six years.

And such was the character of the absence in this case. The domicil of the defendant was not lost, but he and his family had left the State, expecting to be absent for three years, and during his absence he had no usual place of abode here. Personal service could not be made upon him, and no service, indeed, which could give the court jurisdiction to render a judgment against him personally. A summons left with his father-in-law could not reach him, and a judgment taken on such a service would be a judgment without service.

The position of the case is not changed by the fact that the defendant’s intestate at the time of his departure left property in this State. Under our former statute of limitations, a resi- . dence out of a State did not prevent the statute from running, if the defendant left property attachable in the State. N. H. Laws, 1830, p. 77. In the present statute the provision in regard to leaving property in the State is not embraced, so that residence out of the State prevents the statute from running, whether property be left or not. Rev. Stat., chap. 181, § 9.

Had the plaintiff seen fit to have attached the defendant’s real estate during his absence, and given notice by publication under the order of the court, he might thus have obtained a judgment against the defendant’s property. Comp. Stat., chap. 198, § 5. Or he might, perhaps, have caused a copy to be left with Cutler, and thus obtained judgment against the property. Comp. Stat., cbap. 194, § 5. But such an attachment and notice is not that service contemplated by the authorities. It must be personal, or such as to bring the notice home to the defendant. It must either be by arrest, or by delivering to the defendant in hand a summons, or leaving it at his “ usual” place of abode, as well as his “ last” place; where, under ordinary circumstances, he will receive it before court.

No such personal service could have been made upon the maker of this note during his voyage. His absence, though temporary, was such that service could not be made upon him ; and consequently the time of the absence should be deducted from the six years. That being done, the note was not barred by the statute, and

Judgment should be entered for the amount found due by the court below.