Hackett v. Kendall , 23 Vt. 275 ( 1851 )

The opinion of the court was delivered by

Redfijeld, J.

The first question arising in the case is, whethér the defendant’s absence from the state, as stated in the bill of exceptions, was of such a character, as properly to be deducted in computing the time of the statute of limitations. We understand from the argument, although the date of the writ is not copied into the case furnished to the court, that if either absence of the defendant be deducted, it will be sufficient to remove the bar. It will therefore only be necessary to examine the latter; as, if this be not sufficient, the other must fail of course, and if this be allowed, it is sufficient.

It seems to us, that all, which it is important to determine, is, whether the defendant, at that time, left any domicil in this state. If not, he must be taken to “ be absent from’ and reside out of the state,” in the language of the statute. This question of domicil may possibly be viewed differently with reference to different subjects. But the consideration, which must have operated upon the legislature in so framing the statute in this case, seems to us to have been what is suggested by counsel, — whether the defendant’s domicil in this state was so broken up, that it would not have been competent to serve process upon him, by leaving a copy there. And for that purpose, it seems to us, there must be some place of abode, which his family or his effects exclusively maintain in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment. The merely scattering the remnants of his effects among his friends seems more like breaking up than keeping a domicil.

It is useless to speculate upon possible cases. It is obvious the latter absence of the defendant left no such domicil in this state. A somewhat similar rule has been adopted in regard to a residence to confer a settlement in this state during the actual absence of the person concerned, for all or a portion of the time. In Middletown v. Poultney, 2 Vt. 437, it is said, that one’s family, to continue his residence in his absence, for such purpose, “ must continue together, keeping house as a family.”

In regard to the plaintiff’s title to the note in this case, that is a question, which the defendant is only allowed to raise for the purpose of protecting himself from a subsequent suit in the name of some one having better title, and who has not acquiesced in 'the present suit. Beyond that the defendant is not allowed to contest the plaintiff’s title to sue.

In the present case nothing appears to make it at all probable, that the assignee will ever assert any control over this note. The settlement of Booth’s estate is no doubt closed in the district court, the bankrupt law is repealed, this note is of insignificant amount, and even if the saving in the repeal of the law would justify the assignee in instituting a new proceeding in that case, it is absurd, almost, to suppose it will be done.

But it may be said, the principle is as important, as if the debt were larger. It is more so, perhaps; for there is little else, which is important here. And it appearing, that the assignee had notice of this suit, before the judgment in the court below, he must now be esteemed as acquiescing in the farther progress of the suit, which he might at any time arrest, if not at law, certainly in equity, if the amount were sufficient. And even after this judgment is entered up, the assignee, if his title is good, — which I should not much doubt, — and he courts such an office, may now, as we think, control the collection of the execution; and if he do not interfere, until the money is paid over, he must “ forever hold his peace,” and the payment will protect the defendant. Judgment affirmed.