Pullen v. Monk

• Decision Date: 22 February 1890
• Citation: 19 A. 909,82 Me. 412
• Parties: PULLEN v. MONK.
• Court: Maine Supreme Court

19 A. 909

82 Me. 412

PULLEN

v. MONK.

Supreme Judicial Court of Maine.

Feb. 22, 1890.

(Official)

Agreed statement from supreme Judicial court, Piscataquis county.

J. F. Sprague, for plaintiff. E. Flint, for claimant.

PETERS, C. J. In this (trustee) action, the question is whether the funds, admitted to be in the trustees' hands, shall be held by the plaintiff's attachment, or go to the claimant by force of an assignment to him from the principal defendant.

The funds consist of an amount due the defendant as wages for working by the month, in the plantation of Elliotsville, with a steam-drill, under contractors who were constructing the Canadian Pacific Eailroad; the defendant working in that capacity continuously from the spring of 1887, for a year and more. His legal residence during that time was in the town of Monson, where his homestead and family were, but he lived all the time in camp in Elliotsville during the period of his working there, excepting that on most of the Sundays, not all of them, he visited his home in Monson, going there on Saturday afternoon and returning to Elliotsville on the afternoon of Sunday.

Process was served on the trustees, March 15, 1888. The written assignment from defendant to claimant is dated August 27, 1887, was recorded in the town records of Monson, August 29, 1887, and in Elliotsville, March 30, 1888.

The railroad workmen received their pay as made out on monthly roll-bills, and the trustees disclose $59.50 due the defendant on the February (1888) rolls, and $30.95 due on the March (1888) rolls up to March 15th.

It will be observed that the assignment to claimant was seasonably recorded to obtain priority over the attachment if Monson was the proper place, and too late for priority if Elliotsville was the proper place, for recording the assignment. The evidence establishes the fact that Elliotsville was an organized plantation.

The statute relied on by the plaintiff as governing the question (Rev. St. c. 111, § 6) reads as follows: "No assignment of wages is valid against any other person than the parties thereto, unless such assignment is recorded by the clerk of the city, town, or plantation organized for any purpose in which the assignor is commorant while earning such wages."

"Was the defendant, Lemuel Monk, commorant in Elliotsville while working there in February and March, 1888? We can see no escape from the conclusion that he was. It cannot be doubted that a man may be a resident in one place and commorant in another at the same time. The distinction is between a permanent and a temporary home. Ames v. Winsor, 19 Pick. 248. A commorancy may be all the residence a man has, but usually it is not. In Webster's dictionary, "commorancy" is defined as meaning, in American law, "residence temporarily, or for a short time." The term, from its deriivation from the Latin, implies something less than a regular residence; such as a staying, a sojourning, and, more literally, a tarrying. It was to express these minor degrees of residence that the word got in vogue in our jurisprudence, though not often used. Blackstone says in his commentaries (volume 4, p. 273) that all freeholders within the precinct of Court Leet, "as well as all persons commorant there, which commorancy consists in usually lying there," were obliged to attend the sessions of that court. We think the legislature used the term "commorant" in the sense of a temporary abiding place, to avoid the difficulty of ascertaining the legal residence of a great mass of laboring men, and because many of that class of people have no legal residence within ...