Hurlbut v. Seeley

I concur in the opinion of Mr. Justice Mitchell.

By the Couet.

The defendant’s property was attached on the ground of his being a non-resident of this State. The original affidavits were in general terms, alleging that the defendant had established himself in Wisconsin and became a resident there; and were prima facie sufficient. The defendant moved to set aside the attachment, and produced various affidavits to show that although he had gone to Wisconsin, it was only for a temporary purpose. It was understood on the argument that the real question was, whether the defendant had gone away on a single adventure, to dispose of certain goods, and remained with that single purpose, or had gone or remained there with the intention not only of selling what he took with him, but of establishing there a business which he himself should there superintend. He had a store at Hornellsville in this State and another in Wellsville, and owned real estate here, and had a home here where he and his wife and children lived. Business falling off very much, he concluded to close the store at Wellsville and to send his principal clerk with a portion of the goods from both stores, and some others to be purchased, to Hudson, Wisconsin, to dispose of them there, where sales, though at retail, were more ready, and for cash; and to retain his store at Hornellsville and remain there with his whole family. This was approved *146by his creditors, and, among others, by the plaintiffs. This plan he afterwards changed, so far, only, as that he should go in place of his clerk to Hudson. He left this State in September, 1853, intending to return in the spring. Spring came, and he found his sales not so ample as he had hoped, and he wrote that he would return in June. After that he wrote that he would without fail, and whatever the result might be, return about the first of July. Accordingly, on the 30th of June he was on his way, in pursuance of that intention, to this State. Both his lawyers, who are partners, his physician, his principal clerk, his foreman and two other clerks, and some acquaintances, with his mother and his wife, all concur that his original intention was that he should go to Hudson only to open and commence sales; and with the sole purpose of disposing of the goods and raising money to pay his debts ; and that if the business there should be deemed profitable enough to justify the establishment of a branch there, then that Farrell, his chief clerk, “ should go and take charge of such branch business, and continue it; and that the defendant himself should conduct the principal business at Hornellsville” in this State ; and that he never expressed nor did any of them understand that he ever formed a different conclusion, except his intention to remain until about the first of July.

All this shows as clearly as could be, a fixed design to go to Wisconsin only for the purpose of selling out the one adventure, and if a branch should be established there, to have it under the charge of a clerk, and not of the defendant; and for the defendant to return to this State. In opposition to this are produced the defendant’s letters, and the strongest expression there found against him is one, when speaking of his efforts to prevent loss to his creditors, he says, “ to avert the fulfilment of this picture, I have forsaken, for the time being, home, wife, children, and friends, and have commenced business upon the very outskirts of civilization.” This, without any explanation, might show that the defendant had gone there to establish business and to conduct it himself; but it is the only expression to that effect, and on its face it shows that his absence was to be only temporary, even if the business was to be permanent. For he limits the duration of his absence in saying, “ I have *147forsaken, for the time leing, home, wife, children and friends.” The concurrent affidavits of wife, mother, counsellors, clerks, physicians and acquaintances, are not to be overweighed bv that single expression; and they show that he was to be absent only to sell out the adventure which he took with him, or if he found the business there good, then to establish a branch there, and return home and leave the branch in charge of his clerk.

Then, as the special term found, he was still a resident of this State, and only temporarily absent for a single purpose, which, from its nature, would not Tieejp him away from the process of our courts.

The order at special term should be affirmed, without costs.

(dissented). — An attachment having been issued against the property of the defendant as a non-resident debtor, it was subsequently discharged by the judge on the ground that the defendant not only had been — which was admitted — but continued to be, which was denied — a resident of this State. From that order the plaintiffs appeal to the general term, and the question to be determined is, what, in these cases, constitutes non-residence.

The Code, in giving the remedy by attachment, where the party sued “ is not a resident of this State,” has furnished no specific definition of the sense in which it uses this much litigated form of expression. We are left, therefore, in determining its meaning, to the ordinary rules of interpretation.

Any person, it is well settled, may have his domicil in one place and his residence, for the time being, in another. Thus a citizen of New York may retain his dwelling in this city, with its furniture, undisturbed, in charge of his ordinary domestics, for a year or more, while he is educating his children in Switzerland, and occupying a hired house in Geneva for that purpose. In such case, New York, it is obvious, continues to be the place of his domicil; and it seems equally obvious that he becomes, notwithstanding, a temporary resident of the city of Geneva. But does it follow, say the defendant’s counsel, that in becoming a temporary resident of Geneva he be*148comes a non-resident, permanent or temporary, of New York? May not a man bave two residences at the same time, a permanent and a temporary one? He certainly may. In the case put of one of our citizens living in Geneva, if asked what was his place of residence, he would, no doubt, answer, using the term as synonymous with domicil — “ in New York.” This illustration, however, only shows that a man may have a residence in one place, and, at the same time, he a resident in another. And the statute does not say that a debtor’s property shall be attached if he has no residence in, but if, at the time, he is not a resident of this State. Of what consequence, looking to the object of the law, is it to the creditor that his debtor has a residence or a dozen residences in this State, if he himself remains for years, perhaps, out of its jurisdiction, residing actually and personally in Paris or Geneva? Wherein, so far as the creditor’s remedy for his debt is concerned, does such residing abroad differ in its effect from absconding or concealment? In either case, the reason for attaching the property arises from the impossibility of summoning the person.

But this reason, it may be said, would apply equally to the case of a débtor merely travelling abroad. The answer is, that on account of the- inconvenient restraint upon locomotion, which the allowance of an attachment in such cases would produce, the Legislature have in effect excepted travellers from the provision. A man, so far as this law is concerned, may travel without apprehension; but the moment he ceases to sustain the character of a traveller, and for purposes of education or business, takes up a fixed temporary abode, he becomes, for the time being, a resident abroad; and as a consequence, for the time being, in the eye of the law, a non-resident at home, and liable, as such non-resident, to have his property which he has left behind attached for the payment of his debts.

I see nothing unreasonable in this rule; on the contrary, while extending all due indulgence to the love of foreign travel, it shows no more than proper regard for the claims of domestic justice. Applied to the defendant’s case, the attachment clearly was rightfully granted.

He had left his family behind, it is true — but they could not be sued, and he had taken up a residence and opened and kept *149a store for nine months and upwards in a distant State. I think it pretty evident, moreover, that had his anticipations been realized, his family would ultimately have followed him to their new home. In one of his letters to his correspondents after visiting the West, he speaks of the place selected by him “ to open a store,” as a spot where he could “ build up a large and profitable trade.” In one of their letters to him, his correspondents inquire, what under the circumstances will be the effect of his “ movingshowing very clearly, the sense in which they understood his declarations. And he, in his reply, instead of correcting this impression, as he no doubt would have done, had he considered it erroneous, simply says, that he does not “ think his leaving here” — that is, leaving his original place of business, will have the effect of depreciating his existing property, as his friends suggested.

Five months afterwards, too, writing from the new “ place which he had chosen,” and in which he had, seemingly at least, established himself; after describing the probable consequences of a certain course of procedure, he observes : “Now, gentlemen, to avert the fulfilment of this picture, I have forsaken for the time being, home, wife, children and friends, and have commeneed business upon the very outskirts of civilization.” Surely, the place of which a man could thus write before going to it, and which he could thus characterize after months of actual occupancy, must at least be his temporary residence. And if so, is he not, while personally at it, and far away from his original domicil, properly termed for the time being, a non-resident of the latter — at least, within the true spirit and meaning of the law of attachment ?

If the inferences thus drawn from the defendant’s acts and correspondence, had been to any material extent erroneous, is it to be supposed that, anticipating as he no doubt did, their suggestion, he would have written to contradict them by his own affidavit? On a question of residence, where, although not conclusive, so much depends on the, perhaps, unrevealed intents of the mind, the unexplained absence of the party’s own affidavit, (he being permitted, if disposed, to be his own witness), is a strong negative circumstance, amply sufficient, as it *150seems to me, even were the facts otherwise doubtful, to turn the scale against him.

My conclusion, as well on principle as on authority, is, that the defendant at the time in question, was at least a temporary resident of Wisconsin, and not a resident of this State; and that the order vacating the attachment ought therefore to be reversed. See the cases cited in Voorhies Code, 203.