Brown v. Ashbough

40 How. Pr. 260 | N.Y. Sup. Ct. | 1870

Marvin, J.

The substance of the statement made by the defendant in his affidavit is, that on the 24th day of September, 1870, he left the city of Hamilton, Canada, and on the 26th came to the state of Hew York, with the intention of taking up his residence thereinj that he arrived on that day in the city of Lockport, where he remained over night and a portion of the next day, and then went to Tonowanda and transacted some business, and remained there until October 3d, when he came to the city of Buffalo, with the intention, in good faith, to reside there permanently | that he left Hamilton with the intention of not returning thereto, but in good faith of taking, up his permanent residence in the city of Buffalo. He spoke of Ms brothers visit to him in Lockport, and his endeavors to persuade Mm to return to Hamilton, and his refusal to do so, and his declarations to his brother of his intention not to return,, but to take up his residence in Buffalo § Ms brother visited him in Buffalo, October 3d, and a like interview was had with the like result, and that he stated to Ms brother his intention of having his wife 'and household goods removed to Buffalo, and he requested his brother to take steps to effect this °, that October 3d, he took up his resiidence permanently in Buffalo, and ever since has resided in Buffalo, That just prior to his arrest he wrote to his wife that he had taken up his residence in Buffalo, and requested her to come to him; he was then endeavoring to rent a house in Buffalo for himself and family, and that his wife would have come to Buffalo to reside with Mm, within a day or two, if he had not been arrested. (The arrest was in this action upon the alleged ground of fraud in contracting the debts.) That at these times, he did not anticipate the the commencement of any action against him. His brother, Boderick, made an affidavit confirming the statement of the defendant, as to the conversations between them at Lock-port and in Buffalo. That the wife and family of the defendant, at the time of the' arrest, were intending to move to Buffalo, and would have done so, but for the arrest, the day after such arrest.

The affidavits read in opposition to the motion, show that the defendant and his wife, and her father, were British subjects and resided for a long time in Hamilton, where the defendant was doing business, and. where he had, with his family, a fixed residence$ that his family remained until after the commencement of this action ; that the defendant was insolvent, and that his effects in Hamilton are being administered under the insolvent laws there in force. That he left Hamilton the 24th day of September, for the United States, and a strong belief is expressed, that when the defendant went to the United States, he went there to see whether he could find a place to establish himself in business, and not with the intention of fixing his abode at any particular place, but with the view and intention of going about and searching from place to place, to see if he could discover any convenient place of residence.

This was an action, as appeared from the affidavit presented to the officer, in which an attachment was proper. It arose on contract for the recovery of money, and an attachment was proper “ against a defendant who was not a resident of this state.” If the defendant was at the time, a resident of the state, then the attachment was unauthorized.

The defendant’s residence and domicil were certainly in Hamilton, Canada, on the 24th day of September, 1870, and they had, for a long time, been there. The defendant was born in Canada and was a British subject. One of the rules (the 16th) stated by Story (Conf. of Laws, 47), is that a domicil once acquired, remains until a new one is acquired. The instant the new one is acquired the pre= vious domicil ceases. It is a rule that every person has a domicil somewhere, and he can have but one at the same time, for one and the same purpose (5 Pick., 589). Residence is defined in Burrill's L. D., to be u one who has a seat or settlement in a place,- one who dwells, abides, or lives in a place, an inhabitant, one who resides or dwells in a place for some time,” &c. Bouvier’s L. D. iE Domicil is the place where a person has fixed his ordinary dwelling, without a present intention of removal.” To constitute a domicil two circumstances must unite, viz.; actual residence and an intention to remain. Bouvier defines u residence ” the place of one?s domicil.

Chancellor Walworth in Matter of Wrigley (8 Wend., 140), says inhabitancy and residence mean a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere temporary locality of existence.

By Story’s 7th Rule, 45, if a man removes to another place, with an intention to make it his permanent residence, it becomes instantaneously his place of domicil.

The original domicil is not gone, until a new one has been actually acquired.

In this case I have no doubt the defendant left Canada (some of the affidavits say absconded), with a fixed intention not to return. He had been in business in Hamilton, something more than two years. He was insolvent. He says sold all his stock in trade. I also think he, at the time, intended to fix his residence in this state, he says in Buffalo. The abandoning of one?s residence, even with the intention of not returning, is not ordinarily enough to destroy the domicil. Another domicil or residence must be acquired. Indeed under our statute the attachment goes against any one “who is hot a resident of this state.” My difficulty is in deciding whether the defendant had, on the 11th day of October, became a resident of the state. I have, with some hesitation, come to the conclusion, that the defendant had become a resident of the state. His intention to abandon his residence in Canada, is clear, and it is, I think, equally clear that he intended to establish a residence in this state. The question is had he done so. Was his residence in Buffalo actually established, so as to satisfy the rule of actuad residence and intention to remain. He had been living, stopping in Buffalo from October 3d to October 11th. He had avowed his settled purpose to remain there, he had been making effbrts to procure a residence for his family, and a place for business—he had made some arrangements for the removal of his family from Hamilton to Buffalo. He had furnished no evidence, by conversations or otherwise, of his intention to leave Buffalo for some other place, or of any doubt about his remaining in Buffalo. It will be seen on examining some of the cases (above referred to and others), that the question was whether the residence, in a particular place, had been established; whether Buffalo, for instance, in the language of Chancellor Walworth, had become “ a fixed and permanent abode or dwelling place for the time being” of the defendant, as contra-distinguished from a mere temporary locality of existence.' Upon this question, Frost agt. Brisbin, 19 Wend., 11; Burrows agt. Miller, 4 How., 349; Lee agt. Stanley, 9 How., 272, may be consulted; See, also 10 How., 272; Hurlbert agt. Seeley, 11 How., 507. Tn some of the affidavits read in opposition to the motion the affiants express the belief that the defendant went to the United States to see whether he could find'a place to establish himself in business, and not with the intention of fixing his abode at any particular place, but with the- view and intention of going about and searching from place to place, to see if he could discover any convenlent place of residence. Ho facts are stated in support of .this theory; and none appear in the case. As a question of fact; I think I must hold that the defendant had become a resident of Buffalo; and that his residence in Hamilton had ceased. It follows that the attachment must be set aside.