The case of Ogden v. Saunders, 12 Wheaton, 218, decides that a state has not the constitutional power to discharge its citizens by a bankrupt or insolvent law, from contracts made with them by citizens of other states. Judge Johnson, in giving the opinion of the court and commenting upon the authority of a state to pass bankrupt or insolvent laws, says that “ as between citizens of the same state, a discharge of a bankrupt is valid as it affects posterior contracts, as against citizens of other states it is invalid as to all contracts.”
This view of the case of Ogden v. Saunders was taken by this court in the cases of Norton v. Cook, 9 Conn., 314, and Anderson v. Wheeler, 25 Conn., 603, and by the courts of other states in the cases of Poe v. Duck, 5 Maryland, 1, Donnelly v. Corbett, 3 Selden, 500, and Whitney v. Whiting, 35 N. Hamp., 457.
The principle of the case of Ogden v. Saunders has been reaffirmed by the Supreme Court of the United States in the recent cases of Baldwin v. Hale, 1 Wallace 223, and Gilman v. Lockwood, 4 Wallace, 409, and may be regarded as permanently settled.
The discharge in this case was obtained in California, under the insolvent laws .of that state, by the defendant, who was a citizen of that state at the time the contract in question was made between him and the plaintiff in this suit, and continued to be till after the discharge in question was obtained.
The case finds that during all this time the plaintiff was a citizen of the state of New York, and never was a citizen of the state of California; that he was transiently there when the contract was made and when the judgment was obtained by him against the defendant, and then returned to the state of New York where his family resided, and was there during the time that the proceedings were pending for the discharge of the defendant in the state of California.
The defendant insists that the following facts found by the court render the condition of the plaintiff in California equivalent to that of a citizen and sufficient to make the discharge effectual, notwithstanding the finding that he was at the same time a citizen of the state of New York. These facts are found by the court as follows : “ That said Easterly went to the state of California on business in the year 1850, and resided there at intervals until the year 1854, and that he again went there on business in 1855, and resided there until the fall of 1858, but that he went there only for temporary purposes, and never intended to remove his domicil there or remain there permanently, but intended to return to the state of New York when the business was concluded; and that during the time he was there'he voted one or more times in the state.”
No doubt the length of time the plaintiff remained in California, and his exercise of the elective franchise while there, were important facts upon the question of citizenship, and unless controlled by other evidence of a superior character would have been sufficient to warrant the court, in finding that he was a citizen of that state. But the defendant claims that these facts constitute citizenship as matter of law, and we are referred to the case of Shelton v. Tiffen, 6 Howard, 163, as sustaining the claim. The court in that case say, “On a change of domicil from one state to another citizenship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is not conclusive on the subject; but acquiring a right of suffrage, accompanied by acts which show a permanent location unexplained, may be sufficient. The facts proved in this case authorize the conclusion that Shelton was a citizen of Louisiana within the act of Congress, so as to give jurisdiction to the Circuit Court.” The question in the case was whether the
The defendant further claims that there is a broad distinction between a casual presence in a state, and that continuous, voluntary abiding which constitutes a residence; and that, in respect to the latter, it is sufficient for the purposes of this case and will give efficacy to the discharge. The finding of the court is that the residence of the plaintiff in the state of California was temporary, and that during the time it continued his domicil and citizenship remained in another state.
A temporary residence does not change its character by lapse of time. Whether it is longer or shorter it is temporary still. It possesses no elements of a superior state which time will mature. We see nothing in this claim of the defendant.
The defendant further insists that if the plaintiff had an extra-territorial constitutional immunity in respect to his original claim, he abandoned and lost it by voluntarily going into the courts of California and recovering judgment upon the claim. In support of this position he refers us to the case of Davidson v. Smith, decided in the United States District Court for the state of Wisconsin, and reported in 9 American Law Register, 223. It is true that this case is in point, and the decision directly in favor of the defendant. But it should be observed that the judge in giving his opinion relies very much upon the case of Parkinson v. Scoville, 19 Wend.,
We advise the Superior Court to render judgment for the plaintiff.
In this opinion the other judges concurred.