52 Vt. 204 | Vt. | 1879
The opinion of the court was delivered by
I. The plaintiff’s claim that there was error in the judgment of the County Court in discharging the trustees because it deprived him of the opportunity of a trial in regard to the residence of the trustees, is not well founded. The trustees, in their separate disclosures under oath, alleged that their residence was in New Hampshire, and not in Vermont, when served with process in suit, and ever since has been, and that they had no authorized agent in the State during that time. The plaintiff did not traverse these allegations nor take issue upon them, but instead thereof, through his attorney, and on his agreement to protect the trustees, obtained from one of them and filed in court a further disclosure, admitting an indebtedness from them as partners which arose from a contract made by them with the defendant for the purchase of some timber standing on land in this State, but with notice from the defendant given at the time of making the contract, that the land belonged to his children; stating that they went into camp on said land in November, 1875, and continued to live there in camp until the March following, and that they were willing to pay the money thus in their hands to the persons entitled to it; and asking that the claimants might be cited in. On being cited in the claimants moved that the trustees be discharged, because, from their disclosures, it appeared they were non-residents, and for that reason not amenable to the trustee process. The plaintiff went to a hearing on this motion without objection, so far as appears from the exceptions. He thereby submitted the case to the consideration and judgment of the court on what was in that behalf before it, to wit, the three sworn disclosures of the trustees. He cannot now be heard to allege error in the findings of the court that the facts stated in disclosures of the trustees in regard to their residence are true. That was the matter which he submitted to the determination of the court by voluntarily going to hearing on the motion, without asking to be allowed to produce
II. The facts found by the court establish that the trustees were, at the time of the service of the writ on them, and still are, non-residents. Their stay in this State was temporary, and only for the accomplishment of a single purpose — the removal of the timber. To the accomplishment of that purpose they came from their residence in New Hampshire. While accomplishing it their residence remained in that State, and to it they returned when the purpose of their temporary commorancy in this State was accomplished. The words, residence or resident, import more than a temporary stay in a place for the performance of a single piece or job of work, especially when the workman at the same time has a home, a permanent place of abode, in another place. It is difficult to define in precise language what constitutes a residence, or makes one a resident of a place. It depends upon the circumstances then surrounding the person, upon the character of the work to be performed, upon whether he has a family or a home in another place, and largely upon his present intention. Hence, it will hardly do to select out one from the meanings of the word given in Webster’s Dictionary, and hold that because the trustees fall within that one meaning, they therefore were residents of the State within the language of the statute. In the language of the law, residence has come to have a well-defined meaning, the home or place of abode of the individual. A logging camp has few abiding, homelike characteristics and qualities, especially as applicable to a person who is found to have a home or abode in another place. Hence, on the facts found, the trustees were and are non-residents.
III. The plaintiff claims that the County Court erred in allowing the claimants to move for the discharge of the trustees. He maintains that whether they were amenable to and- would answer the process served upon them, was personal to the trustees, and could not be taken advantage of by the claimants, who are ad
There was therefore no error in the judgment of the County Court discharging the trustees with costs, and that judgment is affirmed.