Risewick v. Davis

| Md. | Dec 3, 1862

.Bowie, 0. J.,

delivered the opinion of this Court:

Our jurists differ in tlieir views of the policy of the process by attachment. In the earlier decisions, it is said to be only a process to compel the appearance of the defendant, not derogatory to, but rather in mitigation of, the severity of the common Jaw process of attachment, and distress infinite and outlawry, which was attended with forfeiture of goods. Vide Barney vs. Patterson, 6 H. & J., 182.

In the more recent opinions, it is declared, the design of these laws is to protect our own citizens from summary proceedings, as well as to give them and the citizens of the United States a remedy against debtors residing out of the reach of the process of the Court. 3 Gill, 241. Ibid., 326.

It is admitted, on all hands, to be a special, limited jurisdiction, distinct from and not embraced by its general jurisdiction, conferred by Acts of Assembly on the Court, where its power to act must appear upon the face of the proceedings, or be proved at the trial. 1 Gill, 381, Boarman vs. Israel & Patterson.

This Court, in Barr vs. Perry, 3 Gill, 326, quoting with approbation from 1 Green., 134, say: “The great purposes of the Act arc, by seizing the property of a debtor, to compel his appearance to answer the demand of the plaintiff, when, from non-residence or flight, he is beyond the process of our judicial tribunals, and on failure of appearance, to apply such property to the just end of satisfying his debts. An attachment is an extraordinary, not an ordinary writ. To use it when the debtor is within the reach of ordinary process, is wholly inconsistent with the spirit and design of this mode of procedure.”

In some other cases, the Acts directing the manner of suing out attachments and limiting the extent of them, have received a strict construction, as in Shivers vs. Wilson, 5 H. & J., 130; Yerby vs. Lackland, 6 H. & J., 466, 497; where the right to an attachment was held to bo confined to citizens of this State, or some one of the United States, in contra-distinction to citizens of the Territories or District of Columbia and of the United States. Citizenship, in these cases, was considered a jurisdictional fact, necessary to be averred and to be proved on the part of the plaintiff. In deference to these decisions, Acts of Assembly were passed, from time to time, to enlarge the jurisdiction and extend the right, until it is made common to all persons, natural or artificial, who can sue in our Courts. Vide 1825, ch. 14; 1834, ch. T9; 1854, ch. 153.

The classes of persons against whom this right of attachment existed, continued up to 1854, ch. 153, (and at the date of the attachment in this cause,) to be regulated by the Acts of 1T15, ch. 40, and 1T95, ch. 56.

The attachment upon warrant, under the Act of 1T95, ch. 56, cannot lawfully issue without an affidavit that the debtor “was not a citizen of the State, and not residing therein,” or that, being a citizen, “he is actually runaway, absconding, or removed from his place of abode,” &c. 1 Gill, 372. 3 Gill, 318, Barr vs. Perry. If it does not contain this averment, it is substantially defective, and the judgment of condemnation, upon appeal, will be reversed, and the attachment quashed. “To warrant the proceeding, the non-residence of the debtor is as essential as his indebtedness. It was because he was alleged to be a nonresident, that the defendant in error was enabled to obtain the attachment. If, then, it be true, as the garnishee alleges, that the debtor was a citizen of this State, and residing therein when the attachment was issued, then the proceeding was ‘in fraudem legis. ’ ” * * * “Unless the Court can superintend and control the writ by keeping it within the design and intent of the Act, it becomes an en - gine of great oppression and abuse.” 3 Gill, 318.

In 6 H. & J., 199, it was decided, attachments under the Act of 1750, ch. 40, would lie against foreigners, whether they have been residents of the State or not. It was admitted the Act is silent as to foreigners “eo nomine,” but it was held to be prohibitory only as respects residents ; and in tire absence of such provision, contemporaneous construction had settled the practice so as to command respect, whatever would be the interpretation, if it was a “vexata gueslio.” Barney vs. Patterson, 6 H. & J., 199.

The word ‘‘citizen’ ’ has various meanings, viz: “A native of a city, an inhabitant who enjoys the freedom and privileges of the city in which ho resides, an inhabitant, a dwel - ler in any city, town or place; a person, native or natural - ized, who enjoys the privilege of exercising the elective franchise, or lidding real estate.” Webster’s Dict’y, word citizen. In which of these senses the word was used in the Act of 1795, ch. 58, does not appear from the cases above referred to. If the object of the law was, as some of the earlier cases indicate, an amelioration of the common lav-process, or the protection of our own citizens from summary process, as well as to give them a remedy against debtors residing out of the process of the Court, as others declare, the largest interpretation of the word would be most consonant to reason anxl justice, “vM eadem esl ratio eadem esl lex;” hence citizen would he synonymous with “inhabitant or permanent resident” in a city or county, as all such are alike entitled to the most enlarged remedial process, and protection from summary proceedings, equally, with native or adopted citizens, enjoying the elective franchise, and the right of purchasing and holding real estate. This construction does not conflict with the provisions of 1715, ch. 40, hut gives a cumulative remedy, adapted to the oxigencios of trade and commerce, which would be otherwise much embarrassed by the delays of the law.

Who is a citizen, in the purview of these Acts, is a mixed question of law and fact, to be found by the jury, under the direction of the Court, (Union Bank vs. Kerr, 1 Md. Rep., 88,) and does not appear to have been decided in any of the case's preceding' that of Field vs. Adreon, I Md. Rep., 209. It does not appear from the report of that case that the case of 6 H. & J., 191, was referred to. It was assumed, in the argument, that the Acts relating to attachments gave no right of attachment against a resident absconding, but only against a citizen absconding, and drawing from this assumption the deduction that if there was any right of attachment as against a resident absconding, it was only to be exercised against him as a non-resident of the State, for the reason that, “eo instanti,” a resident who is not a citizen absconds, he becomes a non-resident. Responding to this argument, the Court said: “This view of the subject might be unanswerable, if the attachment laws contemplated that a debtor should leave the State before he could be said to have absconded. But this argument is a ‘non seqwitur.’ A party may abscond, and subject himself to the operation of the attachment laws against absconding debtors, and still not depart from the limits of the State. In such a case, the party could not be said to be a non-resident of the State, and therefore could not be proceeded against by attachment, as such; and unless, under such circumstances, he could be treated as an absconding citizen, his case would not be covered by the attachment laws at all.”

“Kennedy, the defendant in this case, it appears, was an unnaturalized Irishman, residing and doing business in Baltimore at the time he absconded, and the question for us to determine, is whether these circumstances are sufficient to constitute him a citizen in contemplation of our attachment laws, inasmuch as we have shown that he could not be proceeded against as a non-resident debtor. It certainly never could have been the intention of our Legislature to Lave made snob an invidious distinction in favor of foreign citizens residing in our State, over our own resident citizens, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be bold subject to all the penalties of the attachment laws, against debtors absconding to evade their creditors. We are of the opinion, that as the debtor was residing and doing business in Baltimore, he was, in contemplation of our attachment laws, a citizen of this Stole, and as such, having actually run away to avoid his creditors, was liable to be proceeded against as an absconding debtor. We do not wish to be understood as declaring that the debtor in this case was a citizen for every purpose and in every sense. A party may not be a citizen for political purposes, and yet be a citizen for commercial or business purposes.”

If “residing and doing business in the State,” constituted the defendant in that case, at the time he absconded, a citizen in contemplation of our attachment laws, not residing and not doing business in the State at the time of issuing the attachment in this, would necessarily bring the defendant within the opposite class of persons described in section 1, 1195, ch. 56, “as persons not being citizens of this State,” &c., as well as within the spirit and scope of the law, and therefore liable to attachment on warrant. The case of Adreon vs. Field, like the case at bar, was instituted before and decided independently of, although subsequently to, the Act of 1854, ch. 153. That Act has boon referred to as operating on this case. The enacting clause declares: “Every person who doth not reside in this State, and every person who absconds, may be made a defendant in an attachment;” adopting the more enlarged view of the process of attachment announced in the last decision. The repealing clause, which rescinds so much of tlic Act of 1195, cli. 56, as relates to citizenship, (it was supposed,) gave immediate effect to the Act. This, as well as the enacting clause, is controlled by the 31st sec. of Art. 3 of the Constitution, which declares: ‘ No law passed by the General Assembly shall take effect until the first of June next after the session at which it may have passed, unless it be otherwise expressly declared there being no express declaration in the Act when it should take effect, its operation ivas suspended until the 1st of June 1854, some twenty days after the attachment in this case was sued out, and did not affect pending cases. With this preliminary view of the law, we will proceed to examine the several exceptions.

The appellant’s first exception is to the admissibility of the declarations of the defendant, Eorwood. Without expressing any opinion uj)on the question of res gestee argued at the bar, we are of opinion that this evidence was inadmissible on other grounds. These declarations were offered to show an “ammus revertendi” in the defendant, at some indefinite period, which, according to the judicial interpretation affixed to the term “citizen” in the case above cited, could not affect the issue in this case, and they were therefore incompetent testimony. They were also offered to show that the defendant had not abandoned his home or domicil in Maryland. Under the ruling in Adreon vs. Field,, the issue involved the actual, not constructive, residence or non-residence of the defendant, the “residing and doing business in the State.”

Residence and domicil are sometimes distinct things. In the matter of Thompson, 1 Wend., 43, it was decided that residence out of the State, for the purpose of being subject to foreign attachment, did not import that domicil should be out of the State also. 19 Wend., 14, Frost vs. Bresbin. In Haggart vs. Morgan, 1 Sel., 428, the defendant offered to prove that, at the time of taking out the attachment, he was not a non-resident, but a resident of the city of New York, that ho had been absent about three years, attending a law-suit at New Orleans, and returned in the Spring of 1848; the judge excluded the evidence, on the ground that the offer itself showed the debtor to he a non-resident, within the spirit of the Act. In the case at bar, the defendant had been absent four or live years, and non constat, but he might be absent as many years longer. The evidence being foreign to the issue, should have been excluded.

The 2nd and 3rd exceptions involve virtually the same questions. The appellee prayed the Court to instruct the jury, “That if they believe, from the evidence, that the said Forwood (the defendant debtor) had his home in Maryland, and left the State for temporary purposes, hut with an intention to return to it, that such a change of place was not, of itself, in law, a change of domicil,” which being granted, the appellant excepted, and then offered a counter instruction, negativing and qualifying the instruction granted by the Court, which being refused, he likewise excepted.

These exceptions present the same points considered upon the exception to the evidence, and turn entirely upon the matters previously discussed.

As an abstract legal proposition, upon an issue of domicil, the appellee’s instruction was undoubtedly proper. Absence from one’s domicil for a temporary purpose, attended with an “animus revertendi,” will not amount to a chango of domicil. Grier vs. O’Daniel, 1 Amer. Lead. Cases, 747.

The subject of inquiry, however, being “commercial citizenship,” residing and doing business in the State, the instruction granted liad a tendency to mislead the jury, if granted without qualification ; and being so granted, and the counter instruction being refused, we think the Court below erred on both exceptions, and the judgment should' be reversed and procedendo awarded.

(Decided December 3rd, 1862.)

Judgment reversad and procedendo awarded.