37 N.J.L. 492 | N.J. | 1874
The opinion of the court was delivered by
On the 14th of February, 1872, a writ of attachment was issued out of the Circuit Court of the county of Morris, at the suit of Jerome L. Stout, against the properly of Amasa Leonard, upon an affidavit made by Stout, that Leonard was indebted to him in the sum of $4202.90, and that Leonard was not, to the knowledge or belief of the affiant, resident, at that time, in this state. On the 9th of March following, a rule to show cause why the writ should not be discharged, on the ground that, at the time of issuing the writ, Leonard was a resident of New Jersey, was granted by the judge holding that court. Under that rule, testimony was taken on both sides, and, after argument, the rule -was discharged. This adjudication was removed into the Supreme Court by certiorari, and at the November Term, 1873, was reversed. The judgment of the Supreme Court is before us on error.
It is proper to premise, before entering on the consideration of the question in the cause, that where a writ of error is brought to review a decision such as that which this case presents, one of mixed law and fact, the conclusions of the -court below on the facts must be plainly erroneous to induce -this court to disturb its judgment on that score.
The question presented for consideration is, whether Leonard, at the time when the writ was issued, was a resident -of this state, within the meaning of the attachment act. It appears, from his own testimony, that he was not then in this state, and had not been since the first day of February, which was thirteen days previous to the issuing of the attachment. He had a house in the city of New York, and a farm in the township of Mendham, in the county of Morris, in this state. He was living in the house in New York. His family there -consisted of his wife, his daughter’, an adopted daughter, and
From this statement it is apparent that he has, as many other persons have, two. places- of residence, one for the summer and the other for the winter,, both of which, he owns and maintains throughout the year.
That the defendant in this suit was not in this state when the writ was issued and served, is admitted. There could have been, therefore, no personal service of any process upon him. To have effected a service of a summons on him under the circumstances, it must have been by “ leaving a copy of it at his dwelling-house or usual place of abode at least six entire days before its return.” Practice Act, Nix. Dig. 724.
That would not be a liberal construction which would permit the various and difficult considerations which may enter into the question of domicil, to vex and foil the creditor in his honest pursuit of his remedy under the statute, in a case where his debtor is neither actually resident or commorant in this state, but has his usual place of abode beyond its borders.
The judgment of the Supreme Court should be reversed.
For reversal — The Chancellor, Chief Justice, Bedle, Depue, Van Syckel, Clement, Green, Lilly, Wales. 9.
For affirmance — None.