Hurlbut v. Seeley — 2 Abb. Pr. 138

Majority

p. 138

HURLBUT a. SEELEY.

Supreme Court, First District; General Term,

October, 1855.

Headnote

Attachment. — What constitutes Non-Residence.

Where defendant left the State of New-York, and remained in Hudson, Wisconsin, nearly a year, and established himself in business there, but intended, even should it prove successful, to leave it in the care and management of a clerk, and return to his residence in this State — Held, that he was not a non-resident by reason of this absence. An order at Special Term vacating an attachment which had been obtained against him, was affirmed.

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Appeal from an order made at Special Term, vacating an order of attachment.

This was an action brought by William W. Hurlbut, Joseph A.Sweetser,Philip Yan Tolkenburgh and William B. Leonard, against Isaac D. Seeley, on certain promissory notes, given for goods sold and delivered.

On the 29th of June, 1855, a warrant of attachment was issued in the action by Mr. Justice Roosevelt, of the Supreme Court, directed to the sheriff of the county of Steuben, which recited that the plaintiffs had applied for an attachment against the property of said defendant; that it appeared by affidavits, that a cause of action existed against him ; that he was “ not a resident of this State,” but resided at Hudson, in the county of St. Croix, in the State of Wisconsin, &c. The command of said attachment was to attach so much of the property of said defendant as might be sufficient to satisfy the plaintiff’s demand, $13,968.79.

The application for the warrant was on the ground of the non-residence of the defendant. This was shown by affidavits, stating in general terms that the defendant left the State of New-York in September, 1854, and established himself in business, as a merchant, in the town of Hudson, St. Croix county, Wisconsin, and that ever since the month of September, 1854, he continued to reside, and at the time of the application did reside in the town of Hudson, Wisconsin. Also, that the defendant was not a resident of New-York State, but was a resident of the town of Hudson, Wisconsin.

Under this attachment, property was attached by the sheriff to the amount of $9,877.57.

On the 23d of July, the defendant obtained an order requiring the plaintiffs to show cause why the attachment should not be set aside, &c.

This order to show cause was supported by a number of affidavits of friends, relatives, and business connections of the defendant, tending to show that the defendant had never intended anything more than a temporary absence from the State for business purposes, and that he had always intended to retain his residence within this State, and to return hither,

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as soon as tbe business which took him away should be completed. There was no affidavit by the defendant. The affidavit of Irene Seeley and Frances Chase, which, with the omission of a few sentences not important in this connection, was as follows; states very fully the facts relied upon to show that the defendant had never forsaken his residence within the State.

Steuben County, ss.

IbeNE A. Seeley, the wife, and FRANCES Chase, the mother of the defendant, Isaac D. Seeley, being severally duly sworn, say, and each for, herself says, that they are respectively the wife and mother of the said defendant, and reside with him and in his family, at Iiornelisville, in the county of Steuben, and State of New York, and did so then and there reside during the summer and fall of 1854. And deponents further say, that the said defendant removed to Ilornells-ville, aforesaid, in the year 1850, and settled there and went into business as his permanent residence, and purchased a house and lot and store in that place, and to the best of the knowledge and belief of deponents, has never since intended to change his domicil or residence.

And deponents further say, and each for herself says, that in the fall of 1854, or rather in the latter part of August, or fore part of September, that year, the said defendant having stated to them through the summer, that his business and receipts had fallen off, and that from the failure of crops it would be dull for another year, and that his liabilities were maturing, and he would not be able from the receipts of his business as he was then doing it to meet them ; the defendant proposed closing up his branch store at Wellsville, taking more goods, a portion of the heavy stock at Iiornelisville, with some new goods, to make an assortment, and sending Charles J. Farrell, his chief clerk, West with them, to dispose of by spring, and raise money to meet his debts; and that when he had raised funds suffi-ciet to relieve him from embarrassment, close up all his branch concerns, and do no business any where except at ITornells-ville, unless in disposing of such stock of goods West, a location should be found where he was confident a money-making business could be clone, in which case, if he was in circumstances to do it, he would continue a branch store there in the

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charge of said Farrell, and he himself continue manufacturing clothing in Hornellsville, and his other business there. That the subject was talked of in the family and with defendant’s friends a long time, and as deponent understood from defendant, he wrote to, and advised with Hurlbut, Sweetser & Co., his heaviest creditors, and they assented thereto. That finally the defendant concluded that he would judge better as to locating and disposing of the goods West than Mr. Farrell, and that said Farrell could perhaps do better in collecting, and as well in the business otherwise as the defendant could.

That he, defendant, should only remain away from his family until spring, when he would return and remain with his family at Hornellsville, and attend to his business there; and if circumstances were such that the business West had better be continued after that time, said Farrell would then go West and take charge of it. And deponents further say, and each for herself says, that there never was any talk, conversation, ■or intention to change the defendant’s residence, or of his family leaving Hornellsville, nor of the said defendant leaving, except until the next spring, and that solely for the purpose hereinbefore stated. That it was the express intention of said Seeley and his family to remain and continue to reside in Hor-nellsville aforesaid, and to continue his business there, and that said defendant absented himself from his residence and family with reluctance, solely because he supposed by such temporary absence he would raise funds to meet his debts, and release himself from embarrassment. That he left his business going on at Hornellsville as usual — his family residing together, except such children as were absent (in this State) at school — and his social and domestic relations unchanged, and with the bona fide intention of returning to, and remaining with his family at Hornellsville, in the spring of 1855. That as the time for his return approached, his family expected his return until a letter was received by them, stating that he had not succeeded in raising sufficient funds to meet his engagements, and that in hopes of doing so, he should be compelled to remain absent a short time longer. That as soon as possible he should return home and remain with his family; that letters of this tenor were received from time to time, until the time for his return

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wrs definitely fixed for the first of July, and that on the morning of the 4th day of July, said defendant did come home at Hornellsville, aforesaid. That finding his store closed, by virtue of the attachment in this suit, he went to New York to try to make some arrangement about the matter, and failing to do so, he returned, and stating that he was informed or believed, that the plaintiffs in this action had sent West to seize his property there, he soon again started West to see to that business, and see what would be done, and is now absent. That deponents expect him to return, as soon as business will permit him to do so. And, that but for these proceedings, and the report that the plaintiffs had sent West to seize the remainder of the goods, then the said defendant would at this time have been at home with his family.

Jurat. FRANCES Chase,

Irene A. Seeley.

To rebut the affidavits read on behalf of the defendant, which were to the above effect, the plaintiffs’ counsel read the affidavit of each of the plaintiffs, denying that there was any arrangement or understanding between themselves and the defendant that the defendant should go to Wisconsin, or that they had any information from him that his absence was to be merely temporary. They also produced letters which had passed between themselves and the defendant, upon which they relied to show that the defendant contemplated a residence in Wisconsin. The most important portion of this correspondence, so far as this point is concerned, was the following extract from a letter from the defendant to the plaintiffs, dated Hudson, December 30th, 1854:

“ * * * Now, gentlemen, I do not believe it would be best for my business to be closed now; what will be the result if it is? Why, gentlemen, the result is obvious; the property will be sold off at forced sales for half its value, and one-half of this amount is swept away by the attendant expenses ; and when the matter is finally closed up, the creditors receive only a very small amount; a heavy debt is still resting on my shoulders, which I should never be able to pay; my family destitute, and perhaps my name coupled with dishonor.

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Now, gentlemen, to avert the fulfilment of this picture, I have forsaken for the time being, home, wife, children and friends, and have commenced business upon the very outskirts of civilization. And, gentlemen, the main object by which I was actuated was, that I might be the better enabled to pay my honest debts, that none should lose anything by me. * *

Upon the whole evidence Mr. Justice Clerke made an order, on the 10th August, 1855, setting aside the attachment. This was done on the ground that the defendant was a resident of this State at the time of issuing the attachment; and that it was therefore irregular.

The plaintiffs appealed from this order.

John Livingston and S. Beardsley for appellants.

I. If the defendant “ was not a resident of this State” when the attachment was issued, it was regular. {Code of 1851, §§ 227, 229).

II. It is not denied that the defendant’s domicil, when the attachment issued, was in this State, but he was not then a resident here; his residence was at Hudson, in Wisconsin. Both the courts and the lexicographers make a distinction between the term domicil and residence. Webster defines the word domicil to be “ a place of permanent residence either of an individual or family — a residence animo manendi.” Re sidence, he says, is “ the act of abiding or dwelling in a place for some continuance of time, as the residence of an American in France or Italy for a year.” He also says, reside is “ to have a settled abode for a time. When the word is applied to strangers or travellers, we do not say a man resides in an inn for a night, but he resided in London or Oxford a month or a year. A man lodges, stays, remains, abides for a day or very short time ; but reside implies a longer time, though not definite.” He defines the adjective non-resident, “not residing in a particular place, on one’s own estate, or in one’s proper place, as a non-resident clergyman or proprietor of lands.” The noun non-resident, he says, means “ one who does not reside on his own lands, or in the place where official duties require.” (Matter of Thompson, 1 Wend. 43 ).

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Section 229 of the Code, under which the plaintiffs’ attachment issues, authorizes it “ when the defendant is either a foreign corporation, or not a resident of this State, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with a like intent.”

It is intended to give a remedy to creditors whose debtors cannot be served with process. If the debtor absconds or conceals himself with intent to defraud his creditors, or to avoid the service of a summons, then attachment issues; and if he notoriously resides abroad, then it issues; but if he goes openly to another State and remains there, doing business but intending to return when his convenience will permit, his counsel contends he is not a non-resident debtor, and his property cannot be touched. lie may become bankrupt abroad, and the creditor here may stand by and acknowledge and regret the insufficiency of our laws, but the property cannot be touched. ’The legislature never intended such a state of things. If they did so intend, then a debtor by residing abroad, without declaring an intention to remain, might prevent his creditors from ever collecting their debts. The reason why this remedy is given against the property of debtors resident abroad is equally applicable whether the debtor is absent permanently or temporarily. No length of residence, without the intention of remaining, constitutes domicil.

If it is said that the plaintiffs could have reached the property by execution ; we reply, such is not the fact, for the defendant being without the State, was not liable to an injunction order and the other coercive measures known to the laws of this State for the collection of debts ; and before the judgment could have been obtained, the property would have been transferred beyond the reach of an execution.

Section 100 of the Code provides that if, after a cause of action shall have accrued, the debtor shall depart from and reside out of the State, the time of his absence shall not be deemed any part of the time limited for the commencement of actions. And under it, the Superior Court in Ford vs. Babcock., (2 Sand., 519), held, that during each successive absence, he must be deemed a non-resident, and that such

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absences may be accumulated and deducted from the time of limitation; thus construing an absence for a short period to be a residence abroad.

In Frost v. Brisbin, ( 19 Wend. 11 ), the court held that a person having his domicil here, who carries on business out of this State, and personally superintends the same, is not a resident of this State, and that the domicil of a party may be in one State, and his actual residence in another. (See also Roosevelt v. Kellogg, 20 Johns. 210 ; Matter of Wrigley, 8 Wend. 130 ; Bartlett v. City of New York, 5 Sand. 47; Iiag-gart v. Morgan, 1 Seld. 423).

A. J. Perry and W. M. Evarts for respondents,

cited Crawford v. Wilson (4 Bari. 504) and Lee v. Stanley, (9 How. Ps. 272).

By the Couet.

The defendant’s property was attached on the ground of his being a non-resident of this State. The original affidavits were in general terms, alleging that the defendant had established himself in Wisconsin and became a resident there; and were prima facie sufficient. The defendant moved to set aside the attachment, and produced various affidavits to show that although he had gone to Wisconsin, it was only for a temporary purpose. It was understood on the argument that the real question was, whether the defendant had gone away on a single adventure, to dispose of certain goods, and remained with that single purpose, or had gone or remained there with the intention not only of selling what he took with him, but of establishing there a business which he himself should there superintend. He had a store at Hornellsville in this State and another in Wellsville, and owned real estate here, and had a home here where he and his wife and children lived. Business falling off very much, he concluded to close the store at Wellsville and to send his principal clerk with a portion of the goods from both stores, and some others to be purchased, to Hudson, Wisconsin, to dispose of them there, where sales, though at retail, were more ready, and for cash; and to retain his store at Hornellsville and remain there with his whole family. This was approved

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by his creditors, and, among others, by the plaintiffs. This plan he afterwards changed, so far, only, as that he should go in place of his clerk to Hudson. He left this State in September, 1853, intending to return in the spring. Spring came, and he found his sales not so ample as he had hoped, and he wrote that he would return in June. After that he wrote that he would without fail, and whatever the result might be, return about the first of July. Accordingly, on the 30th of June he was on his way, in pursuance of that intention, to this State. Both his lawyers, who are partners, his physician, his principal clerk, his foreman and two other clerks, and some acquaintances, with his mother and his wife, all concur that his original intention was that he should go to Hudson only to open and commence sales; and with the sole purpose of disposing of the goods and raising money to pay his debts ; and that if the business there should be deemed profitable enough to justify the establishment of a branch there, then that Farrell, his chief clerk, “ should go and take charge of such branch business, and continue it; and that the defendant himself should conduct the principal business at Hornellsville” in this State ; and that he never expressed nor did any of them understand that he ever formed a different conclusion, except his intention to remain until about the first of July.

All this shows as clearly as could be, a fixed design to go to Wisconsin only for the purpose of selling out the one adventure, and if a branch should be established there, to have it under the charge of a clerk, and not of the defendant; and for the defendant to return to this State. In opposition to this are produced the defendant’s letters, and the strongest expression there found against him is one, when speaking of his efforts to prevent loss to his creditors, he says, “ to avert the fulfilment of this picture, I have forsaken, for the time being, home, wife, children, and friends, and have commenced business upon the very outskirts of civilization.” This, without any explanation, might show that the defendant had gone there to establish business and to conduct it himself; but it is the only expression to that effect, and on its face it shows that his absence was to be only temporary, even if the business was to be permanent. For he limits the duration of his absence in saying, “ I have

Concurrence

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forsaken, for the time leing, home, wife, children and friends.” The concurrent affidavits of wife, mother, counsellors, clerks, physicians and acquaintances, are not to be overweighed bv that single expression; and they show that he was to be absent only to sell out the adventure which he took with him, or if he found the business there good, then to establish a branch there, and return home and leave the branch in charge of his clerk.

Then, as the special term found, he was still a resident of this State, and only temporarily absent for a single purpose, which, from its nature, would not Tieejp him away from the process of our courts.

The order at special term should be affirmed, without costs.

I concur in the opinion of Mr. Justice Mitchell.

(dissented). — An attachment having been issued against the property of the defendant as a non-resident debtor, it was subsequently discharged by the judge on the ground that the defendant not only had been — which was admitted — but continued to be, which was denied — a resident of this State. From that order the plaintiffs appeal to the general term, and the question to be determined is, what, in these cases, constitutes non-residence.

The Code, in giving the remedy by attachment, where the party sued “ is not a resident of this State,” has furnished no specific definition of the sense in which it uses this much litigated form of expression. We are left, therefore, in determining its meaning, to the ordinary rules of interpretation.

Any person, it is well settled, may have his domicil in one place and his residence, for the time being, in another. Thus a citizen of New York may retain his dwelling in this city, with its furniture, undisturbed, in charge of his ordinary domestics, for a year or more, while he is educating his children in Switzerland, and occupying a hired house in Geneva for that purpose. In such case, New York, it is obvious, continues to be the place of his domicil; and it seems equally obvious that he becomes, notwithstanding, a temporary resident of the city of Geneva. But does it follow, say the defendant’s counsel, that in becoming a temporary resident of Geneva he be

Dissent

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comes a non-resident, permanent or temporary, of New York? May not a man bave two residences at the same time, a permanent and a temporary one? He certainly may. In the case put of one of our citizens living in Geneva, if asked what was his place of residence, he would, no doubt, answer, using the term as synonymous with domicil — “ in New York.” This illustration, however, only shows that a man may have a residence in one place, and, at the same time, he a resident in another. And the statute does not say that a debtor’s property shall be attached if he has no residence in, but if, at the time, he is not a resident of this State. Of what consequence, looking to the object of the law, is it to the creditor that his debtor has a residence or a dozen residences in this State, if he himself remains for years, perhaps, out of its jurisdiction, residing actually and personally in Paris or Geneva? Wherein, so far as the creditor’s remedy for his debt is concerned, does such residing abroad differ in its effect from absconding or concealment? In either case, the reason for attaching the property arises from the impossibility of summoning the person.

But this reason, it may be said, would apply equally to the case of a débtor merely travelling abroad. The answer is, that on account of the- inconvenient restraint upon locomotion, which the allowance of an attachment in such cases would produce, the Legislature have in effect excepted travellers from the provision. A man, so far as this law is concerned, may travel without apprehension; but the moment he ceases to sustain the character of a traveller, and for purposes of education or business, takes up a fixed temporary abode, he becomes, for the time being, a resident abroad; and as a consequence, for the time being, in the eye of the law, a non-resident at home, and liable, as such non-resident, to have his property which he has left behind attached for the payment of his debts.

I see nothing unreasonable in this rule; on the contrary, while extending all due indulgence to the love of foreign travel, it shows no more than proper regard for the claims of domestic justice. Applied to the defendant’s case, the attachment clearly was rightfully granted.

He had left his family behind, it is true — but they could not be sued, and he had taken up a residence and opened and kept

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a store for nine months and upwards in a distant State. I think it pretty evident, moreover, that had his anticipations been realized, his family would ultimately have followed him to their new home. In one of his letters to his correspondents after visiting the West, he speaks of the place selected by him “ to open a store,” as a spot where he could “ build up a large and profitable trade.” In one of their letters to him, his correspondents inquire, what under the circumstances will be the effect of his “ movingshowing very clearly, the sense in which they understood his declarations. And he, in his reply, instead of correcting this impression, as he no doubt would have done, had he considered it erroneous, simply says, that he does not “ think his leaving here” — that is, leaving his original place of business, will have the effect of depreciating his existing property, as his friends suggested.

Five months afterwards, too, writing from the new “ place which he had chosen,” and in which he had, seemingly at least, established himself; after describing the probable consequences of a certain course of procedure, he observes : “Now, gentlemen, to avert the fulfilment of this picture, I have forsaken for the time being, home, wife, children and friends, and have commeneed business upon the very outskirts of civilization.” Surely, the place of which a man could thus write before going to it, and which he could thus characterize after months of actual occupancy, must at least be his temporary residence. And if so, is he not, while personally at it, and far away from his original domicil, properly termed for the time being, a non-resident of the latter — at least, within the true spirit and meaning of the law of attachment ?

If the inferences thus drawn from the defendant’s acts and correspondence, had been to any material extent erroneous, is it to be supposed that, anticipating as he no doubt did, their suggestion, he would have written to contradict them by his own affidavit? On a question of residence, where, although not conclusive, so much depends on the, perhaps, unrevealed intents of the mind, the unexplained absence of the party’s own affidavit, (he being permitted, if disposed, to be his own witness), is a strong negative circumstance, amply sufficient, as it

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seems to me, even were the facts otherwise doubtful, to turn the scale against him.

My conclusion, as well on principle as on authority, is, that the defendant at the time in question, was at least a temporary resident of Wisconsin, and not a resident of this State; and that the order vacating the attachment ought therefore to be reversed. See the cases cited in Voorhies Code, 203.

Cases cited

In re Thompson 1 Wend. 43 N.Y. Sup. Ct. p. 143
Frost & Dickinson v. Brisbin 19 Wend. 11 N.Y. Sup. Ct. p. 145