Chaine a. Wilson.

thority, it will be found to designate either the tutelary deity of the hearth, or the only home of the family.*

In either sense Norwalk constituted the Larem of the defendants.

So all that we can gather from the papers before us, as to the mass of his fortune (summam fortunarum), indicates the possession of a homestead in Norwalk, while his floating capital was in New York, in the midst of agitation and peril. In the fall of 1857 "his commercial embarrassments began," and we may infer from the result that such capital was inadequate to meet his debts.

Then it was that the deed of the homestead to his son was recorded, and then the advice to remove his family to New York was given and acted upon.

I may also refer to the comprehensive statement of the legal meaning of the term in an eminent French author: "They who have no intention of fixing their domicile in a place, but are absent somewhere for convenience, necessity, or business, cannot, by any lapse of time, create a domicile; neither the intention without the fact, nor the fact without the intention, is sufficient for this." (D. Argentie, art. 9, § 4, cited by Phillimore on Domicile, p. 11, Law Library, vol. 41.)

I do not think that this subject can be properly treated without adverting to the important decisions in admiralty respecting the residence of a citizen in an enemy's country, to subject his property to seizure and condemnation in time of war. The authorities before Sir William Scott are all cited and commented upon in the great case of The Venus (8 Cranch R., 253), in the opinions of Justice Washington and Chief-justice Marshall.

It is sufficient for me to say, that the governing rule was admitted to be the removing from an established domicile, with the

* Di penates meûm parentum familiæque Lar pater, vobis mando; meûm parentum rem bene ut tutemini: ego mihi, alios deos penates, persequar, alium Larem. (Plautus.) Laribus un foco, penatralibus in atrio, aut interiore ædium parte saera fiebant.—(Ib.) Omnium edium ac familiarum dii erant; iisque focus peculiariter sacer erat.-(Forcellini, Lexicon, in Verbo.)

Illos binas, aut amplius domos continuare, nobis larem familiarem nusquam ullum esse.— (Sallust.)

The definition Domicilium in the Dictionary of Forcellini et cura Facciolati is, Domus, Edes, Domestica Habitatio.-(In Verbo.)

VOL VIII-7

Chaine a. Wilson.

intention of making a permanent settlement, or for an indefinite time elsewhere. With such an intention the right of the domicile might be acquired upon a residence of even a few days. It was admitted in the case that the claimants had acquired a right of domicile in Great Britain, at the time of the breaking out of the war; and thus the question was, What was the con sequence of the capture of such a person's property on the high seas ?

I think that upon the application of the leading principles and cases I have thus referred to, the legal conclusion is, that the defendant Wilson was not a resident of New York at the date of these attachments.

Through all the periods of his business prosperity, we find his domestic hearth and his household comforts at Norwalk, his hopes of the enjoyment of the fruits of his labor there concentrated in adversity, we find that he turns to the same place for respite and repose. It is only when the struggle with hostile fortune had begun, and the apprehension arose that his property might be swept away from the purposes to which he might wish to destine it, that he brought his family to reside temporarily in New York.

It is impossible, I think, to look upon him as more than a sojourner in this city, with no intention of remaining there fixedly; but with an intention, in all the vicissitudes of his business and of life, of permanently resting at Norwalk.

The motion to discharge the attachments must be denied, with $7 costs in each case.

From the order entered on this decision, the defendants appealed to the general term.

James T. Brady, for the appellants.-I. Wilson was not, when either of the attachments issued against him, a " non-resident” of this State within the meaning of the Code. 1. The word "residence" should, in construing the Code, be deemed synonymous with "domicile." 2. "Domicile" we define to be synonymous with "home," and to mean one's "habitation fixed in any place, without any present intention of removing therefrom." (Putnam a. Johnson, 10 Mass., 488.) 3. "Removing," as thus used, means removing with the intent to change the place of

Chaine a. Wilson.

domicile. 4. "Residence" and "domicile" have been treated as of different significations, the former being sometimes taken to mean the place where one was staying, without having a domicile or home there. The latter is the sense in which it is used by the Supreme Court of this State in the decisions under the Revised Statutes, and Non-imprisonment Act. 5. It is not necessary, in order to render any place one's "domicile," that he or she should have any particular house or apartment there as the place of fixed abode. (Parsonsfield a. Perkins, 2 Greenl., 411.) 6. "Every person must have a domicile somewhere." (Abingdon a. N. Bridgwater, 23 Pick., 170.) 7. The intent of the party, when ascertained, tends strongly to establish where his domicile is. (Milton a. Falmouth, 3 Shep., 479.) 8. A domicile once fixed will continue, notwithstanding the absence of a party, until a new domicile is acquired. (Jennison a. Hapgood, 10 Pick., 377.) 9. That a party goes away from his domicile for some purpose of business or pleasure, or if he be absent for years seeking employment, or engaged otherwise, does not change his domicile. (Knox a. Waldoborough, 3 Greenl., 455.) 10. The domicile of the wife follows that of her husband. (Greene a. Greene, 11 Pick., 410.) 11. The fact that a man does not remove his family to the place where he establishes a domicile, does not affect a question like the one here presented, if as to him the proof of domicile is satisfactory. (Cambridge a. Charlestown, 13 Mass., 501; Cadwallader a. Howell, 2 Harr., 138.)

II. The process of attachment against the property of a nonresident debtor was originally given, because he could not be served with the ordinary process of the courts, so as to make a judgment against him effective. And before the Code it operated to place his property in the hands of trustees, to be distributed for the benefit of such creditors as might claim the benefit of the proceeding.

III. The Supreme Court for that reason held that an attachment would lie where a debtor was sojourning out of the jurisdiction of our courts, although his domicile was within this State. The word "residence" was in those adjudications taken to mean the place of his personal abode merely. (Matter of Thompson, 1 Wend., 43; Matter of Wrigley, 8 Ib., 134; Frost a. Brisbain, 19 Ib., 11.)

Chaine a. Wilson.

IV. But under the decisions before the Code, Wilson was a resident of this State when the attachments issued, within even. the liberal rule, then applied to proceedings of this nature.

V. Under the Code ample provision is made for commencing suits against absent or non-resident debtors. They are thus made amenable to our courts, and the former reason for the remedy by attachment no longer remains. It is not now a proceeding for creditors generally, but a special remedy for the benefit of the vigilant plaintiff who adopts it, and to be awarded only when he makes out a case justifying this peculiar relief. (Houghton a. Auld, 16 How. Pr. R., 78.)

non-resident" of

VI. There is no proof that Wilson was a the State of New York, between the 12th October, 1857, and the 2d July, 1858. The contrary is shown. 1. To settle the question as to his residence, he formed the intention which Hendricks proves to give every ostensible evidence that his domicile was in New York city. And although one of his objects in doing so was to avoid attachments, it is not correct to conclude that he came "not with a full intention to fix himself permanently in New York." The evidence does not justify this conclusion. Mr. Wilson shows that New York was the place he designed for his home, and that the only reason he remained in a hotel, was the desire to occupy no house with his family until he owned it. 2. He engaged rooms at the St. Nicholas, as his home, and thither removed his entire household. He ceased to be the temporary or occasional guest of his son Oliver, and became master of a tenement. Thus, upon every authority affecting a question like the present, he fixed his domicile and residence here. And can there be any doubt that if the attachment laws of Connecticut had been the same as ours, any property he owned in the latter State might have been attached there on a procedure against him as a non-resident. 3. Having thus obtained a domicile in New York, it remained there unless he changed it, and obtained one elsewhere. (See, generally, 2 Parsons on Contr., 90; 1 Binney, 340, note.) 4. He did not make such change. It is true that when the two attachments issued, one in April and the other in May, Wilson's person was in Norwalk. But he was not there with an intention to remain there. He swears, and there is no contradiction on the point, that he was unable to resume business until the latter part of May.

ODLE

AN

Chaine a. Wilson.

This was because of his very severe illness, which began in January, 1858. It is also true that the rooms at the St. Nicholas were given up when he went to Norwalk, in January. But this does not vary the question. If he had retained those rooms it would have been a useless expense. It was not the St. Nicholas Hotel which was his domicile, but the city of New York. And if he had changed his lodgings every night, this would not have altered his "domicile" in the contemplation of law. That Wilson's domicile was in New York in November, 1857, is shown by an act, indicative of intent, to which the law attaches much importance. He voted at the mayoralty election held in that city during that month. (Shelton a. Tiffin, How. (U.S.), 185.) We have then, to show that Wilson was a resident of and domiciled in New York, from October, 1857, until all the attachments had been issued, the following facts:

1. His business and property of every kind were in New York, and always had been, since 1856.

2. He had no tenement or habitation in Norwalk. When there he was a mere guest of his son.

3. He came here from Norwalk to make his "home" here, and so declared.

4. It was his interest to continue his residence here, so as to avoid an attachment of his property.

5. He returned here as soon as his health would permit, after his temporary absence from January to May.

6. After returning, he remained here with the continued intent to reside here. And he was no more a resident of Norwalk than of Saratoga, where he went for the benefit of his health.

VII. As to the three attachments issued in June and July, it seems quite clear, that when they issued Wilson was not a non-resident of this State; for in the latter part of May he returned here and remained here ever since. If, therefore, the rules apply in this case which prevailed under the Revised Statutes and non-imprisonment act, then, as Wilson was actually within the jurisdiction of the court, no attack ment could issue against him.

VIII. None of the authorities cited in the able and elaborate opinion of Judge Hoffman vary the effect of the reasoning and cases cited under the foregoing points. 1. The question of "domicile" for purposes connected with the national, ecclesias