be inferred from facts established.1 4. Absence. Generally speaking, the statutes make no difference between a non-resident who is absent and one who is temporarily present; but, when "absence and non-residence" must be alleged, and must be stated in the affidavit, the statute requiring it must be followed, under penalty of having the attachment refused, or, if first granted, that of having it dissolved for non-compliance with the conditions of its authorization. Ordinarily, however, the present whereabouts of the non-resident debtor need not be averred. The test question usually is, whether the debtor is a resident or a non-resident; not whether he is present or absent at the time the process is issued. Where a certain period of absence-three months, for instance-must be alleged in the affidavit to conform to statute, that averment becomes as important as the allegation of non-residence.2 Protracted absence rendering the service of ordinary process impossible is equivalent to non-residence, if there is no place within the jurisdiction at which a summons may be legally left. The creditor is justifiable in suing out foreign attachment against a debtor absent without such a place within the jurisdiction, believing the debtor's stay abroad will be protracted, even though mistaken in that belief. What length of absence amounts to non-residence within the meaning of the attachment laws, is a question that turns much on the debtor's design. And this design may be gathered from his Payne v. Young, 8 N. Y. 158. Service The sureties on the bond are estopped from denying the defendant's non-residence. Haggart v. Morgan. 5 N. Y. 422. 1. Non-residence Inferred from Abscond ing. Where the affidavit states, in effect, that the defendant had been convicted of fraudulently obtaining money; that, while awaiting sentence, he had escaped; and that most strenuous efforts have failed to discover him; and that the plaintiff claims the money so embezzled; held, sufficient to authorize the issuing of a warrant of attachment, and that the warrant could be sustained on the ground that, from the facts stated, it sufficiently appeared that the defendant had left the State and was a non-resident. Mayor, etc., of New York v. Genet, 63 N. Y. 646. 2. Absence and Intent.-Wells v. People, 44 Ill. 40; Morgan v. Avery, 7 Barb. (N. Y.) 656; Swaney v. Hutchins, 13 Neb. 266. Intent to stay away permanently was inferred from a citizen's absence of ten years, without communicating with regard to his property, and attachment of his property as that of a non-resident was sustained. Walker 2. Barrelli, 32 La. Ann. 467. Acts indicating a design to become a non-resident outweigh declarations of the defendant to the contrary. Wolf v. McGavock, 23 Wis. 516. Temporary absence, without other indications, affords no ground for concluding that the debtor has left his State permanently, and no cause for attachment. Alston v. Newcomer, 42 Miss. 186; Long v. Ryan, 30 Gratt. (Va.) 718; Morgan v. Nunes, 54 Miss. 308. own declarations, from circumstances attending his departure, from the condition of his business affairs, from the whereabouts of his family, from his silence about business matters connected with his absence of which interested men usually speak, and from any suspicious circumstance which he himself could readily explain but which he leaves in doubt.1 5. Protracted Absence-Removal.-One who is domiciled within the State, and may be served by the leaving of process there with proper persons of his family living there, may be abroad many years without subjecting himself to liability to foreign attachment; for no length of time will create the presumption of nonresidence under such circumstances. Why should the extraordinary process be invoked against him when the ordinary is available? But if the latter is unavailable, the creditor is entitled to the former, even though the indebted absentee is not acquiring residence abroad, not intending to acquire it, and is merely travelling, with the expectation of returning. He must have a place where he can be reached by process at the precise time when it is issued, if he would avoid liability to procedure against him as a non-resident. His becoming a resident soon after would have no effect. His being such at the time of the trial could not help him to defeat the remedy. 1. A brief absence is sufficient to justify the allegation of non-residence if there are facts to indicate that there is no intention of returning,--Morgan 7. Nunes, 34 Miss. 307: Wheeler v. Cobb, 75 N. Car. 21; McCollem v. White, 23 Ind. 43; Farrow v. Barker, 3 B. Mon. (Ky.) 217;— while, without such indications, one may be absent for years without becoming a non-resident, unless the statute of the State fixes a period, -Egan v. Lumsden, 2 Disney (Ohio), 168. Statutory Limit.-In Kentucky, Arkansas, and Colorado, an absence of four months renders one a non-resident for attachment purposes; in Michigan, three months' absence, coupled with non-residence. Absence for months, with such other circumstances as partial assignment, entry into business abroad, and failure to express an intention of returning, has been held sufficient to justify foreign attachment in a suit against him. Nailor v. French, 4 Yeates (Pa.), 241. It does not avail a non-resident to have an agent within the State: he is none the less liable to the foreign attachment of his property. Chase 7. Ninth Nat. Bank of New York, 56 Pa. St. 355. The remedy is inapplicable to the estate of a person who is a resident, but leaves stating that he is going out of the State, yet returns in a few days. Shipman v. Woodbury, 2 Miles (Pa.), 67. The expression, in a statute, "not in this State was held to mean residing out of the State," and not to include an inhabitant of the State temporarily absent, with reference to foreign attachment. Potter 7. Sanborn, 49 Conn. 452. Actual cessation to dwell within the State, with general intention to return but no fixed time therefor, constitutes nonresidence and warrants an attachment under New York Code. 635,636. Weitkamp v. Lohr, 53 N. Y. Super. Ct. 79. Where a defendant sold nearly all his personalty, placed his farm in the hands of an agent for sale, and left the State, and did not return until after attachment had been levied upon his farm, when he admitted that when he left he did not intend to make Kansas his home again, he was held to have been a non-resident at the time of the attachment. Ritter v. Phoenix Mut. Life Ins. Co., 32 Kan. 504. 2. Removal.-One does not become a new resident so as to subject him to foreign attachment by leaving his residence and going into another State to seek a new one, until he has found another, with intent to remain there. Reed's App., 71 Pa. St. 378. A debtor who had a place of business in the city of New York, but who resided in Paris part of his time for the purpose of purchasing goods for his New York house, and who had given up his apartments in Paris, taken rooms in One who is absent on behalf of the government does not lose his residence.1 The question of non-residence being vital to the remedy of foreign attachment, an intervening creditor may raise it, and introduce evidence to disprove it.2 In Virginia, and some other States, it is necessary that the defendant shall have been formerly a resident.3 6. Public Corporations.-State and Federal governments, and their officers, cannot be subject to foreign attachment and garnishment: Governments cannot, for the general reason that they cannot be sued; and their officers cannot be, for property and money are held in such cases to be in the custody of the law. The funds of government, being devoted to governmental purposes, cannot be diverted to other objects by means of a process issued in the interest of another. Could that be done, the functions of the government might be suspended, officers would be hindered in the discharge of their duties, and payments could not be made without confusion, prior to the adjustment of official accounts.4 New York for himself and family, and announced his intention of remaining in the latter city, was held not a non-resident, and his goods not liable to foreign attachment. Knapp v. Gerson, (N. Y.), 25 Fed. Rep. 197. Inferences of witnesses, drawn from the defendant's declarations as to his intentions with respect to residence and non-residence, held, not proper evidence. Charles v. Amos, 10 Colo. 272. An emigrant from a State has been deemed a non-resident before crossing its border-line in making his exit. Clark v. Ward, 12 Gratt. (Va.) 440. Compare Ballinger v. Lantier, 15 Kan. 608. But, with full intent to change his residence to another State, he cannot be treated as having changed it before actually leaving home to execute his purposes. Kugler v. Shreve, 4 Dutch. (N. J) 129; Hale v. Richardson, 89 N. Car. 62. Absence preparatory to permanent removal affords no ground while there is yet a place within the State where ordinary process may reach the debtor. Pfoutz v. Comford, 36 Pa. St. 420. But it was held, in New York, that one domiciliated therein, but residing in another State part of his time, doing business in both States, may have his property attached in New York. McKinley v. Fowler, 67 How. Pr. (N. Y.) 388. Actual cessation to dwell within the State for an uncertain period, though a general intention to return at some future time may exist, constitutes non-residence and warrants attachment under the New York Code, § 635, 636. Weitkamp v. Loehr, 53 N. Y. Super. Ct. 78. See the leading cases of Frost v. Brisbin, 19 Wend. (N. Y.) 11; s. c., Am. Dec. 423, note;—also, the leading case of Haggart v. Morgan, 5 N. Y. 422; s. c., 55 Am. Dec. 550, note. 1. Absent in the Army.-Residence is not lost by absence when the absentee is in the Federal army,-Fibbits v. Townsend, 15 Abb. Pr. (N. Y.) 221; Thompson's Case, 1 Wend. (N. Y.) 43-but otherwise if in the Confederate army.Ludlow v. Ramsey, 11 Wall. (U. S.) 581. 2. Judgment Creditor Intervening.-A judgment creditor, subject to a foreign attachment laid, has a standing to con test the facts of the non-residence of the defendant and that the plaintiff gained a lien by his writ. Reed's App., 71 Pa. St. 378. 3. Former Residence. - In Virginia, under Code 1873, ch. 148, § 3, an attachment cannot create a lien on the property of a non-resident defendant who has never been a resident of that State. Starke 7. Scott, 78 Va. 180. 4. States, etc.-Averill v. Tucker, 2 Cr. (C. C.) 544; Buchanan v. Alexander, 4 How. (U. S.) 20; Derr v. Luby, 1 McArth. (D. C.) 187; Pottier & Stymus Mfg. Co. v. Taylor, 3 McArth. (D. C.) 4; Brown v. Finley, 3 McArth. (D. C.) 77; Dewey v. Garvey, 130 Mass. 86; Pennebaker v. Tomlinson, (State Comptroller, Garnishee,) I Tenn. Ch. 598; Rollo v. Andes Ins. Co., (State Treasurer, Garnishee.) 23 Gratt. (Va.) 509; Wild . Ferguson, 23 La. Ann. 752; (State officer, Garnishee;) Wilson v. Bank of La., 55 Ga. 98; Divine v. Harvie, 7 T. B. Mon. (Ky.) 439.(State officer, Garnishee. The general rule that governments and their officers are not subject to attachment and garnishment is applicable to subordinate public corporations, such as counties, townships, school districts, and cities, though the rule is not universal, as will be shown. If, however, the law provides that subordinate public corporations may "sue and be sued," this general authorization would render them liable to foreign as well as domestic attachment, and to the process of garnishment. Though these remedies be not mentioned. in the statute, they would be understood as included with all legal remedies under the general authorization. These quasi corporations do not include counties, but the latter may be rendered liable by State statute. Whether foreign attachment and garnishment are applicable to counties, etc., depends upon the statute of each State with refer ence to the process therein. But it has been held that there may be waiver of objection, though the attaching creditor have no express statutory right to employ the remedy; provided, however, that there must be assent on the part of the attachment debtor before garnishment can be resorted to under such circumstances.2 7. Cities. The liability of cities depends upon statute; and, in the absence of express authorization, the creditor cannot employ 1. Counties, Cities, etc. - Cheally v. Brewer, 7 Mass. 259; Williams v. Boardman, 9 Allen (Mass.), 570; Winchell v. Allen, I Conn. 585; Stillman v. Isham, II Conn. 124; Ward v. County of Hart ford. 12 Conn. 404; Bray v. Wallingford, 20 Conn. 416; Webb v. McCauley, 4 Bush (Ky.), 8; Boone County v. Keck, 31 Ark. 387; McDougal v. Hennepin County. 4 Minn. 156; Wallace v. Lawyer, 54 Ind. 501; Merrill v. Campbell, 49 Wis. 535; Bromham v. Fond du Lac, 15 Wis. 193: Buffham v. Racine, 26 Wis. 449; Hill v. Lacrosse R. Co., 14 Wis. 291. 2. Public Corporations, When Liable.Counties have been held liable to conservative writs under general provision that they may sue and be sued. Ward v. County of Hartford, 12 Conn. 404; McLoud v. Selby, 10 Conn. 390; Tilden v. Metcalf, 2 Day (Conn.), 259. Counties may be garnisheed for debts due on their own contracts, in Massachusetts, and so may cities. Adams v. Taylor, 121 Mass. 380. But a juror's fees, due and unpaid by a county, ordinarily cannot be reached by trustee process against the county; though that has been done in New Hampshire. Wardwell v. Jones, 58 N. H. 305. Whenever a county may be sued, and judgment obtained against it, debts due it may be reached by garnishment. George v. Ralls County, 3 McCrary (C. C.), 181. Townships are not ordinarily liable to the process;-Bradley v. Town of Rich- Hib Waiver.- Las Animas County Commissioners v. Bond, 3 Colo. 441; Clapp v. Walker, 25 Iowa, 315. Assent of Debtor. - Johnson v. Dexter, 38 Mich. 695; School District v Gage, 39 Mich. 484. School Funds in Custodia Legis. School districts and school commissioners and other officers cannot be garnisheed with respect to the funds they hold for distribution for public purposes. School Directors v. Harper, 59 Ill. 21; Millison v. Fisk, 43 Ill. 112; Bulkly v. Eckert, 3 Pa. St. 368; Colby v. Coates, 6 Cush. (Mass.) 559; School District v. Wood, 13 Mass. 193; Thayer v. Tyler. 5 5 Allen (Mass.). 95; Hadley v. Peabody, 13 Gray (Mass.), 200; Hightower v. Slaton, 54 Ga. 108; McLellan v. Young, 54 Ga. 399; s. c., 21 Am. Rep. 276; Clark v. School Coms., 36 Ala. 261; Tracy v. Hornbuckle, 8 Bush (Ky.), 336. School Districts as Municipal Corporations.-Seely v. Board of Education, 39 Mich. 486; School District v. Gage, 39 Mich. 484; Trustees of Schools v. Tatman, 13 Ill. 27. the remedy against them, nor garnishee them.1 In cases of contract, however, they have been held liable as trustees; that is, when they are indebted upon contract to the attachment debtor. There has been apparent conflict on the subject of their liability, but the differences are mostly attributable to the variations in the statutes of the several States, and the construction of them. As a general principle, it may be considered settled that municipal corporations are never liable to garnishment or trustee process in a case of foreign attachment, where they could not themselves be made defendants in a case of direct attachment for the debt sought to be reached in their hands as garnishees.3 8. Private Corporations.-A foreign corporation is liable precisely as a non-resident is. It is included in statutes, when not expressly named, under such terms as "non-resident debtor," "attachment defendant," "person," etc. There have been objections made to the including of such corporations under the terms "persons" and "citizens," but, for the purposes of the remedy, there is now no difficulty in holding such non-resident artificial persons under the general provisions of statutes authorizing the process against foreign or non-resident debtors, persons, and the like. A corporation is foreign in every other State or country except that of its location and domicil. There is an exception to this general rule: If another State bestows upon foreign corporations the right of doing business within its bounds, and provides by statute that they shall have the same standing as domestic corporations, they are no longer liable to the remedy.4 Incorporation by the United States government does not affect the rule that the corporation is foreign or domestic according to its location.5 1. Statutory Authorization Does Not Usually Include Cities.-Merrell v. Campbell, 49 Wis. 535; Merwin v. Chicago, 45 Ill. 133: Chicago v. Halsey, 25 Ill. 485; Fortune v. St. Louis, 23 Mo. 239; Hawthorne v. St. Louis, II Mo. 59. Compare Pendleton v. Perkins, 49 Mo. 565; Moore v. Chattanooga, 8 Heisk. (Tenn.) 850; Memphis v. Laski, 9 Heisk. (Tenn.) 511; Baltimore v. Root, 8 Md. 95; Erie v. Knapp, 29 Pa. St. 173: Pittstown v. Plattsburgh, 18 Johns. (N. Y.) 407; People v. Mayor, etc., 2 Neb. 166. 2. Adams v. Tyler, 121 Mass. 380; Mayor, etc. v. Horton, 38 N. J. L. 88; Wales v. Muscatine, 4 Iowa, 302; Neuer v. O'Fallon, 18 Mo. 277. 3. Cases cited in the two notes immediately preceding. 4. Foreign Corporation Described.Louisville, etc., R. Co. v. Letson, 2 How. (U. S.) 497; Covington Bridge Co. v. Shepherd, 20 How. (U. S.) 227; Merrick 7. Van Santvoord, 34 N. Y. 208; Stevens 7. Phoenix Ins. Co., 41 N. Y. 149. Rights of Residents, When Conferred by Statute.-Phillipsburgh Bank v. Lackawanna R. Co., 3 Dutch. (N. J.) 206; Martin v. Mobile, etc., R. Co., 7 Bush (Ky.), 116. If chartered in any other State besides that of its origin, a corporation is domestic there. Sprague . Hartford, etc., R. Co., 5 R. I. 233. The rights conferred depend upon statute; and the domestic character is not necessarily acquired by obtaining the privilege of doing business in a State other than that of the domicil of origin. South Carolina R. Co. v. People's Saving Institution, 64 Ga. 18. Foreign Corporations Included in the Term "Non-residents."-Wilson v. Danforth, 47 Ga. 676; Andrews v. Michigan Cent. R. Co., 99 Mass. 534; First Nat. Bank v. Colby, 46 Ala. 432; Martin v. Branch Bank, 14 La. 415. 5. National Banks.-They are domestic corporations in the State in which they are located, but foreign elsewhere. The fact that they derive their powers from |
