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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 sufficient to authorize the issuing of a is on the trustee. Wright v. Douglass, 7 warrant of altachment, and that the warN. Y. 564. The process may be issued rant could be sustained on the ground in favor of a firm, some of the members that, from the facts stated, it sufficiently of which are non-resident. Renard v. appeared that the defendant had left the Hargous, 13 N. Y. 259. When against State and was a non-resident. Mayor, one partner, the levy nay be on partner- etc., of New York v. Genet, 63 N. Y. ship property. Smith v. Orser, 42 N. 646. Y. 132. When against a foreign corpora- 2. Absence and Intent.-Wells 7'. People, tion, the sheriff or plaintiff may assume 44 11. 40; Morgan v. Avery, 7 Barb. (N. prosecution of actions brought by the Y.) 656; Swaney 2'. Hutchins, 13 Neb. corporation on stock subscriptions-effect 266. on
other attaching creditors, etc. Intent to stay away permanently was O'Brien v. Glenville Woollen Co., 50 N. inferred from a citizen's absence of ten Y. 128. The process of foreign attach- years, without communicating with rement may be issued against a national gard to his property, and attachment of bank located in another Siale. Robinson his property as that of non-resident was 7. Nat. Bank of Newberne, 81 N. Y. 385; sustained. Walker 2. Barrelli, 32 La. s. C., 37 Am. Rep. 508.
Ann. 467. The surelies on the bond are esiopped Acts indicating a design to become a from denying the defendant's non-resi- non-resident outweigh declarations of dence. Haggart v. Morgan, 5 N. Y. 422. the defendant to the contrary.
Wolf 7. 1. Non-residence Inferred from Abscond. McGavock, 23 Wis. 516. Temporary abing.–Where the affidavit states, in effect, sence, without other indications, affords that the defendant had been convicted of no ground for concluding that the debtor fraudulently obtaining money; that, while has left his State permanently, and no awaiting sentence, he had escaped; cause for attachment. Alston ?'. Newand that most strenuous efforts have comer, 42 Miss. 186; Long v. Ryan, 30 failed to discover him; and that the plain. Grali. (Va.) 718; Morgan v. Nunes, 54 tiff claims the money so embezzled; held, 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.2
1. A brief absence is sufficient to justify The expression, in a statute, “not in the allegation of non-residence if there this State " was held to mean residing are facts to indicate that there is no out of the State," and not to include an intention of returning --Morgan 2. Nunes, inhabitant of the State temporarily absent, 34 Miss. 307: Wheeler v. Cobb, 75 N. with reference to foreign attachment. Car. 21; McCollem v. White, 23 Ind. 43; Poiter v. Sanborn, 49 Coon. 452. Farrow v.Barker, 3 B. Mon. (Ky.) 217;--- Actual cessation to dwell within the while, without such indications, one may State, with general intention to return but be absent for years without becoming a no fixed time therefor, constitutes nonnon-resident, unless the statute of the residence and warrants an attachment State fixes a period, - Egan v. Lumsden, under New York Code. $$ 635,636. Weit2 Disney (Ohio), 168.
kamp v. Læhr, 53 N. Y. Super. Ct. 79. Statutory Limit.-In Kentucky, Ar- Where a defendant sold nearly all his kansas, and Colorado, an absence of four personalty, placed his farm in the hands months renders one a non-resident for of an agent for sale, and left the State, attachment purposes; in Michigan, three and did not return until after attachment months' absence, coupled with non-resi- had been levied upon his farm, when he dence.
admitted that when he left he did not inAbsence for months, with such other tend to make Kansas his home again, he circumstances as partial assignment, en- was held to have been a non-resident at try into business abroad, and failure to the time of the attachment. Ritter v. express an intention of returning, has Phænix Mut. Life Ins. Co., 32 Kan. 504. been held sufficient to justify foreign 2. Removal.-One "does not beconie attachment in a suit against him. Nailor a new resident so as to subject him to forv. French, 4 Yeates (Pa.), 241. It does eign attachment by leaving his residence not avail a non-resident to have an agent and going into another State to seek a within the State: he is none the less liable
until he has found another, to the foreign attachment of his property. with intent to remain there. Reed's App., Chase 7'. Ninth Nat. Bank of New York, 71 Pa. St. 378. 56 Pa. Si. 355. The remedy is inappli- A debtor who had a place of business cable to the estate of a person who is a in the city of New York, but who reresident, but leaves stating that he is sided in Paris part of his time for the going out of the State, yet returns in a purpose of purchasing goods for his New few days. Shipınan v. Woodbury, 2 York house, and who had given up his Miles (Pa.), 67.
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."
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 forcign 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 See the leading cases of Frost v. Brisannounced his intention of remaining in bin, 19 Wend. (N. Y.) 11;
S. c., Am. the latter city, was held not a non-resi. Dec. 423, note;-also, the leading case dent, and his goods not liable to foreign of Haggart v. Morgan, 5 N. Y. 422; s. attachment. Knapp v. Gerson, (N. Y.), C., 55 Am. Dec. 550, note. 25 Fed. Rep. 197.
1. Absent in the Army.- Residence is Inferences of witnesses, drawn from not lost by absence when the absentee is the defendant's declarations as to his in- in the Federal army,-Fibbiis v. Towntentions with respect to residence and send, 15 Abb. Pr. (N. Y.) 221; Thomp. non-residence, held, not proper evidence. son's Case, 1 Wend. (N. Y.) 43;-but Charles v. Amos, 10 Colo. 272.
otherwise if in the Confederate army.-An emigrant from a State has been Ludlow v. Ramsey. Wall. (U. S.) 581. deemed a non-resident before crossing 2. Judgment Creditor Intervening.-A its border-line in making his exit. Clark judgment creditor, subject to a foreign v. Ward. 12 Gratt. (Va.) 440. Compare attachment laid, has a standing to conBallinger 2. Lantier, 15 Kan. 608. But, test the facts of the non-residence of the with full intent to change his residence to defendant and that the plaintiff gained a another State, he cannot be treated as lien by his writ. Reed's App., 71 Pa. St. having changed it before actually leav. 378. ing home to execute his purposes. Kug- 3. Former Residence. - In Virginia, ler v. Shreve, 4 Dutch. (N. J ) 129; Hale under Code 1873, ch. 148, § 3, an attach2. Richardson, 89 N. Car. 62.
ment cannot create a lien on the properAbsence preparatory to
permanent ty of a non-resident defendant who has removal affords no ground while there never been a resident of that State. is yet a place within the State where or- Starke 2'. Scott, 78 Va. 18o. dinary process may reach the debtor. 4. States, etc.-Averill v. Tucker, 2 Proutz v. Comford, 36 Pa. St. 420. But Cr. (C. C.) 544; Buchanan v. Alexander, it was held, in New York, that one domi- 4 How. (U. S.) 20; Derr v. Luby, 1 Mcciliated therein, but residing in another Arth. (D. C.) 187; Pottier & Stymus State part of his time, doing business in Mfg. Co. v. Taylor, 3 McArth. (D. C.) both States, may have his property at- 4; Brown v. Finley, 3 McArth. (D. C.) tached in New York. McKinley v. Fow- 77; Dewey v. Garvey, 130 Mass. 86; ler, 67 How. Pr. (N. Y.) 388.
Pennebaker v. Tomlinson, (State CompActual cessation to dwell within the troller, Garnishee,) i Tenn. Ch. 598; State for an uncertain period, though a Rollo v. Andes Ins. Co., (State Treas. general intention to return at some fu- urer, Garnishee.) 23 Gratt. (Va.) 509; cure time may exist, constitutes non-resi- Wild 2'. Ferguson, 23 La. Ann. 752; dence and warrants attachment under (State officer, Garnishee;) Wilson v. Bank the New York Code, SS 635, 636. Weit- of La., 5. Ga. 98; Divine v. Harvie, 7 T. kamp v. Loehr, 53 N. Y. Super. Ct. 78. 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.”
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 the process;-Bradley v. Town of RichBrewer, 7 Mass. 259; Williams v. Board- mond, 6 Vt. 121; Jenks v. Osceola Townman, 9 Allen (Mass.), 570; Winchell v. ship, 45 Iowa. 554:-nor school districts, Allen, I Conn. 585; Stillman v. Isham, -Spencer v. School District, 11 R. I. 537. II Conn. 124; Ward 2. County of Hart- But the rule with respect to townships, ford. 12 Conn. 404; Bray v. Wallingford, etc., is not everywhere applicable. Hib20 Conn. 416; Webb v. McCauley, 4 bard v. Clark, 56 N. H. 135: Walker v. Bush (Ky.), 8; Boone County v. Keck, 31. Cook, 129 Mass. 577. Ark. 387; McDougal v. Hennepin Coun- Waiver.- Las Animas County Comtv. 4 Minn, 156; Wallace v. Lawyer, 54 missioners v. Bond, 3 Colo. 441; Clapp Ind. 501; Merrill v. Campbell, 49 Wis. v. Walker, 25 Iowa, 315. 535; Bromham v. Fond du Lac, 15 Wis. Assent of Debtor. Johnson v. Dex193; Buffham v. Racine, 26 Wis. 449; ter, 38 Mich. 695; School District v. Hill v. Lacrosse R. Co., 14 Wis. 291. Gage, 39 Mich. 48.4.
2. Public Corporations, When Liable. - School Funds in Custodia Legis. Counties have been held liable to con- School districts and school commissioners servative writs under general provision and other officers cannot be garnisheed that they may sue and be sued. Ward with respect to the funds they hold for v. County of Hartford, 12 Conn. 404; distribution for public purposes. School McLoud v. Selby, 10 Conn. 390; Tilden Directors v. Harper, 59 Ill. 21; Millison v. Metcaif, 2 Day (Conn.), 259,
v. Fisk, 43 Ill. 112; Bulkly v. Eckert, 3 Counties may be garnisheed for debts Pa. St. 368; Colby v. Coates, 6 Cush. ciue on their own contracts, in Massachu- (Mass.) 559; School District v. Wood, setts and so may cities. Adams v. Taylor, 13 Mass. 193; Thayer v. Tyler, 5 121 Mass. 380. But a juror's fees, due Allen (Mass.). 95; Hadley v. Peabody, and unpaid by a county, ordinarily can- 13 Gray (Mass.), 200; Hightower v. not be reached by trustee process against Slaton, 54 Ga. 108; McLellan v. Young, the county; though that has been done 54 Ga. 399; S. C., 21 Am. Rep. 276; Clark in New Hampshire. Wardwell v. Jones, v. School Coms., 36 Ala. 261; Tracy v. 58 N. H. 305. Whenever a county may Hornbuckle, 8 Bush (Ky.), 336. be sued, and judgment obtained against School Districts as Municipal Corporait, debts due it may be reached by garn- tions.-Seely v. Board of Education, 39 ishment, George v. Ralls County, 3 Mich. 486; School District v. Gage, 39 McCrary (C. C.), 181.
Mich. 484; Trustees of Schools v. TatTownships are not ordinarily liable to man, 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.2 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 cvery 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.
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 Rights of Residents, When Conferred by Usually Include Cities.—Merrell v. Camp- Statute.- Phillipsburgh Bank v. Lackabell, 49 Wis. 535; Merwin v. Chicago, wanna R. Co., 3 Dutch. (N. J.) 206; 45 III. 133; Chicago v. Halsey. 25 III. Martin v. Mobile, etc., R. Co., 7 Bush 485; Fortune v. St. Louis, 23 Mo. 239; (Ky.), 116. If chartered in any other Hawthorne v. St. Louis, II
State besides that of its origin, a corporaCompare Pendleton v. Perkins, 49 Mo. tion is domestic there. Sprague 2. Hari565; Moore v. Chattanooga, 8 Heisk. ford, etc., R. Co., 5 R. I. 233. The rights (Tenn.) 850; Memphis v. Laski, 9 Heisk. conferred depend upon statute; and the (Tenn.) 511; Baltimore v'. Root, 8 Md. domestic character is not necessarily 95; Erie v. Knapp, 29 Pa. St. 173; Pitis- acquired by obtaining the privilege of town v. Plattsburgh, 18 Johns. (N. Y.) doing business in a State other than that 107; People v. Mayor, etc., 2 Neb. 166. of the domicil of origin. South Carolina
2. Adams v. Tyler, 121 Mass. 380; R. Co. v. People's Saving Institution, Mayor, etc. v. Horton, 38 N. J. L. 88; 64 Ga. 18. Wales v. Muscatine, 4 Iowa, 302; Neuer Foreign Corporations Included in the 2. O'Fallon, 18 Mo. 277.
Term “Non-residents." — Wilson v. Dan3. Cases cited in the two notes im- forth, 47 Ga. 676; Andrews v. Michigan mediately preceding.
Cent. R. Co., 99 Mass. 534: First Nat. 4. Foreign Corporation Described. - Bank v. Colby, 46 Ala. 432; Martin v. Louisville, etc., R. Co. v. Letson, 2 How. Branch Bank, 14 La. 415. (U. S.) 497; Covington Bridge Co. v. 5. National Banks. --They are domesShepherd, 20 How. (U. S.) 227; Merrick tic corporations in the State in which they 7. Van Santvoord. 34 N. Y. 208; Stevens are located, but foreign elsewhere. The 7. Phenix Ins. Co., 4 N. Y. I49. fact that they derive their powers from