Ayer & Co. v. Weeks

18 A. 1108, 65 N.H. 248

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1889
• Status: Published

Opinion

Clark, J.

The case raises a question of jurisdiction, which depends upon whether Weeks, the debtor, had a legal residence in Somersworth when the insolvency proceedings were instituted. This is mainly a question of fact. Foss v. Foss, 58 N. H. 283.

In a proceeding against Weeks, the paper offered in evidence would be admissible as containing admissions made by him. But although Weeks’s name appears upon the record, he is in no sense a party to the controversy between the attaching creditors and the petitioning creditors in the insolvency proceedings, and his admissions or agreement to abide the orders and decrees of the insolvency court could not confer jurisdiction if it did not otherwise exist. As to the plaintiffs, the paper is merely a statement of declarations made by Weeks since the controversy arose, relating in part to post transactions and in part to his present and future purposes. Declarations, written or verbal, are sometimes received in connection with acts done as explanatory of such acts, and on questions of residence or domicile as evidence of intention, but in such cases the declarations, to be admissible, must have been made in the ordinary course of business at the time when the party had no interest to make evidence, and before any controversy. Doe v. Arkwright, 5 Car. & P. 575; Thorndike v. Boston, 1 Met. 242, 247. We think the document was not competent evidence on the question of Weeks’s residence.

But, excluding the evidence, upon the facts found the legal residence of Weeks was in Somersworth. Although the words “residence ” and “domicile” are not always convertible terms and have not always precisely the same meaning, we are of the opinion that the residence upon which jurisdiction depends, under the insolvency statute, is a legal residence equivalent to domicile. And whatsoever rule may be adopted in cases involving questions of pauper settlement, voting, and taxation, the principle is well settled that for purposes of jurisdiction and judicial administration a person must have a domicile somewhere, and that he can have but one, and therefore a domicile once existing continues until another is acquired elsewhere. The case shows that Weeks’s domicile was in Somersworth, and the fact is found that he had not acquired a domicile or residence elsewhere. The fact that he left Somersworth with the intention never to return did not destroy his domicile there. Until he had gained a domicile elsewhere, he remained a resident within the jurisdiction of the insolvency court and liable to be proceeded against in insolvency. Cobb v. Rice, 130 Mass. 231, 234.

Appeal dismissed.

Carpenter, J., did not sit: the others concurred.