In re Thompson

1 Wend. 43

Opinion

By the Court,

Savage, Ch. J.

Judge Irving,* in a learned and elaborate opinion, has discussed the question, whether, by the circumstances of this case, the dom ■scil of Thompson has been changed; and has shown that it Was not 66 The domicil is the habitation, fixed in any place, with an intention of always staying there.” (Vattel, 163.) In this sense, he who stops even for a longtime in a place, for the management of his affairs, has only a simple habitation there, but has no domicil. Thus, the envoy of a foreign prince has not his domicil at the court where he resides.’1 (Ibid. 184.) The argument of the judge proceeds on the ground that if the domicil of the debtor be in this state, he is not liable to be proceeded against as an absent debtor; and having come to the conclusion that the domicil of Alexander Thompson is in New-York, he orders a supersedeas.

The counsel for the attaching creditor tabes a distinction between domicil and residence. Domicil includes residence with an intention to remain in a particular place. He contends that absence without, the state, whether the debtor have his domicil, or a mere residence there, is equally within the object of our act, which authorizes an attachment against the property of the absent debtor.

It appears to me, the object of the statute was to authorize creditors to prosecute for their debts when their debtors were abroad; and whether their absence from this state is permanent or temporary, whether it is voluntary or 'involuntary, the reason for giving this remedy to the creditor is the same. The 23d section gives the remedy, and is as follows: “ That the estate, real and personal, of every debtor who resides out of this state, and is indebted within it, shall be liable to be attached and sold for the payment of his debts, in like manner in all respects, as nearly as may be, as the estates of debtors residing within this state.” The question, I think, is, where was his actual residence, not his domicil. And whether his national character was changed or not, does not seem to me to affect the true question.

The act is intended to give a remedy to creditors, whose debtors cannot be served with process. If the debtor absconds or secretes himself, then an attachment issues. If he notoriously resides abroad, then the attachment issues. But if he goes openly to another state or country, and remains there doing business, but intending to return when his convenience will permit, he is not, as his counsel contends, an absent debtor, and his property cannot be touched’.. He may become a bankrupt abroad, as has Alexander Thompson ; his property may be taken by his partners, and used by them, or transferred to his foreign creditors, as is attempted in this case; and the creditor here may stand by and acknowledge and regret the insufficiency of our laws, but the property cannot be touched. Surely the legislature never intended such a state of things. They have provided that a person confined in the state prison for life, may be proceeded against as an absconding debtor. Such a debtor has, in truth, not absconded, but he is out of the reach of the process of law, and therefore ’ the legislature has provided that his property shall be liable to the payment of his 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. A debtor, therefore, by residing abroad, without declaring an intention to remain, might prevent his creditors from ever collecting their debts. In my judgment, the present case comes not only within the spirit of the act, but also within its terms.

The order of the judge awarding a supersedeas, should bo reversed.

Footnotes

*

The First Judge of the New-York common picas.