Robinson v. Morrison

2 App. D.C. 105, 1894 U.S. App. LEXIS 3211

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

This is an appeal from a judgment quashing a writ of attachment.

August 16, 1892, Conway Robinson sued William H. Morrison in the Supreme Court of the District, upon a note for $880.97. At the time of filing suit, he procured a writ of attachment to issue, which was levied on certain personal property of defendant. The ground of attachment set forth in the affidavit

Footnotes

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* is that defendant Morrison “resides near Hyattsville, Prince George’s county, in the State of Maryland, and is a non-resident of the District of Columbia.”

Defendant filed a motion to quash the attachment, supported by affidavit,* as required by. Sec. 783, R. S. D. C., which reads as follows: “ If the defendant, his agent or attorney, shall file an affidavit traversing the plaintiff’s affidavit, the court shall determine whether the facts set forth in the plaintiff’s affidavit are true, and whether there was just ground for issuing the writ of attachment; and if the facts do not sustain the affidavit, the court shall quash the writ of attachment or garnishment; and this issue may be tried by a judge at chambers on three days’ notice.”

The motion was heard upon affidavits* filed on both sides, and the learned justice below, being of the opinion “ that the defendant is not a non-resident in the sense of the law relating to attachments,” ordered the writ quashed.

The appellant contends that it was error to hear the motion to quash upon affidavits only. Necessarily, in a summary proceedings of this kind, much must be left to the discretion of the trial justice with regard to the manner of the proceeding. However, we think the statute contemplates the better and safer rule, upon the demand of one of the parties, requiring the witnesses to be examined orally before the court. Campbell v. Morris, 3 H. & M’H., 553; Lambden v. Bowie, 2 Md., 334; Hardesty v. Campbell, 29 Md., 533.

The question is of no practical importance in this case because there is no real conflict in the facts contained in the several affidavits. The issue is' not of fact but of law. The defendant Morrison had resided with his family in the city of Washington for many years, where he conducted a large business as a publisher and seller of books. About two years before the attachment he took his family to a place in Maryland just outside the District of Columbia, where they were living at the time. The defendant remained with his family at night, coming into Washington every morn-, ing, when not sick, or absent on business, and remaining at his place of business, during business hours, where he was accessible to all persons, and amenable to the process of the District courts. He had sold the Maryland home a short time prior to the commencement of the suit, but remained therein with his household furniture, which was worth about $500. The remainder of his property consisted of his stock of books, &c., in the Washington store, valued at about $20,000. He was not engaged in business anywhere else, and kept his bank account in Washington exclusively. The foregoing facts are taken from Morrison’s own affidavit. To these he added the conclusion that there was no intention on his part to “ cease to be a citizen and resident of the District of Columbia.”

It appears from plaintiffs affidavits, and was undenied, that defendant had once owned valuable real estate in Washington, as well as a family home, but had disposed of the same before removing to the Maryland home, which he had taken in part payment in one of his sales of real estate. In a mortgage made May 27, 1891, and in a conveyance made of the Maryland property, August 13, 1892, defendant is recited as of Prince George’s county, Maryland. It was also shown that defendant and his son registered in Prince George’s county, Maryland, as voters, in 1891, and voted at an election held therein. Under the laws of Maryland, no one could register as a voter without first making oath that he had been a citizen and resident of the State for one year and of the county for six months.

It appears from the record, that the defendant was served with a summons on the day the suit was filed in the District of Columbia, by the marshal thereof.

Fillmore Beall filed a petition intervening in the proceedings to quash, alleging that on August 16, 1892, defendant Morrison made an assignment to him for the benefit of creditors, and repeating substantially the facts set forth in Morrison’s affidavit with respect to his residence.

It seems that the property was attached just before the deed of assignment was executed and delivered, wherefore the assignee stands in no better position than his assignor.

The question before us involves the consideration of the object and policy of the attachment law of the District, as indicating the sense in which the word non-resident is therein used. The contention of appellee, which prevailed in the court below, is, that it is the object of the law to furnish a remedy against a debtor’s property in cases only where, through his absence or concealment, etc., the ordinary process of the court cannot be served upon him; and that the word non-resident, as used in the act, does not apply to one who, while he may remain every night with his family outside the District, is daily -within it attending to his business, and subject to service of process at any time each day. In other words, it is contended that there is a “ commercial residence,” so to speak, which exempts one, situated as Morrison, from liability to attachment as a non-resident in the ordinary sense.

Unquestionably, the object of the process originally was to coerce the defendant into submitting himself to the jurisdiction of the court, where he might also be compelled to enter into special bail. This done, the writ having accomplished its purpose might be dissolved. This object doubtless had its influence upon the earlier legislation of the older States, in some of which possibly there may not have been a change of policy. But the great tendency of all late legislation, especially since the general abolition of imprisonment for debt, has undoubtedly been towards the enlargement and extension of remedies against the property of defendants in actions. This departure in policy and the reasons therefor, are strongly set forth in a leading case in Maryland. Barr v. Perry, 3 Gill, 315, decided in 1845.

The object now is not so much to coerce the defendant into making his appearance, as it is to give the plaintiff security for his demand. “ If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rent, the only effect of which is to subject the property attached, to the payment of the demand which the court may find to be due to the plaintiff.” Cooper v. Reynolds, 10 Wall., 318.

The attachment act of the State of Tennessee, upon which that case was founded, is not nearly so plain in its purpose to give security for the debt through the property attached, as is the statute of the District of Columbia, which governs this case. Sec. 782, R. S. D. C., states three grounds for the issuance of the writ: “ First, that the defendant is a nonresident of the District; or, second, that the defendant evades the service of ordinary process by concealing himself, or by withdrawing from the District temporarily; or, third, that he has removed, or is about to remove, some of his property from the District, so as to defeat just demands against him.”

Sec. 783, which has been quoted above, provides how the attachment, when regularly issued, may be quashed by disproving the facts upon which it has been obtained; and seems thereby to exclude the idea that there is any other mode in which the writ may be quashed and the property discharged.

Had the right to attach the goods been given merely to compel the appearance of the defendant, it would seem that the act should so declare. Secs. 784, 785, and 786, and others following them in order, seem to us to remove all doubt as to the real object of the act.

“Sec. 784. The thing attached shall not be discharged from the custody of the officer seizing it until the defendant shall deliver either to the officer or to the clerk, to be filed in the cause, his undertaking, with sufficient surety to satisfy and pay the final judgment of the court against him.

“Sec. 785. If the defendant fail to execute such undertaking, the court may sell the thing attached whenever it is satisfied that it is in the interest of the parties it should be sold before final judgment.

“ Sec. 786. In case the defendant be found liable to the plaintiff’s claim, in whole or in part, the final judgment shall be that the plaintiff recover against the defendant and his sureties.”

Sec. 787 provides for service by publication upon defendants who cannot be found, in suits by attachment and others.

Sec. 791 abolishes the holding of persons to bail in "actions of debt and the like.

The view we have taken of the object of these sections of the Revised Statutes is in accord with that of the General Term of the Supreme Court of the District. Giddings v. Squier, 4 Mackey, 49.

In other jurisdictions, under statutes of the same general purport as ours, it has generally been held that their purposes were not fulfilled by the ability to make personal service of summons upon the defendant at the time of instituting the suit and suing out the writ of attachment. Jackson v. Perry, 13 B. Mon., 231; Pike v. Wassell, 94 U. S., 711; Chase v. Bank, 56 Pa. St., 355; Breed v. Mitchell, 48 Ga., 533; Barry v. Bockover, 6 Abb. Pr., 374; Chaine v. Wilson, 8 Abb. Pr., 78; Fielding v. Lucas, 87 N, Y., 197; Burcalow v. Trump, 1 Houst. (Del.), 363; Rayne v. T'aylor, 10 La. Ann., 726; Larimer v. Kelley, 10 Kan., 312.

The word non-resident, as used in our statute, must be taken in its ordinary and usual signification. A man’s residence is where he actually dwells at the time, not merely where he may carry on business regularly. A man’s domicile may be in one State, his residence in another, and his place of business in a third. A man’s home, the place where his wife and children actually reside, is ordinarily, and yet not necessarily, his place of residence. He may for purposes of business establish himself in another State for an indefinite period, away from his family, and remain there so continuously as to make himself a resident thereof for all the purposes of the attachment laws generally. But he cannot be a resident of two distinct places at the same time. If defendant had provided himself a dwelling place in Washington, living there instead of with his family in Maryland, and only going to them occasionally, as a visitor, he might be considered a resident of the District within the meaning of the act. But that is not the case made in the record before us. He removed his family to a home in Maryland for an indefinite period, and lived there with them, spending each night there and having no dwelling or sleeping place in Washington. He spent the hours of business only in Washington, while he spent his nights and Sundays in Maryland. He registered and voted in Maryland, and in order to do so was compelled by law to make oath to both residence and citizenship. Under the evidence in this case, could he have been held an illegal voter?

Suppose, for instance, that he had been sued and attached in Maryland on the same day, could he have been held a non-resident of that State under the evidence in this case? Would the mere fact that he spent each day but Sunday in Washington attending to his business, and could only be personally served with process in Maryland at night, constitute him a non-resident of that State? We think clearly not.

If, then, defendant is to be held as a resident of the District, at the time the writ was issued, it must be on the sole ground that there is such a thing as a “commercial” or “ trade ” residence, created solely by the conduct of business which is co-existent with actual residence elsewhere, and yet in law superior thereto. To give this meaning to our attachment statutes would be making laws instead of interpreting them. Grant that it would be just and fair that such a distinction should be made in the interest of those whose sole business is carried on in this District, while they actually reside near by in adjoining States; but still the power so to do is legislative, and not judicial. We must interpret the law as we find it; that is to say, give it full force and operation where there is no reasonable room for construction, regardless of any hardship that it may work.

The view we have taken of this question is, we think, sound in principle; unquestionably it is supported by the great weight of authority. In New Jersey the question has been thoroughly considered as well as argued with great force in respect both to the policy of the law and the meaning of the word non-resident, under statutes substantially like our own. In Perrine v. Evans, 35 N. J. L., 221, the defendant carried on his business in New Jersey, where he was to be found daily during working hours. His wife boarded at a house in New York and he went there every night. He had no home and no lodging place in New Jersey. It was held that attachment rightly issued against him as a nonresident of New Jersey, notwithstanding he might have been served with a process therein. The court said: “A residence is always a place of abode. It never denotes simply the place where a man is, or happens to be. . . . To contend that to be in a State signifies the same thing as to reside in a State is to raise a quarrel with all usage and every lexicon. If there is any fixedness of meaning in words, the description in this statute of ‘ debtors who reside out of this State,’ means debtors who have no abode in this State. In this connection, the language used, as it seems to me, is indisputably clear, and the consequence is that there is no room for judicial construction.” Again, it was said in the same opinion: “ It is obvious that the fact that the debtor has a place of business in this State is altogether aside from the inquiry, as a place of business is not, in any possible sense, a residence and is a circumstance of no benefit to the creditor.” To the same effect, see Stout v. Leonard, 37 N. J. L., 492; Baldwin v. Flagg, 43 N. J. L., 495.

In Rayne v. Taylor, 10 La. Ann., 726, the defendant in attachment had for several years maintained a business house in the State, where he was often to be found, and where in his absence an agent was always to be found who was authorized to be served with process for his principal. His claim of exemption from attachment by reason of his “ commercial domicile” or residence, was overruled. The court said: “The law makes no distinction between the different classes of non-resident creditors, and we are unable to per ceive upon what principle of reason the defendant in this case can claim an exemption from the ordinary operation of our attachment laws.”

On account of peculiar conditions prevailing in New York, this question has been often before the courts of that State, and it has been generally held, with possibly one exception, by the Supreme Court thereof, that the fact that a man carries on his business exclusively and continuously in the State, and stays there daily during business hours, does not make him a resident thereof within the meaning of the attachment law. Barry v. Bockover, 6 Abb. Pr., 374; Chaine v. Wilson, 8 Id., 78; Lee v. Stanley, 9 How. Pr., 272; Bache v. Lawrence, 17 Id., 554; Murphy v. Baldwin, 41 Id., 270; S. C., 11 Abbott Pr., N. S. 409.

The same doctrine is now firmly established by the Court of Appeals, in Wallace v. Castle, 68 N. Y., 370, wherein Towner v. Church, 2 Abb. Pr., 299, the exceptional case mentioned above, is expressly overruled, in so far as it expressed an opinion to the contrary. See also Fielding v. Lucas, 87 N. Y., 201, where, under a statute conferring power upon the marine court to' issue attachments on the ground of non-residence in the county of New York, it was held that attachment rightfully issued against one living in Brooklyn, whose business was regularly and exclusively carried on in the county of New York.

In Cowardin v. Universal Ins. Co., 32 Gratt, 447, it was held, that a foreign insurance company, doing business in Virginia, under the law of that commonwealth, permitting the same and regulating the exercise of the right, and requiring it to keep an agent there, upon whom service in suits against the corporation could be obtained, was, nevertheless, a non-resident of Virginia within the meaning of her attachment laws.-

We attach no importance to the declaration in defendant’s affidavit that his removal to the Maryland home was “ without any intention to cease to be a citizen and resident of the District of Columbia,” because on a question of residence intention cannot control the fact. In re Thompson, 1 Wend., 45; Frost v. Brisbin, 19 Wend., 11; Stout v. Leonard, 37 N. J. L., 494; Risewick v. Davis, 19 Md., 96; Greene v. Beckwith, 38 Mo., 384; Lawson v. Adlard, 46 Minn., 243; Hanson v. Graham, 82 Cal., 631.

Residence, in the sense of the attachment laws and domicile, as bearing on the question of citizenship, are two distinct and very different things. Actual dwelling for a sufhjcient space of time constitutes such residence, without regard to intention expressed or concealed^ while domicile is chiefly a question of intention.

In this connection it may be said, too, that the fact of defendant’s registration and exercise of the right of suffrage in Maryland would be a very strong, if not controlling, circumstance to show that his domicile, as a citizen, was in Maryland also, as well as his residence, if that question, too, were in issue here.

It has been suggested, on the argument, that pending the motion to quash the attachment the goods attached were taken from the possession of the marshal by some proceeding instituted by the assignee of defendant, who had intervened, as we have seen, in the proceedings to quash.

There is nothing in the record with regard to this proceeding, and we are not called upon to determine it, or to express an opinion whether property already in the custody of the law, through valid process, can again be seized under process issuing from the same court even.

Be that as it may, the right of plaintiff to condemnation of the property seized under his writ cannot be affected by any subsequent proceeding with respect to it, to which, at least, he is not a regularly made party. It is the marshal’s concern to take care that plaintiff’s security be not lost.

For the error in quashing the writ of attachment the judgment must be reversed, with costs to the appellant, and the cause remanded for further proceedings in accordance with this opinion; and it is so ordered.

Mr. Justice Morris dissented.

Affidavit in support of attachment. District of Columbia, ss: I, Leigh. Robinson, having been first duly sworn according to law, do depose and upon oath say that I know Conway Robinson, Junior, who is the plaintiff in the above-entitled cause, and that he is my brother, and that I also know William H. Morrison, who is the defendant in said cause ; and, deposing further, this affiant also upon his oath says that on the 2nd day of January, A. D. 1891, said William H. Morrison, by the name of W. H. Morrison, made his certain promissory note, dated Washington, D. C., January 2, 1891, and thereby promised to pay to the order of this affiant’s said brother, by the name of Conway Robinson, Jr., one year after date, eight hundred and eighty and dollars, at the National Bank of the Republic, value received, with interest at six per centum per annum, and that said Morrison received full value from this affiant’s said brother for said promissory note, and before its maturity delivered the same to this affiant’s said brother, for full value, in the usual and regular course of business, and that said promissory note is now overdue and unpaid, and that at its maturity said William H. Morrison did not pay the same or any part thereof, and that the same, both principal and interest, now still remains wholly due and unpaid and unsatisfied, and that said note and the non-payment thereof aforesaid constitutes and is the said plaintiff’s cause of action in the above-entitled cause, and that the plaintiff’s declaration in said cause declares upon the same ; and, deposing further, this affiant also upon his oath says that said plaintiff in the above-entitled cause (who is this affiant’s said brother) has a just right to recover against said William H. Morrison, the defendant in said cause, what said plaintiff claims in his declaration in said cause, namely, the sum of eight hundred and eighty and dollars ($880.97), with interest thereon from January 2, A. D. 1891, at the rate of six per centum per annum besides the costs of said suit, exclusive of all set-offs and just grounds of defense.

And, deposing further, this affiant also upon his oath says that said William H. Morrison, the defendant in the above-entitled cause, resides near Hyattsville, in Prince George’s county, in the State of Maryland, and that said defendant in said cause, William H. Morrison, is a nonresident of the District of Columbia.

This affiant further says that the grounds upon which said- plaintiff in the above-entitled cause (who is this affiant’s said brother) bases said plaintiff’s action in said cause and the grounds upon which this affiant’s said brother bases the affidavit hereto annexed are the same matters and things which this affiant has set out and stated above in this affidavit, and that the same are truly and correctly stated above in this affidavit, and that the matters aird things stated in this affidavit this affiant knows to be true. Leigh Robinson.

Subscribed and sworn to before me this 16th day of August, A. D. 1892.

J. R. Young, Clerk,

By R. Willett, Assistant Clerk.

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Affidavit supporting motion to quash attachment. District of Columbia, ss: I, William H. Morrison, on oath say that I am the defendant in the above-entitled cause; that I removed with my parents to the city of Washington, District of Columbia, about 50 years ago, wheir I was about 7 years of age, and that I have ever since continued to be a resident of the said city ; that I have been for more than thirty years last past engaged in business as a bookseller in said city, in the conduct of which I have been in daily personal attendance, the said book business having been conducted for many years at No. 475 Pennsylvania avenue northwest, and thereafter at No. 1334 F street northwest, in said city ; that I have never engaged in business elsewhere than in the said city, where, continuously and exclusively, my bank accounts have been kept and all my business transacted; that the only color for the claim made in this case that I am a non-resident of the District of Columbia consists in the fact that a little more than two years ago, having two small children in ill health and owning a small tract of land just over the District line, I removed my family to the said tract of eight acres, where they have since remained, but without any intention upon my part to cease to be a citizen and resident of the District of Columbia ; that I have been in daily attendance during the whole of the business days at my said book store throughout said period, subject only to occasional absences on account of business or sickness in the family, and engaged in the open and visible conduct of my said business, where I have been at all times accessible to all persons having business with or desiring to see me ; that all my capital has been and at the date of the attachment was invested in my business in Washington, except so much of it as was invested in the said tract of land in Maryland, and that prior to said attachment the said tract of land had ceased to be mine, having been by me sold and the title thereto conveyed to the purchaser, who had made full payment therefor, so that at the date of said attachment all my property, except my household and kitchen furniture, was within the District of Columbia; that my said household effects do not exceed in value the sum of $500, while the capital invested in my business in Washington I estimate to be not less than $20,000 ; and I deny that I am or at any time since my early childhood have been a non-resident of the District of Columbia. W. H. Morrison.

Subscribed and sworn to before me this 18th day of August, A. D. 1892.

J. R. Young, Clerk,

By R. Willett, Assistant Clerk.

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Counter-affidavits for attaching creditors. District of Columbia, ss: I, Conway Robinson, Jr., having been first duly sworn according to law, do depose and upon oath say that I am the plaintiff in the above-entitled cause, in which William H. Morrison is the defendant; that by a deed dated August 2, A. D. 1888, and recorded on August 18, A. D. 1888, in Liber No. 1340, folio 115 et seq., of the land records of the District of Columbia, the said William H. Morrison and Martha K. Morrison, his wife, sold and conveyed in fee simple to Frederick A. Tschiffely, Jr., for $28,000, the lot of ground and store thereon, being part of lot three, in square four hundred and ninety-one, in the city of Washington, in the District of Columbia : Beginning for the same at the southwest corner of said lot and running thence easterly on Pennsylvania avenue twenty-two feet eleven inches, thence at right angles with that width the whole depth of said lot; that said W’illiam H. Morrison had, prior to selling and conveying his said Pennsylvania avenue lot, only occupied and used the same as a book store and place of business and not as a home or place of abode or as a residence ; that before consummating and closing said sale of said Pennsylvania-avenue property, and pending the negotiations therefor, said William H. Morrison told this affiant, first, that he thought of taking, and afterwards that he had agreed to take a. house and lot near Hyattsville and Riverdale, Prince George’s county, Maryland, as a part of the consideration for his said Pennsylvania avenue property, and after closing the transaction told this affiant that he had done so; that by a deed, dated August 23, A. D. 1890, and recorded on August 25, A. D. 1890, in Liber No. 1512, folio 461 et seq., of the land records of said District, the said William H. Morrison and Martha K. Morrison, his wife, sold and conveyed in fee simple to Samuel Bieber and Samuel Bensinger, as tenants in common, for $31,500 the lot of ground and building thereon, fronting on 4J¿ street, being part of original lot 23, in square No. 491, in the city of Washington, District of Columbia, beginning on 4J¿ street at the northeast corner of said lot, thence on said street 56 feet to the southeast corner of said lot, thence west on the south line of said lot 75 feet 10 inches, thence north 12 feet, thence west 49 feet 2 inches to an alley in the rear, thence north on said alley 44 feet to the northwest corner of said lot, thence east 125 feet to the place of beginning, subject to a deed of trust recorded in Liber No. 1071, folio 479 et seq., of said records, the debt thereby secured being assumed-by said purchasers as a part of the consideration; that said William H. Morrison, prior to selling his said 45^ street property, had rented the same out, and at one time rented the same to the District Government, but did not and had not used or occupied the same for or as a home or residence for himself or for his wife or for any of the members of his family; that prior to the consummation of the sales of his said Pennsylvania avenue property and his said 41^ street property the said William H. Morrison told this affiant, as to each of those sales, that he intended to apply the proceeds which he received therefrom in paying others of his creditors to whom he was indebted and in reducing his indebtedness to them, and after each of those sales told this affiant that he had done so, with the exception of a small amount, possibly a few thousand dollars, which this affiant understood him to say he had paid out and expended in aiding and assisting his son, Walter C. Morrison, who had then recently married; that at the time of each of these sales the said William H. Morrison was indebted to this affiant and also to this affiant’s brother, Leigh Robinson, and had received full value from each of them for his said indebtedness to each of them respectively; that neither this affiant nor his said brother demanded, as each of them at that time had a right to do, that said William H. Morrison should pay anything to them or to either of them out of the proceeds of said sales or of either of said sales, nor did this affiant or his said brother ever so request, but, upon his statement that he would pay the purchase-money received from each of those sales to his other creditors, acquiesced in his doing so ; and afterwards, with the same wish to indulge him as far as possible, this affiant, on January 2, A. D. 1891, for said indebtedness then due from said William H. Morrison to this affiant and unpaid, took the promissory note sued upon in the above-entitled cause, and this affiant’s said brother, on the said 2nd day of January A. D. 1891, for the indebtedness then due from said William H. Morrison to him, took the promissory note sued upon in cause No. 33203 in this court; that upon the sale of his said Pennsylvauia-avenue property (No. 475 Pennsylvania avenue) the said William H. Morrison removed his place of business and book store from there up to No. 1334 F street N. W., in the city of Washington, D. C., which said store No. 1334 F street N. W., he used as a book store and place of business, and only as a book store and place of business, from that time up to the time of making an assignment on the 17th day of August, A. D. 1892, and that neither he nor his wife nor any of his family ever occupied or used the same as a home or place of abode or residence; that he' did not own said store No. 1334 F street N. W., but only rented the same; that when he was negotiating the sale of his said Pennsylvania-avenue property (No. 475 Pennsylvania avenue N. W.) said William H. Morrison told this affiant that he had concluded to sell the same and to rent a store on F street, and afterwards told this affiant that he had rented No. 1334 F street N. W. for his store ; that a considerable time ago (possibly two years or more ago) the said William H. Morrison told this affiant that he had con- eluded to move his things from his house No. 214 E street northwest, Washington, D. C., out to his house in Prince George’s county, Maryland, which he had gotten as a part of the consideration for his said Pennsylvania-avenue property, and to go out there to his said Prince George’s county house with his wife and family to live, and that by so doing he would be able to sell his house and Lot No 214 E street N. W., and to apply the proceeds thereof in reducing his indebtedness, and that he thought he would prefer living out there (in his said house in Prince George’s county, Maryland) anyway ; and shortly thereafter he told this affiant that he had moved out to his said house and lot in Maryland, and that both he and his family were pleased, and that they liked living out there very much; that by a deed dated June 8, A. D. 1891, and recorded on June 11, A. D. 1891, in Liber No. 159O1 folio 209 et seq., of the land records of said District, the said William H. Morrison and Martha K. Morrison, his wife, having sold the same, conveyed in fee simple to Eugene A. Rigway said William H. Morrison’s said house and lot on E street (214 E street N. W.), being part of original lot 4 and part of lot 5 of Margaret O. Diggs’ recorded subdivision of original lot No. 5 et at., in square No. 570, in the city of Washington, in the District of Columbia, beginning for the same at a point on the north line of said lot numbered 4, distant 14 feet 6 inches from the northeast comer of said lot, and running thence east 20 feet 9)^ inches, thence south 112 feet to an alley, thence west 20 feet 9 inches, and thence north 112 feet to the place of beginning; that there had been some delay between the sale and conveyance of said E-street lot — this affiant does not remember exactly how much; that before the said conveyance of his said house and lot No. 214 E street N. W. said William H. Morrison told this affiant that he had succeeded in selling the same and that he would apply the purchase-money in reducing his indebtedness; that this affiant and his brother, Leigh Robinson, neither demanded or requested that he apply any part of the purchase-money to the payment or reduction of their or either of their claims against him, but acquiesced in his paying the same to his other creditors (although they did not recognize or consider any of his other creditors as having any higher claims than their own)) and that they neither of them ever received any part of the purchase-money of said property j that the said William H. Morrison with his wife and family lived at said house, No. 214 E street northwest, for some years prior to and up to the time of moving his things and going with his wife and family to live at his said house and place in Prince George’s county, Maryland, as aforesaid; but that since that time he has not lived in said E-street house nor in the District of Columbia, but has continued to live with his wife and family at his said house and place in Prince George’s county, Maryland, ever since he first moved out there, and that from that time up to the present time said house in Prince George’s county, Maryland, has been the actual home, residence, and place of abode of the said William H. Morrison and of his wife and of the members of his family, at which he has regularly and continuously slept and passed his nights and Sundays and holidays with his wife and family, and to which as soon as his business engagements and duties permitted he went after finishing his daily business and labors to find the comfort, rest, and relaxation of a “ home ” with his wife and family, there to attend to his domestic duties ; and that from the time that said William H. Morrison moved out to his said house and place in Prince George’s county, Maryland, it has been continuously and regularly up to the present time the home, the place of abode, and the residence of the said William H. Morrison and of his wife and family, and that from the time that said William H. Morrison conveyed his said E-street house and lot as aforesaid he has certainly up to the present time had no home, residence, or place of abode whatsoever either in the city of Washington or in the District of Columbia; that during all of said period he had no place with any of the conveniences of a home, a place of abode, or of a residence in the city of Washington or in the District of Columbia; that during the whole of said period he has neither owned nor rented nor had in the District of Columbia any house, apartments, room or place of any kind (not even at his store, No. 1334 F street N. W.) to which he could take his wife or family or go himself to pass the night or to sleep or which in any way answered to the description of a home, a place of abode, or a residence; that said store, No. 1334 F street N. W., had no arrangements for being used and never was used for any purpose except as a store and place of business, and never was arranged for being used or used by himself, his wife, or family as a place to sleep or to pass the night or as a home, place of abode, or residence ; that shortly before— that is to say, a few days before — the institution of this suit said William H, Morrison told this affiant that he had two deeds of trust upon his sard house and lot in Prince George’s county, Maryland; that he first said it was encumbered for $3,000, and afterwards said it was more than that; that he did not remember the amount of the notes secured upon said property and could not then say to exactly what amount it was encum bered, but could and would ascertain by the next day ; that this conversation occurred upon the Thursday evening immediately preceding the institution of this suit — that is to say, upon August n, 1892 — and upon this affiant then offering, along with his brother, Leigh Robinson, to take a third deed of trust upon his said house and lot in Prince George’s county, Maryland, if he would let us know the amount of the encumbrances thereon and there was any margin in his equity of redemption therein, he, the said William H. Morrison, made an appointment for the next day, Friday, at his store, No. 1334 F street N. W., at 2.30 p. m., to meet us, when he was to let us know the amount of the encumbrances upon his said house and lot in Prince George’s county, Maryland, and what he would do; that said William H. Morrison did not keep his said appointment, and this affiant, although he endeavored to see him and sent him written and verbal messages to see affiant, designating time and place, has never seen him since; that Boyd’s Directory of the District of Columbia for the present year, 1892, gives said William H. Morrison’s “h” — meaning house or home — as being 'at “ Riverdale, Md.that affiant says that certainly from the time of said William H. Morrison’s conveyance of his said house and lot on E street, in this city (No. 214 E street N. W.), if not from the time that said Morrison moved his things from his said E-street house to his said house and lot in Prince George’s county, Maryland, and went out there to Prince George’s county, Maryland, to live, he, the said William H. Morrison, has been a non-resident of the District of Columbia, and has been an actual resident of and has had his actual and his legal residence in Prince George’s county, Maryland, and has been subject to attachment in the District of Columbia as a non-resident of said District.

That in a certain mortgage dated and acknowledged on May 27, A. D. 1891, and recorded on June 3, 1891, in Prince George’s county, Maryland, in Liber J. W. B. No. 17, folio 714 et seq., one of the land records of said Prince George’s county, Maryland, and also in a certain deed dated and acknowledged on August 12, A. D. 1892, and recorded on August 13, 1892, in Prince George’s county, Maryland, in Liber J. W. B. No. 21, one of the land records of said Prince George’s county, Maryland, the said William H. Morrison and Martha K. Morrison, his wife (the grantors in said mortgage and in said deed and who each of them executed and acknowledged the same), recite themselves as being of Prince George’s county, Maryland, as will more fully and at large appear by duly authenticated copies of the records of said mortgage and deed (hereby expressly referred to as parts hereof and asked to be considered in opposition to the quashing of the attachment in this case), marked respectively Exhibits “A” and “B” for identification and filed in this cause and in cause No. 33203 in this court on the day this affidavit is filed herein; that said William H. Morrison has owned no real estate in the District of Columbia since he conveyed away his said E-street property as above mentioned. Conway Robinson, Jr.

Subscribed and sworn to before me this 27th day of August, A. D. 1892.

J. R. Young, Clerk.

Exhibit “ A” (filed August 27, 1892) is a duly certified copy of the record of amortgageby “ William H. Morrison and Martha It. Morrison, his wife, of Prince George’s county, Maryland,” to “ Frederick A. Tschiffely, Jr., his heirs and assigns,” dated May 27, 1891, and recorded on June 3, 1891, in Prince George’s county, Maryland, in Liber J. W. B. No. 17, folio 714 et seq., one of the land records of said Prince George’s county, Maryland, conveying said William H. Morrison’s said house and lot in Prince George’s county, Maryland, to secure $2,000 to said Frederick A. Tschiffely, Jr.

Exhibit “B” (filed August 27, 1892) is a duly certified copy of the record of a deed by “ William H. Morrison and Martha K. Morrison, his wife, of Prince George’s county, Maryland,” to “ Frederick A. Tschiffely, Jr., of said county and State,” dated August 12, 1892, and recorded on August 13, 1892, in Prince George’s county, Maryland, in Liber J. W. B. No. 21, one of the land records of said Prince George’s county, Maryland, conveying said William H. Morrison’s said house and lot in Prince George’s county, Maryland, to said Frederick A. Tschiffely, Jr., in fee simple for the consideration of $6,000.

I, Thomas Brooke, on oath say that I am acquainted with William H. Morrison, the defendant in the above-entitled cause, and know that for several years past he has been a resident of Prince George’s county, Maryland. Affiant was the registration officer of Prince George’s county, Maryland, until last November and was the last registration officer of said county. Affiant registered the names of the said William H. Morrison and one of his sons as voters in said county. Affiant saw them at the polls on the day of the election. Affiant registered no one who did not first make oath that he had been a resident and citizen of Maryland a year before registration and of Prince George’s county for six months, and affiant did administer such an oath to the said William H. Morrison and his son. Thos. Brooke.

Subscribed and sworn to before me this 23rd day of August, 1892.

J. R. Young, Clerk,

By R. Willett, Assistant Clerk.