Austin v. Grout

PkeNtiss, J. delivered the opinion of the Court.' — The act, directing the proceedings against the trustees of concealed or absconding debtors, declares, that if any person or persons shall have in his or their possession, any money, goods, chattels, rights or credits, of any person who shall have secretly absconded from this state, or who shall keep concealed within the same, any creditor may cause such person or persons, having such money, goods, chattels, rights or credits, to be summoned astrus-tee or trustees of such absconding or concealed debtor, &c.— (Com. St at. p. 149. 5.1.,) By the terms of this act, no proceeding could be had under it against a debtor, unless he had ■secretly absconded from this state, or kept concealedpuithin it. — - Its provisions, however, are extended by a subsequent act, which declares, that if any inhabitant: of this state shall remove out of this state, and leave any money, goods, chattels, rights or credits, to him belonging, with any inhabitant of this state, he shall be deemed an absconding debtor, within the meaning of the previous act. — (Comp, Stat. p. 1-56. s. 1.) To bring the case before us within the provisions of the law, as extended by the latter act, it is necessary that Palmer, the debt- or, should have been an inhabitant of this state ; and unless, on the facts stated in the exceptions, he can be so considered, he cannot be treated as an absconding debtor. An inhabitant of this state is one who dwells or has his home here. Palmer, it appears, had a family, and a fixed and permanent place of residence,in the state of JYew-Yor/c. His home or domicil was there; and he never was within this state, except occasionally and for mere temporary purposes, staying three or four weeks at one time, and a few days at two other different times, and returning [492] each time, after having accomplished his business, to his residence in JYew-York. As was observed by lord Thurlow in the case of Bruce vs. Bruce, reported in a note in 2 Bos. and Pull. 229, a person travelling, or on a visit, or at a place for some time on account of his health or business, does not acquire a domicil. It is very clear, therefore, that as Palmer was merely transiently within this state, having no dwelling or home here, he was in no sense an inhabitant of this state, and, consequently, cannot be considered an absconding debtor within the meaning of the act. Mien, and Royce & Hunt, for plaintiff. Mdis & Davis, for the defendant, Palmer. Judgement reversed, and cause remanded to the county court for a new trial.