Hurlbut v. Seeley , 11 How. Pr. 507 ( 1855 )

By the Couet.

Mitchell, J.

The defendant’s property was attached on the ground of his being a non-resident of this State. The original affidavits were in general terms, alleging that the defendant had established himself in Wisconsin and became a resident there; and were prima facie sufficient. The defendant moved to set aside the attachment, and produced various affidavits to show that although he had gone to Wisconsin, it was only for a temporary purpose. It was understood on the argument that the real question was, whether the defendant had gone away on a single adventure, to dispose of certain goods, and remained with that single purpose, or had gone or remained there with the intention not only of selling what he took with him, but of establishing there a business which he himself should there superintend. He had a store at Hornellsville in this State and another in Wellsville, and owned real estate here, and had a home here where he and his wife and children lived. Business falling off very much, he concluded to close the store at Wellsville and to send his principal clerk with a portion of the goods from both stores, and some others to be purchased, to Hudson, Wisconsin, to dispose of them there, where sales, though at retail, were more ready, and for cash; and to retain his store at Hornellsville and remain there with his whole family. This was approved by his creditors, and, among others, by the plaintiffs. This plan he afterwards changed, so far, only, as that he should go in place of his clerk to Hudson. He left this State in September, 1853, intending to return in the spring. Spring came, and he found his sales not so ample as he had hoped, and he wrote that he would return in June. After that he wrote that he would without fail, and whatever the result might be, return about the first of July. Accordingly, on the 30th of June he was on his way, in pursuance of that intention, to this State. Both his lawyers, who are partners, his physician, his principal clerk, his foreman and two other clerks, and some acquaintances, with his mother and his wife, all concur that his original intention was that he should go to Hudson only to open and commence sales; and with the sole purpose of disposing of the goods and raising money to pay his debts ; and that if the business there should be deemed profitable enough to justify the establishment of a branch there, then that Farrell, his chief clerk, “ should go and take charge of such branch business, and continue it; and that the defendant himself should conduct the principal business at Hornellsville” in this State ; and that he never expressed nor did any of them understand that he ever formed a different conclusion, except his intention to remain until about the first of July.

All this shows as clearly as could be, a fixed design to go to Wisconsin only for the purpose of selling out the one adventure, and if a branch should be established there, to have it under the charge of a clerk, and not of the defendant; and for the defendant to return to this State. In opposition to this are produced the defendant’s letters, and the strongest expression there found against him is one, when speaking of his efforts to prevent loss to his creditors, he says, “ to avert the fulfilment of this picture, I have forsaken, for the time being, home, wife, children, and friends, and have commenced business upon the very outskirts of civilization.” This, without any explanation, might show that the defendant had gone there to establish business and to conduct it himself; but it is the only expression to that effect, and on its face it shows that his absence was to be only temporary, even if the business was to be permanent. For he limits the duration of his absence in saying, “ I have forsaken, for the time leing, home, wife, children and friends.” The concurrent affidavits of wife, mother, counsellors, clerks, physicians and acquaintances, are not to be overweighed bv that single expression; and they show that he was to be absent only to sell out the adventure which he took with him, or if he found the business there good, then to establish a branch there, and return home and leave the branch in charge of his clerk.

Then, as the special term found, he was still a resident of this State, and only temporarily absent for a single purpose, which, from its nature, would not Tieejp him away from the process of our courts.

The order at special term should be affirmed, without costs.