Chaine a. Wilson. That examination is, I think, sufficient to show that those cases (even that of Haggart a. Morgan, in the Court of Appeals), as it did not control the case before the learned judge, could not govern the present one. Still, the last-mentioned case, although the decision was upon the ground of the execution of the bond having concluded the party, may, perhaps, be treated as deciding, that an absence of three years from an acknowledged domicile, and dwelling for that period in another place for business purposes, makes the party a non-resident of the first place, within the statute. It would be difficult to contest the truth of the converse of this decision, and to avoid holding, that if a party was dwelling habitually in New York, for the same period, and solely for business purposes, he would be deemed a resident of New York, although his domicile was clearly elsewhere. But the principle of these cases opens the question of the nature, object, and duration of absence or dwelling, which is to control each particular case. It would not be pretended that the dwelling for a week for a special purpose in New York made a party a resident, whose fixed habitation or domicile was elsewhere. So we perceive that if the domicile does not supply a decisive rule, neither does the mere abiding within the place at the time of the service of the writ, furnish it; and thus each case must be left to the operation of all the rules usually applied to determine similar questions. When this is conceded, then the case is open to the important consideration urged by Mr. Justice James, that the attachinent under the Code differs from that under the Revised Statutes in this, that it is not a process for the commencement of an action, but is an arrest of the party's property in the nature of bail, for the payment of such judgment as he may obtain; that the statute was intended to give a remedy to creditors, whose debtors being absent could not be served with process, though domiciled within the State. The case of Houghton a. Ault,* decided at special term by • HOUGHTON a. AULT.-(Supreme Court, Fourth District, at Chambers, January, 1858. Affirmed on appeal at General Term, May, 1858.)-This was a motion to vacate an attachment issued on the ground that the defendant was a non-resident. Chaine a. Wilson. Justice James, was affirmed at general term of the fourth district. The facts were these: the defendant, a foreigner, had a family residing in Portsmouth, Canada, and there owned a ship The facts are stated in the opinion. JAMES, J.-It is conceded that the facts set forth in plaintiff's affidavit are sufficient to warrant the issuing of the order of attachment; it showed the indebtedness of the defendant upon contract, the amount due, and stated that he was not a resident of the State, but resided in Kingston, Canada West. The defendant now moves, before the officer who granted the order, to vacate the same, and offers to read counter-affidavits in support of his motion. The plaintiff objects to such affidavits being received. Previous to the last amendment of the Code, there was considerable conflict of opinion and authority on this point. It was held in Conklin a. Dutcher (5 How. Pr. R., 386), that such affidavits could not be received; and that case was followed by White a. Featherstonhaugh (7 lb., 357); Bank of Lansingburgh a. McKie (7 lb., 560); Niles a. Vanderzee (14 lb., 547); while the converse was held in Killian a. Washington (2 Code R., 78); Morgan a. Avery (7 Barb., 656); New York & Erie Bank a. Codd (11 How. Pr. R., 221); Farmer a. Walter (13 lb., 348), and other cases. The last Legislature, in its amendment of section 241 of the Code, enacted that the defendant might, in all cases, move to discharge an attachment, as in other cases of provisional remedies. The provisional remedies given by the Code (tit. 7), are, Arrest and Bail; Claim and Delivery of personal property; Injunction and Attachment. In cases of arrest and bail, and injunction, the defendant may move to vacate the order on the original papers, or upon counteraffidavits of the moving party (Code, §§ 204, 205, 225); and the amendment to section 241, was no doubt intended, and did confer upon defendants, in attachment cases, the right to use affidavits to show the improvidence of the order on a motion for its discharge. I shall therefore hold, that the affidavits offered in behalf of the defendant are properly receivable on this motion. The next question is, was the defendant a resident or not, within the State of New York, at the time of issuing the attachment? Under the Code an attachment is not a process for the commencement of an action; it is an order in the action, for the arrest of the debtor's property, in the nature of bail for the payment of such judgment as the plaintiff may obtain; it may issue, in a proper case, at the time of commencing the action, or at any time afterwards. In these respects, it is entirely unlike the attachment provided by the Revised Statutes, that being the commencement of a proceeding, instituted and conducted out of court, before an officer who derived his power in the matter from the statutes. The main facts in the case are these: The defendant, a foreigner, having a family residing in Portsmouth, Canada, and there owning a shipyard, comes to Ogdensburgh and leases a marine railway, on the 10th of July, 1856; in that lease he covenants not to carry on ship-building at any other place than the yard leased, after the expiration of six months; he enters, immediately, into the possession of the yard, and continues to carry on business there, until the issuing of this attachment on the 1st day of December, 1857. During this period of seven Chaine a. Wilson. yard. He leased a marine railway at Ogdensburgh, in July, 1856, began business there, and carried it on until the issuing of an attachment in December, 1857. During this period he teen months, the defendant was most of the time at Ogdensburgh, his family remaining at Portsmouth, keeping house. The defendant, notwithstanding his covenant in his lease, continued work in his shipyard at Portsmouth, until some time in the month of September, 1857. In the mean time, he became largely indebted at Ogdensburgh. About the time of taking his lease, he mortgaged to his lessors the timber, spike, oakum, iron, blacksmith's, and shipwright's tools, shopfurniture, &c., as security for the payment of certain notes to the amount of $4340.88. In April, 1857, he assigned his interest in his lease, and all his propperty as security for indorsements made and to be made. His whole indebtedness at Ogdensburgh appears to be about $22,000, and his assets about $5000. He frequently represented himself as a non-resident, and stated that his property was liable to attachment; that by the terms of his lease, he was only to pay so much on the tonnage of each vessel drawn out and repaired, as rent. Upon these facts, the defendant insists that he is a resident of the State of New York, within the meaning of the attachment law, and that his property is not subject to arrest by order of the court. To sustain this proposition, his counsel cited Haggart a. Morgan (4 Sandf., 198; S. C., on appeal, 1 Seld., 422). In the matter of Thompson (1 Wend., 45); Towner a. Church (2 Abbotts' Pr. R., 299); Bartlett a. The City of New York (5 Sandf., 44). The case of Haggart a. Morgan was an action on a bond given to release certain property seized by virtue of an attachment issued under the Revised Statutes. On the trial, the sureties offered to show that the defendant in the attachment was a resident at the time of issuing the same, by proving that his house was in the city of New York; that he was housekeeping there at that time, and had been for many years; that his absence at New Orleans was temporary, being necessarily detained there by a lawsuit; that he had been so detained during his whole absence of three years. The court refused the offer,-1st. Because the offer showed the defendant to be a non-resident within the spirit of the act; and 2d. That giving the bond to discharge the attachment prevented him from showing such fact. At general term, the court held, 1st. That the defendant was estopped from contesting that fact of non-residence in a suit on the bond. This disposed of the case— but the judge who delivered the opinion, went on further to say: "It was well observed by the judge on the trial, that the facts offered to be proved, showed defendant a non-resident debtor within the meaning of the statute. He had left the State without paying this demand, and had remained abroad for three years. During all this time the plaintiffs had been deprived of their just dues; and it would be strange indeed, if they could not, after such a prolonged absence, make their debtor's property to respond for this debt, because he had all this time the purpose of returning to the State when it might suit his convenience. It will be observed, that this part of the opinion was wholly obiter-and further, that it was not claimed or offered to be proven that defendant had a family, but only that he kept house within the State. When this case came before the Court of Appeals, the judgment below was affirmed, and the ruling of the judge at circuit approved-both as to the estoppel and non-residence. On the latter point, the court said: "The ruling of the judge was probably correct for the reasons assigned by him. In the matter of Thompson Chaine a. Wilson. was most of the time at Ogdensburgh, his family keeping house in Portsmouth. He continued to do work also at the latter place, where he had property to a considerable amount. (1 Wend., 45), the distinction was taken between the residence of the debtor and his domicile. It was there held that his residence might be abroad, within the spirit of the statute, which was intended to give a remedy to creditors whose debtors could not be served with process, while the domicile continued in this State. In Frost a. Brisbin (19 Wend., 14), it was said in a case like the present, that actual residence without regard to the domicile of the defendant, was within the contemplation of the statute. The defendant was, therefore, a non-resident within these decisions, although domiciled in New York." It will be seen that the Court of Appeals asserts no opinion of its own; it merely declares the defendant a non-resident within the decision of the cases cited. The substance of the facts in one case is set out; the other case, Frost a. Brisbin, was this: "The defendant, a citizen and resident of this State, took a large stock of goods to Wisconsin, leaving his wife and child at board in this State, stating that he intended to make Milwaukee his future residence. He remained at Milwaukee ten months in business, then returned to this State on a visit, and after staying two months, was arrested and held to bail. After his arrest, he returned to Milwaukee and continued his business. Before his visit, he was appointed a commissioner by the Legislature of Wisconsin, to distribute the stock of a bank, and a director of the same. On a motion to discharge the order of arrest, the court, after reviewing and citing the various cases, and particularly that of Thompson (1 Wend., 45), says: The cases cited, establish that the transient visits of a person, for a time, at a place, do not make him a resident while there. There must be a settled fixed abode, an intention to remain permanently, at least for a time for business, or other purposes, to constitute a residence, within the legal meaning of that term. One of the cases expressly, and all of them virtually decide, that actual residence, without regard to the domicile of the defendant, was within the contemplation of the statute. The domicile of a defendant may be in one State or Territory, and his residence in another.'"' It will, therefore, be observed that the first case which is made to uphold Haggart a. Morgan, was held to be within the spirit of the statute (both being commenced under the Revised Statutes), because such statute was intended to give a remedy to creditors whose debtors being absent, could not be served with process, though their domicile continued in this State; and in the second case, the defendant had no domicile-his wife and child were mere boarders in this State, his place of business being clearly established in Milwaukee, and he claiming not that he had not a residence in Wisconsin, but that his two months' stay here on a visit to his wife exempted him from arrest, under the non-imprisonment act of 1831. The reasoning to sustain the foregoing decisions has no application to this case. This action being commenced under the Code, the attachment is not an original process; the Code has provided another means for commencing actions against absent and non-resident debtors; and although the defendant in the first case may have been a non-resident within the meaning of the Revised Statutes, for the reason assigned, he was in fact a resident outside that statute. It is also to be observed that that decision was in furtherance of, and not to defeat the ends of justice. So of Frost a. Brisbin, it was in furtherance of justice, and was based Chaine a. Wilson. It was held that his legal residence was in Canada, and a motion to discharge an attachment which had been issued was denied. upon facts entirely dissimilar to the case under consideration; it was but giving construction to a statute; in truth, it only decided what was the intention of the statute in exempting persons from arrest. The case in the Court of Appeals being based entirely upon these two cases, so far as any thing is said about residence, without expressing any opinion of its own, and the decision of such point not being essential to the case, I cannot regard it a binding authority. The case of Bartlett a. New York City (5 Sandf., 44), was an application for an injunction to stay the collection of a tax assessed against the plaintiff as a resident of the city of New York. The facts showed, that prior to May, 1849, defendant resided and kept house in New York; he then broke up housekeeping and removed his family to Westchester county; he remained there until December, when he took rooms with his family in New York, where he remained until April, 1850; he then returned to Westchester county, and remained until December, 1850, when he again took rooms in New York; during all this time his only place of business was in New York. The general act for the assessment of taxes, requires every person to be assessed in the town or ward where he resides when the assessment is made; and by the laws of 1850, when a person shall reside during any year in two or more counties or towns, his residence for the purposes, and within the meaning of the section above, shall be deemed and held to be in the county and town in which his principal business shall have been transacted. It will thus be seen that the plaintiff's liability was clear. The court, however, saw fit to examine all the cases above cited, and adopted the definition there given to the term "residence;" a conclusion not quite necessary to the decision of the case. The next case is that of Towner a. Church (2 Abbotts' Pr. R., 299). This case was decided at a general term of the first judicial district, in 1855. When the attachment was issued, whether under the Revised Statutes or the Code, does not appear. The facts were these: The defendant had resided with his family in New York city, and done business there for a number of years, when he and his family removed to Connecticut, and called that their residence; but he kept rooms in the city, where he boarded and lodged all the week, attending to business (except that Sundays he spent in Connecticut). One judge held that the defendant was not a non-resident of the State, in the sense of our attachment laws; and another judge held that whenever a person carried on a regular and systematized business in New York, in which he has invested his working capital, and in such business spends his time during the regular business hours of the day, having not only his stock in trade invested there, but keeping his bank account there, and if all his ordinary transactions take place there, such person fails to come within the fair intent and meaning of our attachment laws, although his family may be actually residing in New Jersey. That process in such case, either against the person or property, is as easily served, as against one whose family resides in the State. This is a strong case, and more nearly in point than any other cited; and if the facts in the case under consideration came within the rule above stated, I should feel bound by that decision, although I am unable to reconcile my judgment with |