Stiles v. Lay , 9 Ala. 795 ( 1846 )

GOLDTHWAITE, J.

1. The District Courts of the United States, are not, by the general bankrupt act, invested with jurisdiction over all bankrupts, but only over such as petition to be discharged in the district where he shall reside or have his place of business at the time of filing the petition. [Sec, 7.] As that is the only court which, under the act, is authorized to discharge, it follows that a discharge granted by a court not having jurisdiction over the person, either in consequence of his residence, or his place of business being at the time within the district, is entirely void. If the facts asserted in the replication are true, the court in New Hampshire had no jurisdiction of the person of the bankrupt, and therefore the demurrer was properly overruled.

2. But although the replication is good, it appears to us the evidence before the jury showed the defendant’s actual, as well as legal residence was in New Hampshire, when his petition was filed.. In Hallett v. The State, 8 Ala. Rep. , we had occasion to consider the question of domicil in connection with the right to vote, and then held, that the mere intention to remove, without the actual removal of the family of the individual, did not constitute him a citizen of the State, so as to entitle him to vote. In' the case under consideration, the family of the defendant resided in New Hampshire continuously for many years, and he returned there each summer. This was his legal domicil, or residence, and if death had happened during any of his temporary sojourns in this State, his property would have been distributable by the laws of that where he left his family. Judge Story puts the precise case which is shown here, when he says, if a married man has his family fixed in one place, and he does his business in another, the former is considered the place of his domicil. [Confl. L. § 46.] In this case, assuming the plaintiff’s evidence to be true, there was the intention to change the residence at a' future time, but no actual change at the time of filing the petition. My views on the matter of intention, and how far it explains the actual residence were given in the case cited ; but I agree here, that the actual residence with the family, constituted the place of residence for all purposes.

This conclusion shows the error of the refusal to give the charges asked, and the judgment is reversed and remanded.