Pfoutz v. Comford , 36 Pa. 420 ( 1860 )

The opinion of the court was delivered by

Lowrie, C. J.

This is a feigned issue, to try whether the defendant was “ liable to a foreign attachment,” which is an issue in law and not in fact. The parties meant to try whether he was non-resident and absent, and we take it so. It is worth while doing such things right; for careful practice requires and be gets accuracy of thought.

An execution-creditor was allowed to intervene and raise the question. The defendant had been residing some years in Clear-field county. In June 1856, he packed up his goods, and left them in the care of a friend; and on the 15th June, started with his family, to leave them in the care of his father or his mother-in-law, in'another part of the staté, while he should go West to look for a neiv residence, intending to be back in four or five weeks. On the 19th, the attachment issued, and was served on the 20th, on goods already in the sheriff’s hands on a prior execution. He did return with his family in four or five weeks, remained a short time, and then removed to some western state. On this evidence that court charged, that he was non-resident and absent,-“if he left in June with the intention to remove to the West.” The meaning of this is, that if a resident leave his place of abode, and go into another state to seek another residence, ho thereby becomes a non-resident. This is erroneous. Residence is, indeed, made up of fact and intention; that is, of abode -with intention of remaining. But it is not broken by going to seek another abode; but continues till the fact and intention unite in another abode elsewhere. He remained a resident of this state until he left the state with his family on his way to a new home elsewhere: see Westlake's Private International Law 36, 37.

Judgment reversed, and a new trial awarded.