Smith v. Story ( 1839 )

Reese, j.

delivered the opinion of the court.

This is an attachmént bill filed against the defendant under the provisions of the first section of the act of 1836, ch. 43, as a non-resident debtor, and not under those of the third section as an absconding debtor. The only question arising upon the pleadings and the proof is one of fact with reference to the jurisdiction of the court: that-is, whether the defendant was at the time of filing the bill a non-resident? ■ The proof makes it clear that however he may have spoken of a purpose -thereafter to change his residence, or made preparations and arrangements tending to that end, still his residence and domicil were not in fact changed, but continued in the county of Cocke in this State. The court, therefore, had no jurisdiction to pronounce a decree, and the decree rendered must be reversed. But, as the situation and conduct of the defendant might well have induced the complainant, without the imputation of fault, to adopt the course he did, let the parties each pay one half of the costs.