Boardman v. Bickford , 2 Aik. 345 ( 1827 )

Hutchinsoií, J.

delivered the opinion of the Court.

The only question that arises in this case, is, whether the facts presented in the bill of exceptions, entitle the plaintiff to pursue his claim in this state against the defendant, Bickford, and his trustees, under the statutes relating to suits against the trustees of absconding or concealed debtors ? This resolves itself into the question, whether Bickford, when he last resided in this state, was an inhabitant of this state, so that he could be said to remove, when he went from Lunenburgh to Northum-» berland ?

The Court attach but little importance to the former residences of Bickford in this state. Eaeh was temporary, and was succeeded by after residences in other places, his legal set-tlemenl being all the time in Northumberland ; and he having got back to his former place of residence before he went over to Lunenburgh, and commenced the residence which he last relinquished when he went back to the same residence, which going back is now called an abscondipg. The first of these statutes has long since received a construction, that the publicly going or moving out of this state was not an absconding, so as to authorize this form of action. Its provisions were after-wards extended by the statute of 1817, which enacts that any inhabitant of this state, who shah remove out of this state, and shall leave any monies, &c. to him belonging, with any inhabitant of this state, such person is declared to be an absconding debtor, within the meaning of the first statute. What is here intended by the expression, an inhabitant of this state ? It cannot mean, that the person should have become legally settled here by his residence; nor can the man who merely passes through the state be called an inhabitant. A man may come into the state to accomplish some special object, leaving his family and concerns behind, and return to them as soon as the object of his coming is completed, and his stay here be so short, that it would be absurd to treat him as an inhabitant, within the statute. Again, a man may come for a temporary purpose, and without his family, and yet tarry here so long, and do só great business, and contract so many debts for and against himself, with the citizens of this state, that, should he go back to his family and leave these affairs unsettled, justice could not be done without treating him as. an inhabitant, and suffering the use of this kind of action. It is, therefore, difficult to fix upon any criterion that would be sure to satisfy the mind in all cases that may arise. If a man moves into the state and takes pp his residence, with no design of returning, but should in fact move out after a very short residence, there would be no difficulty in deciding him to be an inhabitant while here, for the purposes of the process. But if he comes for a temporary object, with an intention to return, a much longer residence must be required, before there could be a pretence of his. being an inhabitant within the statute. If the present case presented the debtor, Bickford, as having gone from Northumberland to Lunenburgh with no intention of returning, our difficulty would be wholly removed. But the case states Merriam’s, in Northumberland, to be his home, and that he was there engaged to go to Lunenburgh to teach a school for three months — - that, when he went, he left his chest of clothes at Merriam’s, and returned once or twice for change of clothes while, his school continued; and, as soon as the. school was closed, at the end of the three months for which he engaged, he returned to the same home at Merriam’s; and, for aught that appears, he remains there yet.

Now the going to teach a school for three months, with intention of returning, and returning as the case slates, is too short a period to sanction a decision that he thereby became an inhabitant of this state, within the statute. We are the better satisfied in arriving at this conclusion, from the circumstance, that the debt in question was not contracted by Bids;ford in this state, during the three months residence in Lunen-burgh. It was probably a debt previously contracted in New-Hampshire, where both the parties lived when it was contracted, and where they both lived when the present suit was commenced.

Wm. Mattocks, for the plaintiff. Pierson and Cushman, for the defendant.

The exceptions are overruled, and the judgment of the county court is affirmed.