Actions not arising out of contract.

resident or a person about to remove is to be arrested, there must be three circumstances or facts regarded: 1. The cause of action must be one not arising out of contract; 2. The action must be for damages; and 3. The defendant must be a non-resident of the State, or about to remove therefrom. What constitutes a cause of action not arising out of contract, and who is a resident or a non-resident, will be hereafter discussed.

b. Actions not arising out of contract. Under the former practice in actions at law, actions were divided into such as were called ex contractu, or such as were termed ex delicto. It is only the latter class of actions that will be noticed in this place.

Actions in form ex delicto comprised replevin, trespass, and trespass on the case. The action of trespass on the case was a universal remedy given by the statute of Westm. 2, 13 Edw. I, for all personal wrongs or injuries committed with or without force, whether occasioned by malfeasance, non-feasance, or misfeasance. Trover, slander and malicious prosecution were three forms of this remedy in the nature of distinct actions. In all the actions embraced within this general classification, an arrest may be allowed under such conditions as are prescribed by the first subdivision before mentioned.

These include, actions for damages for assault and battery, for libel, for slander; Davis v. Scott, 15 Abb. 127; Knickerbocker Life Insurance Company v. Ecclesine, 6 Abb. N. S. 9, 23; actions against an innkeeper for the loss of the baggage of his guests; People v. Willett, 6 Abb. 37; S. C., 26 Barb. 78; 15 How. 210; actions against common carriers for damages resulting from carelessness, negligence, and improper conduct. Burkle v. Ells, 4 How. 287; S. C., 2 Code R. 148; actions for criminal conversation; Delamater v. Russell, 4 How. 234; S. C., 2 Code R. 147; Straus v. Schwarzwaelden, 4 Bosw. 627; or sepuction; Taylor v. North, 3 Code R. 9; or an action for a limited divorce on the ground of cruel and inhuman treatment. M'Intosh v. M'Intosh, 12 How. 289; and actions for false and fraudulent representations of the means and pecuniary ability of a third person, whereby the plaintiff was induced to sell and deliver goods on credit to such third person, to the plaintiff's damage. Smith v. Corbiere, 3 Bosw. 634. Previous to the amendment of the Code in 1863, this latter action must have been brought under this first subdivision in order to secure the right to arrest the defendant. But since the addition to subdi

Residence, domicile, etc.

vision four of the clause "or when the action is brought to recover damages for fraud or deceit," the action may be brought under this latter subdivision without regard to the question of residence. Hazlett v. Gill, 19 Abb. 353; S. C., 4 Rob. 627; Redfield v. Frear, 9 Abb. N. S. 449.

And generally where, under the old practice, the right to arrest was given in actions not arising on contract, or in actions sounding in tort, the same right remains under the first subdivision of section 179.

c. Residence, domicile, etc. It is not easy in all cases to determine what is to be construed as a residence within the meaning of the Code. The terms "residence" and "non-residence" are invariably used in the Code, while in the Revised Statutes the terms "residence," "domicile" and "inhabitancy" are not used indiscriminately, but had each a definite, legal signification. See Crawford v. Wilson, 4 Barb. 504, 522; Roosevelt v. Kellogg, 20 Johns. 210; Thorndyke v. City of Boston, 1 Metc. 245; Houghton v. Ault, 16 How. 77, 85; S. C., 8 Abb. 89, note; S. C. affirmed, 25 How. 593, n; Chaine v. Wilson, 8 id. 78; S. C., 1 Bosw. 673. Bouvier defines "residence" as personal presence in a fixed and permanent abode. This is in accordance with the spirit of the decisions upon which the old rule regarding residence was based. Personal presence, or what may be termed actual residence, was essential to the strict legal significance of the term. Haggart v. Morgan, 4 Sandf. 198; In the Matter of Thompson, 1 Wend. 43; Frost v. Brisbin, 19 id. 11. In these cases the rule is distinctly laid down that a person may be a non-resident within the meaning of the statutes relating to provisional remedies while he has a domicile within the State.

Two things must concur to constitute domicile: first, residence, and secondly, the intention of making it the home of the party. There must be the fact and the intent. Ennis v. Smith, 14 How. U. S. 400. See Story on Confl. of Laws, § 44.

The old rule that the term "residence" should be construed liberally in favor of creditors has no existence under the Code, as the necessity for such rule no longer exists, and where in the provisional remedies of the Code the term resident or residence is used, the term must be construed to mean a legal residence. Houghton v. Ault, 16 How. 77; S. C., 8 Abb. 89, note; S. C. affirmed, 25 How. 593, n. And it is safe to say that, under the present practice, the same facts that determine where or what is

Residence, domicile, etc.

a "domicile" will also apply to a residence. Chaine v. Wilson, 8 Abb. 78; S. C., 1 Bosw. 673; Barry v. Brockover, 6 Abb. 374; Crawford v. Wilson, 4 Barb. 504, 522.

In the case last cited many of the decisions on these questions are collected and after a careful comparison of authorities, the conclusion is arrived at that from the various definitions of the terms "residence," "inhabitancy" and "domicile," the proposition may be deduced that the terms "legal residence" or "inhabitancy" and "domicile" mean one and the same thing. That legal residence means the place of a man's fixed habitation, where his political rights are to be exercised, and where he is liable to taxation. See Houghton v. Ault, 16 How. 85; S. C., 8 Abb. 89, note. Ordinarily, one's residence and domicile (if they do not always mean the same thing) are in fact the same, and where they so concur, they are that place which is in ordinary language called home. And it may safely be asserted that where a person has a home, as that term is ordinarily used and understood among men, and he habitually resorts to that place for comfort, rest and relaxation from the cares of business, and for restoration to health, and there abides in the intervals when business does not call, that is his residence both in the common and the legal meaning of the term. Chaine v. Wilson, 8 Abb. 78; S. C., 1 Bosw. 673; Matter of Hawley, 1 Daly, 531.

The following general rules apply equally to residence or domicile, as the term "residence" is used in relation to the provisional remedies given by the Code. Every person must have a domicile somewhere, and can have but one, for the same purpose, at one and the same time. Abington v. North Bridgewater, 23 Pick. 170; Crawford v. Wilson, 4 Barb. 504. Every person has a a domicile of origin, which he retains until he acquires another, and the one thus acquired is in like manner retained. The place of birth is the domicile of origin; and, as a general rule, minors have, at all times, the same domicile as their parents. Crawford v. Wilson, 4 Barb. 504. A married woman follows the domicile of her husband, and usually a change of the domicile of husband changes that of the wife. But if separated by a decree of a competent court, and the wife remains in the same place, that presumption is rebutted as to any new domicile acquired by the husband. Vischer v. Vischer, 12 Barb. 640. A widow retains the domicile of a deceased husband until she obtains another. Greene v. Greene, 11 Pick. 409; Mifflin

Residence, domicile, etc.

Township v. Elizabeth, 18 Penn. St. 17. Being at a place is prima facie evidence of domicile. Guier v. O'Donnell, 1 Binn. 349. This presumption may, however, be rebutted. Bruce v. Bruce, 2 Bos. & Pul. 230, n. But the burden of proof in such cases lies on the party seeking to rebut the presumption. Ib. As to what constitutes a change of domicile no certain rule can be given which will be equally applicable to all cases. It requires no certain length of time, as length of time alone is not sufficient to constitute a change of domicile. There must be a bona fide and permanent intent, facto et animo. Until these concur the old domicile remains. Chaine v. Wilson, 8 Abb. 78; S. C., 1 Bosw. 673; Brown v. Ashbough, 40 How. 260; Vischer v. Vischer, 12 Barb. 640; Somerville v. Somerville, 5 Ves. 750; and where a person has two establishments in different States, and resides in each during different portions of the year, the question as to which establishment is the legal domicile must be decided by the intention of the party, as evidenced by his acts or declarations. Chaine v. Wilson, 8 Abb. 78; S. C., 1 Bosw. 673; Hegeman v. Fox, 31 Barb. 475; and where a married man does business in one place and has a family living in another, his domicile is where his family habitually reside; and, in general, when the fact of a residence has been once ascertained or conceded, it is deemed to continue until there is proof of a change of location, with intent to make such location a new home, with a fixed purpose to remain, and without a present intention to return when some temporary purpose is accomplished; and a mere intent to change such residence, coupled with the sincere belief that such change has been effected, will not be sufficient to constitute such change unless the intent and the fact concur. Ib.; Somerville v. Somerville, 5 Ves. 787; Munroe v. Douglas, 5 Mad. 379, 405; Bruce v. Bruce, 2 Bos. & Pul. 231, note.

A person cannot become a non-resident by being temporarily absent from the State, nor can he become a resident by being temporarily within it. Hurlbut v. Seeley, 11 How. 507; S. C., 2 Abb. 138; Boardman v. House, 18 Wend. 512. Thus, absence from the State as a volunteer in the army of the United States does not render a person a non-resident, as it is impossible for a person so circumstanced to acquire a residence elsewhere. Tibbitts v. Townsend, 15 Abb. 221.

So, also, a mariner cannot be deemed to have abandoned his

cases.

Removal from State-Injury to person.

residence in this State, while engaged as a mariner upon the ocean. The rule is substantially the same in this, as in other The residence of a seaman, if married, is the place where his family dwells, or, if unmarried, the place where his domicile was fixed when he first went to sea as a mariner. Matter of Scott, 1 Daly, 534; Matter of Bye, 2 id. 525.

Numerous cases might be cited from the English and American reports illustrative of the general principles here given. But as frequent references are made to them in the cases already cited, further space need not be devoted to their collection.

d. Removal from State. The other condition upon which a defendant can be arrested on an action not arising on contract under the first clause of the first subdivision of section 179 is, that the defendant is about to remove from the State. This intended removal must amount, in point of fact, to an intention to immediately depart from the State for the purpose of establishing a new domicile or residence elsewhere. It must be an intent to remain permanently and, without any intent to return. If a defendant is arrested on an order under the first clause of the first subdivision, based on an affidavit that fails to establish these essential facts, the order of arrest will, on application, be revoked. Brophy v. Rodgers, 7 N. Y. Leg. Obs. 152. See also Brooks v. McLellan, 1 Barb. 247; Hargreaves v. Hayes, 30 Eng. L. & Eq. 272; Davis v. Scott, 15 Abb. 127.

e. Injury to person, whether defendant be a resident or a nonresident. Another class of cases, in which a remedy by arrest is given under the first subdivision of section 179, is in actions for injuries to the person.

These injuries may extend to the absolute, or the relative rights. They may consist in injuries to the right of personal security, as by assault, assault and battery, or rape, or for injuries occasioned by carelessness or negligence, or injuries to health, as by nuisance, or by the neglect of a physician, or of an injury to reputation, by slander, libel or malicious prosecution, or injuries to personal liberty by false imprisonment.

Under the head of relative rights, are embraced the various injuries that may be offered to a person in the relation of husband, parent, guardian or master, by criminal conversation, seduction, abduction, beating or other ill usage of a wife, child, ward or servant. For any of these injuries to the person, the defendant is liable to arrest.