(dissented). — An attachment having been issued against the property of the defendant as a non-resident debtor, it was subsequently discharged by the judge on the ground that the defendant not only had been — which was admitted — but continued to be, which was denied — a resident of this State. From that order the plaintiffs appeal to the general term, and the question to be determined is, what, in these cases, constitutes non-residence.
The Code, in giving the remedy by attachment, where the party sued “ is not a resident of this State,” has furnished no specific definition of the sense in which it uses this much litigated form of expression. We are left, therefore, in determining its meaning, to the ordinary rules of interpretation.
Any person, it is well settled, may have his domicil in one place and his residence, for the time being, in another. Thus a citizen of New York may retain his dwelling in this city, with its furniture, undisturbed, in charge of his ordinary domestics, for a year or more, while he is educating his children in Switzerland, and occupying a hired house in Geneva for that purpose. In such case, New York, it is obvious, continues to be the place of his domicil; and it seems equally obvious that he becomes, notwithstanding, a temporary resident of the city of Geneva. But does it follow, say the defendant’s counsel, that in becoming a temporary resident of Geneva he be*148comes a non-resident, permanent or temporary, of New York? May not a man bave two residences at the same time, a permanent and a temporary one? He certainly may. In the case put of one of our citizens living in Geneva, if asked what was his place of residence, he would, no doubt, answer, using the term as synonymous with domicil — “ in New York.” This illustration, however, only shows that a man may have a residence in one place, and, at the same time, he a resident in another. And the statute does not say that a debtor’s property shall be attached if he has no residence in, but if, at the time, he is not a resident of this State. Of what consequence, looking to the object of the law, is it to the creditor that his debtor has a residence or a dozen residences in this State, if he himself remains for years, perhaps, out of its jurisdiction, residing actually and personally in Paris or Geneva? Wherein, so far as the creditor’s remedy for his debt is concerned, does such residing abroad differ in its effect from absconding or concealment? In either case, the reason for attaching the property arises from the impossibility of summoning the person.
But this reason, it may be said, would apply equally to the case of a débtor merely travelling abroad. The answer is, that on account of the- inconvenient restraint upon locomotion, which the allowance of an attachment in such cases would produce, the Legislature have in effect excepted travellers from the provision. A man, so far as this law is concerned, may travel without apprehension; but the moment he ceases to sustain the character of a traveller, and for purposes of education or business, takes up a fixed temporary abode, he becomes, for the time being, a resident abroad; and as a consequence, for the time being, in the eye of the law, a non-resident at home, and liable, as such non-resident, to have his property which he has left behind attached for the payment of his debts.
I see nothing unreasonable in this rule; on the contrary, while extending all due indulgence to the love of foreign travel, it shows no more than proper regard for the claims of domestic justice. Applied to the defendant’s case, the attachment clearly was rightfully granted.
He had left his family behind, it is true — but they could not be sued, and he had taken up a residence and opened and kept *149a store for nine months and upwards in a distant State. I think it pretty evident, moreover, that had his anticipations been realized, his family would ultimately have followed him to their new home. In one of his letters to his correspondents after visiting the West, he speaks of the place selected by him “ to open a store,” as a spot where he could “ build up a large and profitable trade.” In one of their letters to him, his correspondents inquire, what under the circumstances will be the effect of his “ movingshowing very clearly, the sense in which they understood his declarations. And he, in his reply, instead of correcting this impression, as he no doubt would have done, had he considered it erroneous, simply says, that he does not “ think his leaving here” — that is, leaving his original place of business, will have the effect of depreciating his existing property, as his friends suggested.
Five months afterwards, too, writing from the new “ place which he had chosen,” and in which he had, seemingly at least, established himself; after describing the probable consequences of a certain course of procedure, he observes : “Now, gentlemen, to avert the fulfilment of this picture, I have forsaken for the time being, home, wife, children and friends, and have commeneed business upon the very outskirts of civilization.” Surely, the place of which a man could thus write before going to it, and which he could thus characterize after months of actual occupancy, must at least be his temporary residence. And if so, is he not, while personally at it, and far away from his original domicil, properly termed for the time being, a non-resident of the latter — at least, within the true spirit and meaning of the law of attachment ?
If the inferences thus drawn from the defendant’s acts and correspondence, had been to any material extent erroneous, is it to be supposed that, anticipating as he no doubt did, their suggestion, he would have written to contradict them by his own affidavit? On a question of residence, where, although not conclusive, so much depends on the, perhaps, unrevealed intents of the mind, the unexplained absence of the party’s own affidavit, (he being permitted, if disposed, to be his own witness), is a strong negative circumstance, amply sufficient, as it *150seems to me, even were the facts otherwise doubtful, to turn the scale against him.
My conclusion, as well on principle as on authority, is, that the defendant at the time in question, was at least a temporary resident of Wisconsin, and not a resident of this State; and that the order vacating the attachment ought therefore to be reversed. See the cases cited in Voorhies Code, 203.