McConnell v. Kelley

• Decision Date: 13 January 1885
• Citation: 138 Mass. 372
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George McConnell & others v. William H. H. Kelley & another

138 Mass. 372

George McConnell & others v. William H. H. Kelley & another

Supreme Judicial Court of Massachusetts

January 13, 1885

Argued November 6, 1884.

Argued November 7, 1884.

Essex.

Bill in equity to vacate and set aside a warrant issued by the judge of insolvency for Essex county, upon the petition of the defendant Kelley. Hearing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

Bill dismissed.

B. N Johnson, (G. B. Ives with him,) for the plaintiffs.

W Gaston & W. A. Knowlton, for the defendants.

Field & C. Allen, JJ., absent. Morton, C. J.

OPINION

Morton C. J.

Our insolvent law provides that "an inhabitant of this State owing debts contracted while such inhabitant" may apply to the judge of the court of insolvency of the county within which he resides for the benefit of the insolvent law, and if it appears that he owes debts to the amount of not less than $ 200, the said judge is forthwith to issue a warrant it also provides that, for certain causes assigned, creditors may commence involuntary proceedings against a debtor, if he "has resided in the State within one year." Pub. Sts. c. 157. In the case before us, the defendant Kelley duly filed his petition to the judge of insolvency for Essex county, who thereupon issued a warrant to take possession of his property; and the plaintiffs, who are creditors having attachments of said Kelley's property, thereupon brought this bill to vacate and set aside the warrant.

The justice of this court who heard the case found, as a fact, that, before filing his petition, Kelley moved from the State of New Hampshire into Methuen in the county of Essex, and "became a resident of this State."

The plaintiffs have argued that there is not sufficient evidence to show that Kelley had become an inhabitant of this State; but this is not open to them upon this report. The evidence is not reported in full, and we therefore cannot revise the finding of the justice who heard the case. Throughout the statute the words "resides" and "resided" are constantly used as describing inhabitancy, and generally the word "resident" in a legal sense is synonymous with inhabitant. We cannot doubt that the presiding justice used it in this sense; and that the questions intended to be presented by the report were whether Kelley, although he removed to and became an inhabitant of this State, is deprived of the benefit of the insolvent law, because the sole purpose of his change of domicil or inhabitancy, and of contracting debts in this State, was that he might have the benefit of such law.

A man has a right to change his domicil for any reasons satisfactory to himself. In determining whether there has been such a change from one place to another, the test is to inquire whether he has in fact removed his home to the latter place with the intention of making it his residence permanently, or for an indefinite time. If he has, he loses his old domicil, and acquires a new one with all its rights and incidents;...