Risewick v. Davis

• Decision Date: 03 December 1862
• Citation: 19 Md. 82
• Parties: JACOB RISEWICK v. GEORGE DAVIS, Garnishee of JAMES FORWOOD.
• Court: Maryland Court of Appeals

19 Md. 82

JACOB RISEWICK v. GEORGE DAVIS, Garnishee of JAMES FORWOOD.

Court of Appeals of Maryland.

December 3, 1862

By the more recent decisions of this State, it is declared that the design of the attachment laws is to protect our own citizens from summary proceedings, as well as to give them, and the citizens of the United States, a remedy against debtors residing out of the reach of the process of Court.

The jurisdiction of the Court, in cases of attachment, is a special, limited jurisdiction, conferred by Acts of Assembly where its power to act must appear on the face of the proceedings, or be proved at the trial.

The great purposes of our attachment laws are, by seizing the property of a debtor, to compel his appearance to answer the demand of the plaintiff, when, from non-residence or flight he is beyond the process of our judicial tribunals, and, on failure of appearance, to apply such property to the just end of satisfying his debts.

An attachment is an extraordinary, not an ordinary writ. To use it when the debtor is within the reach of ordinary process is wholly inconsistent with the spirit and design of this mode of procedure.

The attachment upon warrant, under the Act of 1795, ch. 56 cannot lawfully issue, without an affidavit that the debtor " was not a citizen of the State, and not residing therein," or that being a citizen, " he is actually run away, absconding or removed from his place of abode; " if it does not contain this averment, it is substantially defective, and the judgment of condemnation, upon appeal, will be reversed, and the attachment quashed.

The Act of 1750, ch. 40, is prohibitory only as respects residents, & c.; it is silent, " eo nomine, " as to foreigners, but it has been decided, that under that statute attachments would lie against foreigners, whether they were residents of the State or not.

The meaning of the word " citizen, " in the Act of 1795, ch. 56, is synonymous with " inhabitant or permanent resident; " all such are alike entitled to the most enlarged remedial process and protection from summary proceedings, whether native or adopted citizens, enjoying the elective franchise, and right of purchasing and holding real estate. This construction does not conflict with the provisions of 1715, ch. 40, but gives a cumulative remedy, adapted to the exigencies of trade and commerce, which would be otherwise much embarrassed by the delays of the law.

The question of citizenship, in the purview of these Acts, is a mixed question of law and fact, to be found by the jury, under the direction of the Court.

If " residing and doing business in the State" constitute a defendant, at the time he absconds, a citizen in contemplation of our attachment laws, not residing and not doing business in the State at the time of issuing the attachment, would necessarily bring the defendant within the opposite class of persons described in the Act of 1795, ch. 56, sec. 1, as not being citizens of this State, & c.

There being no express provision in the Act of 1854, ch. 153, as to when it should take effect, by the 31st sec. of Art. 3, of the Constitution, its operation was suspended until the 1st of June 1854, and did not affect pending cases.

In a case of attachment on warrant, the plea being " that the debtor was a citizen of Maryland, and not liable to attachment," the declarations of the debtor, offered to show an " animus revertendi " at some indefinite period, are not admissible.

In such a case, where the debtor has been absent from the State four or five years, working as a contractor in the construction of railroads in an adjoining State, it not appearing that he might not be absent as many years longer, the declarations of the debtor offered to show that he had not abandoned his home or domicil in the State, are not admissible.

Where the prayer was,--" That if the jury believe, from the evidence, that the debtor had his home in Maryland, and left the State for temporary purposes, but with an intention to return to it, that such a change of place was not, of itself, in law, a change of domicil:" HELD, that upon an issue of domicil, absence from one's domicil for a temporary purpose, attended with an animus revertendi, will not amount to a change of domicil. The subject of inquiry, however, being " commercial citizenship," such an instruction, without qualification, has a tendency to mislead the jury.

APPEAL from the Circuit Court for Harford county.

This is a case of an attachment on warrant, issued May the 2nd, 1854, by the appellant, to bind the property and effects of James Forwood. The attachment was laid in the hands of George Davis, who appeared and pleaded three pleas, two of which were ruled bad on demurrer. To the third plea, which was that Forwood was a citizen of Maryland, and not liable to attachment, issue was taken, and joinder. The case was tried the 18th of November 1858.

1 st Exception. --At the trial of the cause, the defendant proved that in 1847, James Forwood was a citizen of Maryland, residing in Harford county, with a family, consisting of his wife, his mother-in-law, his sister-in-law, and his four children, and there kept house and carried on a farm; that in 1847, he left said State and went to Pennsylvania, his family remaining and occupying the same house and farm; that while making his preparations to go to Pennsylvania, he declared to his family physician, and to several other persons in the neighborhood, his fixed intention to retain his home and residence in Maryland, and to return from time to time, for the purpose of voting at elections; and at various other times, before the issuing of the attachment in this case, he expressed the same intention, and spoke also of his intention to return home when he should have completed the business for which he left the State. To these declarations of Forwood, the plaintiff objected as inadmissible, but the Court (PRICE, J.,) overruled the objection, and the plaintiff excepted.

The defendants also proved that Forwood was in Harford county, for a few days at a time, on several occasions, between 1847 and the 2nd of May 1854; that he voted there in 1850, and was at the polls at other times; that in January 1853, he was in Harford county, negotiating for the purchase of a farm, and in the Spring of said year was also in said county, and, with J. McCausland, purchased a farm therein, an undivided moiety of which he still owns; that he went to Pennsylvania to work as a contractor upon a railroad, and had several contracts in succession for making railroads in different parts of said State; and that on several occasions, when he had completed his contracts, he sold his carts and horses, and packed up his goods. The defendant further offered in evidence the declarations of Forwood, made on such occasions, that it was his purpose to return to Harford county, and that he was detained in Pennsylvania by new contracts, and by some difficulties in getting the money for the work he had done. To the admissibility of these declarations as evidence, the plaintiff objected, and the objection being overruled, excepted.

The defendant further proved, by S. S. Johns, that during Forwood's absence, he was his agent to attend to his affairs, and in that capacity supplied Forwood's family, from time to time, with grain and provisions, and paid the rent for the house occupied by them the year preceding their removal to the farm purchased by Forwood and McCausland, in 1853, and assisted in removing them and the furniture to said farm; and that when Forwood employed him to act as his agent, he told him that he wished him to continue as his agent until he returned home, and always spoke of Harford county as his home. The plaintiff objected to the admissibility in evidence of the said declarations of Forwood, but the Court overruled the objection, and the plaintiff excepted.

The defendant further offered in evidence a bill of sale from the said James Forwood to John W. Massey, dated the 19th of February 1850, in which is the recital, " I, James Forwood, of Harford county, and State of Maryland," & c.; and also proved that Forwood owned the farm on which he lived before going to Pennsylvania, until 1850, when it was sold by a trustee.

The plaintiff then proved that the wife of said Forwood went to Pennsylvania in 1850, and died there a short time afterwards; that two of his children also went to him in Pennsylvania, one of them in 1852 or 1853, and the other some time after, in 1853, the first of whom married and remained there, and the latter, who went on a visit to her father, remained there until 1857, when she returned with him to Maryland; that said Forwood married again in Pennsylvania, prior to 1853, and he and his wife and two children lived for some time with his father-in-law; that he sometimes boarded, and for a month or two kept house; and that he brought his second wife to Maryland in 1857.

The plaintiff's witness, Laura Forwood, being then cross-examined by the defendant, proved that when the children of Forwood went to Pennsylvania, he was boarding that he continued to board sometimes at Washington, Pa., sometimes near that town, sometimes at Greensburg, and sometimes at Pittsburg, as his business on the railroad required; and that when he went to house-keeping, it was in consequence of the breaking up of the boarding-house at which he was then staying; that he frequently expressed his intention of returning to Maryland, and spoke of it as his home; that his second wife often urged him to settle in Pennsylvania, but that he always refused, because, as he said, it was his intention to go back to Maryland, when he finished his work upon the railroads. To these declarations of Forwood the plaintiff...