Taylor v. Knox

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F

On the argument, the garnishee Henderson (who was also a co-partner with the defendant) produced several witnesses, by whose testimony the following facts were established:—That David Knox came to Philadelphia in the spring of 1784; that he brought furniture with him, hired a dwelling house and store, and professed an intention “to lay his bones here.” That he went to Virginia in February 1785, and sailed thence to England, in consequence of receiving intelligence of some misconduct of another partner, named Cowan, who resided there, and had never been in America. That during his absence, and at the time of laying the attachments, the copartner, now garnishee, continued in possession of the house in Philadelphia, with much the same establishment of servants &c. but after the attachments were laid, he broke up house-keeping. That David Knox was a single man, and it was not known, whether he had taken the oath of allegiance to this state, or not.

The plaintiffs to shew their cause of action, produced affidavits of accounts from their respective books, sworn to before the Lord Mayor of London.

The question being argued by Ingersol and Rowle, in support of the motion, and by Lewis and Wilcocks against it, the President, at an adjourned sitting on the 15th of February 1786, delivered the opinion of the Court.

Shippen, President.—The first point to be decided, is, whether the foreign attachments ought not to be dissolved, on the proofs given of Knox's being an inhabitant of Pensylvania at the time they issued?

We would avoid laying down any general rules as to what will or will not, make a person an inhabitant within the attachment law, lest cases should hereafter happen, which might come within those general rules, but were not in the contemplation of the Court in the particular case before them. We think, however, if any general rule was made, it would be reasonable, and very consonant to our laws and constitution, that the person's residence here, to make him ​

an inhabitant fhould be fo long as to give him the rights of citizenfhip– to wit, for twelve months. And we fhould have no heftitation in laying this down as a rule, if it were not for thofe cafes of difpute which may arife between creditors on a domeʃtic attachment, and creditors on ƒoreign attachments, where it may frequently happen that the debtors's refidence may be lefs than 12 months, and yet he may, and ought, to be an object of the domeftic attachment law, fo as to have his effects divided among all his creditors, and not fwept awa by the firft creditor who takes out a foreign attachment ^[♦]But in cafes where a ftranger comes among us, and remains here for a fhort time, and then goes away under fuch circumftances, as not to make him as object of the domeʃtic attachment, it will always have confiderable weight with us, that he has not refided here for twelve months.

In Knox's cafe his refidence here was only eight or nine months ; the family he left behind him, does not appear to be of a kind to denote an uneqivocal continuation of his refidence, being probably no more than was fufficient for his partner Henderʃon's own accommodation as a fingle man.

The ʃecond question is, whether there has been fuch proof of a debt due, as is fufficient to fhew a caufe of action ?

And here it will be proper to mention the reafon and occafion of making the rules with regard to proofs neceffary for holding to bail on 'writs of capias. When I came into this Court, I found a practice had lately taken place of requiring proofs of the debt, fimilar to thofe required by the ftatute of 12 G.I. fo as to difable abfent plaintiffs from holding defendants to bail, for want of a pofitive affidavit before one of the judges of this Court of a fubfifting debt. I confidered this practice as not founded in law, and as tending to injure the credit of the country. That it was not founded in law I took to be clear, from the words of our act of Affembly, made fhortly after the revolution, extending only fuch of the ftatute laws of England as had thereƒore been in force in Pennʃylvania. The act of 12 G.I. was certainly not in force, nor ever practiced un, before me, thought there was good reafon to keep up a kind of reciprocity between England and us, upon this fubject, and not being willing to relax the rule totally, it became neceffary in order to preferve a uniformity of determination in the feveral judges of the Court, to fettle another mode, fo as to avoid extending an act of Parliament by their authority, which had not been extended by the Legiflature, and yet not to give the inhabitants of that country the fame eafy method of proving their debts to England before the Lord Mayor, or other magiftrate there, which had been practifed previous to the revolution under their own acts of Parliament. A middle way was, therefore, ftruck out ; and fignature of the party to fome inftrument of writing, or fome letter, or acknowledgment ​

1785.

of the debt, was made neceffary to be fuperadued to the ufual probate made before the war. This rule, however, affects the inhabitants of other countries as well as England; and it may poffibly be found neceffary, at fome future time, to make an alteration in it more conformable to the general law on thofe fubjects. But, as at the time of making the rule, we had no eye to any other kind of procefs, than writs of capias, and it was exprefsly confined to them in favour of perʃonal liberty, we do not think it fhould be extended to other cafes, not then within our view. In cafes of attachments, therefore, we think it fafeft, to follow the law as we find it in our books before the ftatute of 12 G.I. And as it appears by the cafe in 8 Mod. 323, that an affidavit of a plaintiff, before a notary public in Holland, was deemed fufficient to hold the defendant to bail, we think the like affidavit in this cafe, fhould be fufficient for the fame purpofe.