
    Smith vs. Story.
    An attachment bill under the act of 1836, ch- 43, sec. 1, will no t lie against a citizen who may be absent in another State, and who may have formed a determination to remove and made all preparations necessary to a removal. There must be an actual change of domicil already effected or he will not be regarded as a. non-resident within the meaning, of the ¡mb
    On the 19th day of September, 1837, Charles Smith filed his bill in the chancery court at Dandridge, in the eastern division of the State, against William C. Story. This bill charges that defendant, Story, executed his bill' single binding himself to pay to complainant, for value, received of him, on the 24th day of December, 1836, the sum of three hundred and seventy-eight dollars and forty cents, due one month after the date of said instrument; and that on the 1st day of January, 183?, defendant, Story, paid to complainant sixty-five dollars; and that the balance of said note and interest thereupon remained due and unpaid.
    - The bill charges that complainant was a resident of the oounty of Cocke, and that the defendant £iat the time of said transaction was considered a resident of Cocke county also, though for a considerable time preceding that he had béen in thé habit of occasionally making trips to the south, and sometimes remained absent for a considerable length of time;” but that shortly after said transaction said Story left the State, intending, as hé informed complainant and others, to return in a short time, but that he did not do so; and that complainant had been informed that said Story had purchased a tract of land in the State of Georgia and taken up his residence in that State, and that from the information he had received he had reason to believe that said Story did not intend to return again to the State of Tennessee, but that he clesigned residing permanently in the State of Georgia: by reason whereof complainant was likely, without the aid of a court of equity, to be delayed in the collection of his debt. The bill further charges that the defendant had left several negroes and other personal property in the State of Tennessee. The bill prayed that an attachment might issue, by virtue of the provisions of the act of assembly passed in the year 1836, ch. 43, to the sheriff of Cocke county, commanding him to seize the said negroes and keep them safely to abide by such decree as the court should render in the premises, unless bond and security should be given according to law for their forthcoming; and that a decree should be rendered subjecting them to the satisfaction of his debt. On the 16th September, 1837, this bill was sworn to and subscribed by complainant before chancellor Bramlitt, who ordered .the clerk of the chancery court at Dandridge to issue the attachment in conformity with the prayer of the bill, directing the negroes to be returned to defendant, Smith, upon his giving bond and security in the sum of six hundred dollars, conditioned for the forthcoming of the negroes to meet the decree of the court in the premises.
    On the 19th of September the clerk issued the writ to the sheriff of Cocke county. ' This attachment came to the hands of the sheriff, who returned that he could find no property of defendant in the county. An alias attachment was' issued at the October term, on motion of complainant’s solicitor, which was levied upon two negro slaves, the property of William C. Story, and bond and security taken for the ■ forthcoming of them at the final hearing of the cause. At the same term an order of publication was directed by the court, upon the allegations in complainant’s bill, to be made in the Knoxville Register, that the defendant appear at the next term and answer, &c.
    At the June term, 1838, the defendant, William 0. Story, appeared in proper person and filed his plea to the complainant’s bill, in which he prays that the complainant’s bill should be abated, “because this defendant avers that at the time of the giving of said note, when the same became due, and at the time of the filing of complainant’s bill, he was, continued to be, and still is, a citizen of the State of Tennessee, to wit, of Cocke county, and amenable to common law process; and at no time, neither at the time of giving said bond nor at the time it became due and payable nor at the time of the filing of this bill, was this defendant a citizen of the State of Georgia.” The defendant therefore alleged in his said plea that the circuit court of Cocke county had jurisdiction of the cause, and that the chancery court had not. This plea was verified by the affidavit of defendant.
    At the December term, 1838, the following order was made: “The defendant’s plea in abatement having been, on motion of complainant’s solicitor, set down for argument, and the same having been argued and the premises by the chancellor fully considered, it is ordered, adjudged and decreed that said plea be disallowed, and that the defendant, within two months from this date, file a full and sufficient .answer to complainant’s bill,” so as not to delay hearing at fhe next term.
    Story filed his answer on the 3d day of June, 1839. He stated that he was, at the time of filing his answer, and had been for forty years before that time, a citizen of the county of Cocke; that it was true he had been occasionally absent from the State of Tennessee for some considerable length of time, as he had been engaged in the business of driving hogs to the Georgia markets for sale. He stated that it was true that he had purchased a small tract of land (forty acres) in Georgia, but that he had given horses and hogs for it and had. sold it again. He stated that during this whole period his family resided within two miles of the county seat of county oí Cocke, upon a tract oí two thousand acres oí land belonging to hiifi, upon which he had eight negroes, household furniture and other personal property at the time of the issuance of the attachment. He charges that his actual residence had been at all times in the county of Cocke, and that this fact was well known to complainant.
    Complainant filed a replication to this answer, and proofs were taken by complainant and defendant.
    William B. Jones testified that he saw Story in Georgia in August, 1837; that he had then been in that State about nine months; he purchased a tract of land, raised a crop on it in 1837, was engaged in working a gold mine, and avowed his determination to remove to the State of Georgia and reside there. When witness returned to Tennessee he made known these facts to complainant and others.
    George Easterly testified that Story left Cocke county about Christmas, in 1836; that he returned and remained a few days in May, 1837, and left again for Georgia. He saw him there in August, 1837, and did not'think he returned before the first of the year 1838; Story told him he had purchased a tract of land; showed him his growing crop; avowed his intention to remove to Georgia; showed him the place where he intended to locate his dwelling house. He further stated that Smith sent the note, for the collection of which the bill was filed, by him to Georgia; that he pre^-sented it to Story, who informed him that he would be in Cocke county before the fall circuit court began and pay the note, and that Story did not comply with his promise. He further testified that Story was much involved in debt in Cocke county, and supposed to be insolvent in 1837 and 1838.
    The defendant read the depositions of several persons, whd proved substantially that in 1836 and 1837 Story was engaged in trading in hogs and bacon in Georgia, and that he was laboring to collect his debts; that his family and property had remained in the county of Cocke; that he always regarded that place as his home, though he had purchased land in Geor-gla and had ¿vowed his determination to remove there; that his family and his creditors had become somewhat alarmed at his long absence, and that a portion of his property had been sold under a judicial attachment.
    The cause came on for final hearing on the proofs before chancellor Williams átthe June term, 1839. His honor being of the opinion that the pleadings and proofs showed that “at the time of the filing of this bill, and for some time previous thereto, the defendant had left the State of Tennessee; that he had purchased a farm in the State of Georgia and was cultivating it, and had declared his determination to reside in said State, and had done other acts clearly indicating his purpose and determination to make his residence there, ánd that such was the belief and understanding of his cr'edi-tors and others in the neighborhood of his former residence, and that in point of fact he was a resident of the State of Georgia,” ordered, adjudged and decreed that if the defendant did not within ten days from that date pay the complainant the sum of three hundred and fifty-nine dollars and forty" one cents, the amount of his debt and interest, the clerk should proceed to sell one or both of said slaves, if necessary-, and satisfy the debt.
    The defendant prayed and obtained an appeal to the supreme court, from this decree.
    
      R. J. Kinney, for complainant-.
    
      Peck, for defendant.
   Reese, j.

delivered the opinion of the court.

This is an attachmént bill filed against the defendant under the provisions of the first section of the act of 1836, ch. 43, as a non-resident debtor, and not under those of the third section as an absconding debtor. The only question arising upon the pleadings and the proof is one of fact with reference to the jurisdiction of the court: that-is, whether the defendant was at the time of filing the bill a non-resident? ■ The proof makes it clear that however he may have spoken of a purpose -thereafter to change his residence, or made preparations and arrangements tending to that end, still his residence and domicil were not in fact changed, but continued in the county of Cocke in this State. The court, therefore, had no jurisdiction to pronounce a decree, and the decree rendered must be reversed. But, as the situation and conduct of the defendant might well have induced the complainant, without the imputation of fault, to adopt the course he did, let the parties each pay one half of the costs.  