
    Bernard McKiernan et al. vs. William Massingill.
    In order to authorize a publication against a non-resident defendant to a suit in chancery, it must appear in the record by affidavit that such defendant is a non-resident of the state; an affidavit, therefore, merely that he is a citizen of a different state will not be sufficient.
    In error, from the vice chancery court at Columbus; Hon. Henry Dickinson, vice chancellor.
    The bill in this case was filed in the chancery court at Co-' lumbus, on the 14th day of December, 1841, by William Massingill against Bernard McKiernan, William D. Stone, and William Gray. The bill alleges that, some time in the year 1837, complainant sold to Jordan Elder a plantation and seven negroes, in Hinds county, for the sum of fourteen thousand dollars, and took their several promissory notes for the same, of equal amounts, payable on the 1st days of February, 1839, 1840, and 1841, for the purchase-money; and to secure the payment of the same, said Elder conveyed land in Hinds, and the seven negroes mentioned in the bill, to James Scott, with power to sell, upon default in payment of said notes. That said trustee has left the United States and gone to Texas. That said Elder, intending to defraud complainant, since said notes or one of them became due, took possession of the following of said negroes, to wit, Sam, Maria and her children, Henry and Alfred, Jordan and Maria, and sold them to Bernard McKiernan, a citizen of Louisiana, who knew of the conveyance in trust. That the agent of complainant took the said negroes from the possession of the said McKiernan, in the state of Louisiana where they had been taken, and exceeding his authority, sold them to William D. Stone and William Gray, of the county of Noxubee. That said McKiernan has traced said negroes, and has obtained a writ of habeas corpus for the purpose of obtaining possession of said negroes; and complainant was afraid he would succeed, and would remove said negroes to Louisiana, and thereby complainant be remediless. That McKiernan has an action of detinue depending against said Gray and Stone, in the county of Noxubee. The bill prayed for injunction, and that the negroes be delivered to a trustee, tobe appointed to execute the trust aforesaid, and for general relief. The bill was sworn to on the 14th October, 1841, and injunction granted as prayed for.
    At the December term, 1841, without other affidavit, but upon the sworn bill, an order of publication was made against McKiernan, directing him to appear at the following June term. Publication was made, in which it was recited “ that upon opening the matters of this bill, it appears to the satisfaction of the court that the defendant B. McKiernan now is not án inhabitant of this state, but resides beyond the limits thereof.” At the May term following, on proof of publication, pro confesso was taken against McKiernan. Process was served on the other defendant, and pro confesso against all of them but Stone, who answered, admitting the allegations of the bill.
    At the November term, 1842, decree against McKiernan, that he be perpetually enjoined, and that the negroes be delivered to a trustee appointed, was made. The decree recites “ that it appears from the complainant’s bill, that B. McKiernan is not a resident citizen of this state, and that publication has been made according to law.”
    
      R. Hughes, for plaintiffs in error.
    At the time of the order of publication against McKiernan, no affidavit was made of his non-residence. True there was an affidavit to the allegations of the bill, and the bill states that he was a citizen of the state of Louisiana at the time of the filing the bill. Non constat that he was so, when the order of publication was made. The allegation that a party is a citizen of another state alone will not do; it must appear by affidavit, or return of an officer on a subpoena, that he is a non-resident, so that process cannot be served. See Revised Code, 159, sec. 5.
    
      
      L. Lea, for defendant in error.
    The bill alleges that McKiernan is a non-resident. It is sworn to. There was an order of publication, which was duly executed. This order was made because “ it appeared to the satisfaction of the court that McKiernan was not an inhabitant of this state, but resided beyond the limits thereof, so that the ordinary process of the court could not be executed on him.” It is submitted that nothing more is required to be shown in order to give the court jurisdiction as to McKiernan. He had, at least, constructive notice of the suit, and he should have answered the bill..
   Mr. Justice Clayton

delivered the opinion of the court.

The only question involved is as to the sufficiency of the allegation of the foreign residence of the defendant below, the plaintiff in error, to justify the proceeding by publication against him. The bill states that McKiernan is a citizen of Louisiana. The bill is sworn to, but no affidavit is filed according to the 11th rule of the chancery court. The record says, “ upon opening the matters of this bill, it appears to the satisfaction of the court, that the defendant B. Kiernan is not an inhabitant of this state, but resides beyond the limits thereof.” The decree recites, “ that it appears from the complainant’s bill, that B. McKiernan is not a resident citizen of this state, and that publication had been made according to law, &c.” From these portions of the record — and they are all which bear upon the point — it is manifest that the only evidence to authorize the proceeding by publication is the statement contained in the bill, and that goes only to citizenship. The statute authorizes publication, in lieu of service of process, upon proof “that the defendant is out of this state.” H. & H. 522. All that is stated in this bill may be conceded to be true, and yet the defendant may have been within this state, and entirely within reach of the process of the court at the time the bill was filed. A man’s domicil, his home, the seat of his citizenship, may be in one state, and yet he may reside a large portion of his time in another. Citizenship, in cases of this kind, is not the point involved, but the liability of the defendant to the process of the court. Absence from the state, so as to put him beyond the reach of service of process in the ordinary way, is what gives right to resort to publication as a substitute for service of process.

For this defect the judgment must be reversed.  