
    Grant v. Jones.
    G., a native of Ireland, migrated to Canada some twenty-five years ago, and after living there about five years became a peddler, and as such traveled through several of the United States, carrying his pack of goods and selling wherever he went. As a peddler, he thus frequently visited Lemon township, Butler county, and there loaned money, taking real estate security, and thereafter, his occasional visits to that township were repeated as often as once a year, in his business as a peddler and to look after his investments, remaining so long as was necessary to transact his business, and then resuming his travels, carrying his notes and mortgages with him wherever he went. These visits to Lemon township were for the temporary purpose stated, and never with the intention of making that place his permanent abode. He was unmarried, and had no .home anywhere, never located for business in any place, never sought to change his domicile of origin, nor his allegiance as a British subject, nor to exercise any of the rights of a resident citizen of Ohio.
    
      Held, 1. That for the purposes of taxation of these notes and mortgages, G. was not a resident of Ohio.
    2. Credits owed by a non-resident of this state are not taxable here, unless they are held within this state by a guardian, trustee, or agent of the owner by whom they must be returned for taxation. The fact that such credits are secured by mortgage on real estate, within this slate, does not change the rule that credits arc to be taxed at the residence of the creditor, and not of the debtor.
    Error to the District Court of Butler county.
    The defendant in error, as treasurer of Butler county, Ohio, brought suit against Patrick Grant, to recover $2,236.37, being for taxes assessed against him, in Lemon township, Butler county, Ohio, for the years 1874, 1875, 1876, 1877, 1878.
    The answer of the defendant contained a general denial of his liability to pay the taxes, or that the same were legally charged against him; says he is a native of Ireland ; is a subject of Great Britain ; never was a citizen of the state of Ohio, or a resident therein, and that he never resided in Lemon township.
    That he has no family and has no residence anywhere. That for the last fifteen or twenty years his business has been that of a peddler, and during a.ll said time he has been engaged peddling in Pennsylvania, Virginia, Ohio, Indiana, Michigan, Illinois, Iowa, and in Canada West. That he has no personal property except some notes and mortgages, and. the goods lie peddles, all of which he carried with him, wherever he went.
    lie denies that any assessor of Lemon township, during all of said years, served him with notice to list any personal property of any kind, and he denies that any assessor of said township made any return to the auditor of Butler county, Ohio, of any personal property against him.
    The court of common pleas of Butler county, Ohio, gave judgment against Grant for $1,273.70, and finding that his residence, for the purpose of taxation, from second Monday of April, 1874, until second Monday of April, 1878, was in Lemon township.
    Patrick Grant filed a petition in error in the district court .of Butler county, Ohio, to reverse said judgment, but said court affirmed the judgment of the court of common pleas.
    This petition in error is filed 'in- this court for the purpose of reversing the judgment .of the district court and court of common pleas.
    The bill of exceptions, which was taken before the law was passed relieving this court from a review of .the evidence, shows that the tax was levied on notes and • mortgages, owned by Grant. It is conceded that Grant had no real estate or chattel property, within the county, so that the only question is, was he subject to be taxed on these credits-? If lie was a resident of Lemon township he was properly taxed, otherwise not.
    In behalf of plaintiff below, S. B. Berry testified, that- he had known Grant for six years or longer; that he had frequently been in Middletown (in Lemon township) and was known as a peddler and money-lender ; was there once a year or sometimes oftener, and that he having refused to list his credits, he made up the amount against him from an examination of the records.
    William Cunningham, the assessor for Lemon township in 18.79, testifies to serving a tax notice on him in 1879, which lie refused to receive, and said that bis home was in New London, Canada West, and that what tax he paid was -paid there, and that he afterward .examined and found that his name was not on the duplicate there.
    William Stout and John Weidenborrer, Jr., testified Jo the same conversation.
    William Weikel, the assessor in 1875, says that he .knew G-rant. •“I savLhim. in Middletown, which is in Lemon township, in.the^spring,of 1875 ; I at that time presented-him with a blank tax notice; he would notaccept.it; .s.aid he was not a resident; said lie had no property subject to taxation here; this was in spring of 1875 ; I have seen him there at Middle-town tvvo or three times á year since I saw him carrying a pack; he was a peddler; I have seen him in Middletown sometimes á month or more in the spring of the year.”
    L. G. Doty", being sworn as a witness, testified as follows: “I am an attorney atdaw at Middletown, in Lemon township, Butler county, Ohio ; I have known Patrick Grant (defendant) intimately from 1851-5 to this time ; his business was that of a peddler by carrying pack on his back; he never had, to my knowledge, any residence in Lemon township, Butler county, Ohio ; he never to m'y knowledge voted there; had no home there that I know of; had no family ; he is unmarried-; had no place to do business there, except that he sometimes did some business in our law office ; he owiled no real estate during all that time in Butler county ; he had no personal property during all that time in this county, except his pack, which he carried on his back, and was filled with linen goods and promissory notes and mortgages; wdien he first stopped iii Middletown he stopped with Paddy McCiie (a brother Irishman) but during the last four or live years he stopped at Patrick Elymi’s ; his business at Middletown was to look after notes and collect the interest and loan the same; he usually came once a year; sometimes twice a year; he always came in- the spring of the year to get his interest and re-loan it, and then he would go away with his pack and be gone for months ; I usually calculated for him the interest on lifs notes and mortgages; ho had notes and mortgages in Butler county to the amount of about $16,000; he never left liis notes or mortgages with me or with any one elsé, but carried them with him; he w?as never long in Middletown at a time ;• in 18711 first consulted him about his business; he had a note against Paddy McCiie; 1 sued him on it and got judgment; I drew up notes and mortgages for him to amount in all to about $16,000 during this entire period; lie has a note and mortgage on myself for about $5,000 ; note and mortgage on Thomas Hágán for about $2,500 ; note and mortgage on Mark M. Doty for about $2,000; nóte and mortgage on William Davison for about $1,000; note and Mortgage on Paddy Ford, $300; note and mortgage on Peter Newcomb, $200 ; note and mortgage on George Lane, $1,100 ; note and mortgage on Simpson, about $2,000, and some others; Patrick Grant was sometimes sick at Middletown; I know nothing of his coming there with a woman; he always came to Middletown in the spring of the year; the interest was usually due on his notes and mortgages in the spring; he would stay away and perhaps we would not see him till the next spring; for the last two or three years he has been at Middletown perhaps twice a year; I would write to him during the year at different points, Evansville, Indiana; Parkerslhirg, Virginia, and other places ; the mortgages were mostly on real estate outside the village of Middletown.”
    William II. Todhunter, being sworn as a witness, testified as follows: “ I am a law partner of L. D. Doty at Middle-town, Lemon township, Butler county, Ohio; I have known Patrick Grant eight or nine years past; he had no residence in Middletown at any time to my knowledge; he had no property of any kind to my knowledge, except his notes and mortgages, which he always took with him; he usually returned to Middletown in March, or April of each year to collect his interest, which was usually due about that time; he has been here about twice a year to attend to this business and look after some suits he had brought there for past few year; he had no business room at Middletown that I know of; sometimes he did his business in our law office; I collected money for Grant and gave him check for amount; he never left the notes with us, but always carried them with him.”
    Charles F. Gunckel, being duly sworn as a witness, testified thus: “I am an attorney, residing at Middletown, Lemon township, Butler county, Ohio; have known Patrick Grant for ten or fifteen, years past; he had no residence in Middletown, or in this county, to my knowledge; he always claimed his home to be in London, Canada "West ; he had no property, except notes and mortgages, and a pack.”
    Patrick Grant, being sworn as a witness in his own behalf, testified as follows: “ I was born in the county of Down, Ireland; was twenty years old when I came to this county ; I am now and have always remained a British subject; I am a peddler; this is my business ; I have peddled in about fourteen states of this Union ; I never had a house or rented a house in lemon township in this county; I came to Lemon township only to peddle or to collect my interest and to re-loan it; I have never had any home or residence in Middletown or in Lemon township ; I had no property of any kind in Lemon township except my pack (which I carried on my back), and my notes and mortgages, which I always took with me; I bought goods at Cincinnati and other places, and had them shipped to mo at different points where I could mtíet them; I never came to Middletown except on business, and staid usually but a few weeks; sometimes I would be absent from Middletown two years, but I was usually there once a year, sometimes twice; I peddled altogether on foot, but sometimes I would forward my pack for a short distance by railroad.” Cross-examination : “ My first home was in county Down, Ireland; had no home in the United States — never; I went from Ireland first to Canada; was there five years or more ; I never had a wife; I have no lands in Canada ; I was, during the war, arrested in West Yirginia as a spy, and imprisoned at Camp Chase, near Cincinnati; after 1 was discharged I went to Washington City, and put my case in the hands of Lord Lyons, the British minister, who promised to attend to it; from Washington I went to Parkersburg, Yirginia ; staid there six weeks, and ever since 1 have been peddling in the different states of the Union; I had some money loaned in Iowa; in 1874 I had not quite $9,000; in 1875 I had about $10,000; in 1876 about $11,000; I now have about $16,000, all in notes and mortgages, on land and real estate in Lemon township -; I spent about two-thirds of my time in the United States; I never paid any taxes in Canada, or in any other place; when I went to New London, Canada West, I stopped at the cheapest boarding house I could find ; I own no property of any kind in New London, Canada West; I have no home anywhere, it was every plaee, it was where 1stopped; aftei' the war. was over I intended to collect my money in the United States and buy property in New London, Canada West, and make my home there, but there was so much discount on paper money that I could not do it, and now when paper money is about equal to gold I cannot collect my money.”
    Patrick Norton, being duly sworn, testified as follows: “ I live at Middletown; I have known Patrick Grant fourteen or fifteen years; he has always been a peddler; I never knew him to have a home at Middletown or Lemon township; he never rented or occupied a room there; he came and went with a pack on his back; when at Middletown he boarded usually at McOue’s house.”
    Peter Newcome, being sworn as a witness, testified as follows : “ I have known Patrick Grant last seventeen or eighteen years ; he has always been a peddler; I never knew him to have a house or place of business in Middletown or Lemon township.”
    Thomas Johnson being sworn as a witness, testified as follows : “ I live at Middletown; have known Patrick Grant six or seven years past; he is a peddler: I never knew him to have a home in Middletown or Lemon township.”
    The foregoing was all the evidence in the case bearing on the question of residence.
    
      Thomas Moore and Thomas Millihein, for plaintiff in error.
    
      James E. Campbell, 8. B. Card and C. W. Isaminger, for defendant in error.
   Johnson, C. J.

By the well-settled principles of the common law, Grant was a non-resident of Ohio. He was a native of Ireland, came to Canada at the age of twenty, resided there five years, never was married, was a peddler by occupation, had no homo anywhere, and no property, except his peddler’s pack of goods which he carried with him on his back, wherever he went pursuing his calling, and the notes and mortgages in controversy, which were also carried on his person. During twenty or more years he traveled over fourteen states, visiting Middletown, Lemon township, about once each year. During the war of the Rebellion he was arrested as a spy in West Virginia, and imprisoned in Camp Chase, and thei-e claimed the rights of a British subject. He never claimed nor exercised any of the rights of a resident or citizen of Ohio, nor had he any fixed place of abode. His visits to Middletown were always of a temporary character, to pursue his vocation as a peddler and look after his investments. He never evinced a purpose to become a citizen of the United States, nor to adopt a home in Ohio. Neither by word or act did he look to a change'of his domicile of origin, nor of-his allegiance as a subject of Great Britain. He was what may be called a wanderer.

Upon this state of facts, authorities need not be cited to show that plaintiff in error was not a resident of Ohio, within the meaning of that term as generally used in our statutes, or as defined at common law. It remains to be determined whether his notes and the mortgages to secure the same on real estate in Ohio, are subject to taxation in the township where the money was loaned, they never having been held in this state by a resident owner or by any' resident, agent, trustee, or guardian, for the owner.

The tax law of 1859 (2 S. & C. 1438) with its amendments, was in force until the revision, and governs the case. Section one provides that “ all property, whether real and personal, in this state, and all moneys, credits, investments in bonds, stocks, joint companies or otherwise of persons residing therein . . . shall be subject to taxation.” By section two, “ investments in bonds ” and “ investments in stocks ” are taxable here, if they are held by persons residing in this state, whether for themselves, or as guardians, trustees or agents, without regard to the sifrus of the state, county, municipal authority or body, whether within or without'the state, issuing them.

These provisions came under review in Worthington v. Sebastian, 25 Ohio St. 1, where it was held, that as to this class of property, the situs of the creditor and not of the debtor, is to determine where credits, investment in bonds, etc., are to be taxed, and that the tax is to be imposed by the law of the creditor’s place of residence, and not by that of the debtor.

This was the same view as was taken by the supreme court of the United States in Railroad Co. v. Pennsylvania, 15 Wallace, 300, where the state undertook to tax debts owing by a corporation resident of the state, without regard to the residence of the creditor. It was there further held, that the power of the state to tax, is limited to persons, property and business within its jurisdiction, and therefore, non-resident creditors were not subject to taxation on bonds held by them though secured by mortgage or real estate within the state.

The point was again decided by this court in Bradley v. Bauer, 36 Ohio St. 28. It was there held, that the residence of the owner of shares of stock in a foreign corporation determined the right of this state to tax such shares, and if he resided in Ohio, they were taxable here, though the capital was taxed in this state where the corporation was located. It is there said the same principle governs a chose in action, and that “ for the purpose of taxation its situs is that of the domicile of the owner, although the debt is secured by mortgage upon realty in another state.”

The discussions and decisions on this point are so recent and elaborate that it is needless to do more than to refer to a few of them. Tappen v. Merchant's National Bank, 19 Wall. 499; County of Northampton v. Whetwell, 49 Pa. St. 526 ; State v. Braum, 3 Zab. 484; City of Newark v. Assessor, 30 N. J. Law, 13; Kirkland v. Hotchkiss, 42 Conn. 426. The last case came before the supreme court of the United States, and will be found reported in 100 U. S. 491, where it was again held, that for the purposes of taxation a debt has its situs at the residence of the creditor, and the doctrine in 15 Wallace, supra, is repeated.

Our statute clearly adopts that rule. Whenever the person holding such choses in action resides in Ohio, he must list for taxation such credits, whether he holds them as owner, guardian, trustee, or agent. If they are held within the state in either capacity, they are within the jurisdiction of the state for purposes of taxation. If they are not So held, but are owned and held by a non-resident, they are not subject to taxation.

What constitutes a person a resident of Ohio, for tire purpose of voting, of admission to the public schools and benevolent institutions of the state, for the administration of estates and in other cases, has been a frequent matter for consideration in the courts. There is no substantial difference between the words residence and doznicile in regaz’d to these matters, though they are not always synonymous. For business purposes and perhaps for purposes of taxation, a man may have more than one residence, but he can have but one domicile.

Thus in State v. Ross, 3 Zab. 517, the domicile of one Potter was in Georgia, where he lived most of the year and exercised the rights of a citizen, but resided during part of the year in New Jersey, in his own house. It was held that his real estate and tangible property in New Jersey were taxable there, but bonds, stocks, etc., owned by him have the situs of his domicile in Georgia, and could not be taxed in New Jersey.

That case is instructive both as to the power of the state, and the policy of taxing persons on things in action, at any other place than the domicile of the owner. The policy of this state, as declared in the statutes, is clearly expressed, and is founded in wisdom. If we concede the power of the state to tax things in action held by persons not residing within its jurisdiction, which is denied by the supreme court of the United States, yet no attempt has been made to exercise such power. The policy of the state has always been to encourage, rather than repel such investments of non-resident owners, and hence the statute provides, that such credits are taxable at the residence of the owner, if he is a resident, or where they are held within the state by a guardian, trustee, or agent of the owner, if they hold them within the jurisdiction of the state, but if the owner does not reside within the state, and such credits are not held within the state by an agent, guardian, or trustee of such owner, the residence of the owner fixes the situs of the credits. The act of 1861, taxing “ transient traders (S. & S. 760), which is part of the Revised StatT utes, provides that if any such person shall locate in any place, in this state, his stoclc in trade is liable to taxation, but there is no requirement that he shall be taxed on his credits or other investments. If such trader is not a resident of Ohio, he comes under the rule above stated, but if residing in the state, then such credits follow the residence of the owner.

Judgments of the district court and of the common fleas reversed and the cause remanded.  