Opinion of the Court.

did not. His actual residence is still at Milwaukee.

He is still carrying on his business there, and may continue it for such time as he pleases. Change of mind may lead to change of residence, but cannot with any propriety be deemed such of itself."

In Haggart v. Morgan, 1 Selden, (5 N. Y.) 422, 428, which was the case of an attachment against the defendant as a non-resident debtor, it was held that although the defendant was domiciled in New York, he was, by reason of a continuous, though temporary, absence in New Orleans, for about three years, to be deemed a non-resident within the meaning of the statute regulating attachments.

In Weitkamp v. Loehr, 53 N. Y. Superior Ct. 79, 82, the court said: "Residence, in attachment laws, generally implies an established abode, fixed permanently for a time, for business or other purposes, although there may be an intent existing all the while to return to the true domicil."

These cases show that, within the meaning of the statutes regulating attachments against the property of debtors, as well as those régulating arrests on civil process for debts, it was the actual residence of the defendant, and not his domicil, that determined the rights of the parties.

A like construction appears to have been given, or assumed, by the courts of New York in regard to similar words in that clause of its statute of limitations, which provides that if, after the cause of action shall have accrued, the defendant shall "depart from and reside out of the State, the time of his absence" shall not be included in the period of limitation. The Supreme Court of the State, discussing that provision, said: "The expressions and reside out of the State' and 'the time of his absence' have the same meaning; they are correlative expressions. So that while the defendant in this case resided out of, he was absent from, the State, and accordingly, until he again became a resident of the State, the suspension of the operation of the statute continued." Burroughs v. Bloomer, 5 Denio, 532, 535. It was held in that case, as well as in two later and well considered opinions, the one of the Superior Court of the city of New York, delivered by Mr.

Opinion of the Court.

Justice Duer, and the other of the Court of Appeals, delivered by Judge Selden, that where a defendant, after the cause of action accrued against him, departed from and resided out of the State several times, returning to the State in the intervening periods, all the times of absence or non-residence were to be added together and deducted from the term of limitation. Ford v. Babcock, 2 Sandf. (N. Y.) 518, 527, 531; Cole v. Jessup, 10 N. Y. 96, 104, 107. In each of those three cases it was not alleged or contended, and could not be inferred from any language in the pleadings, or in the opinion, that the defendant changed his domicil upon each departure and return. the same effect is Satterthwaite v. Abercrombie, 23 Blatchford, 308. And, in a very recent case, the Court of Appeals said: "The law gives a creditor six years' continued presence of his debtor within the State after the cause of action has accrued." Engel v. Fischer, 102 N. Y. 400, 404.

To

To give a different meaning to the word "residence," or "resident," or "reside" in that clause of the New York statute of limitations which relates to plaintiffs, from that which the courts of the State have given it in that clause of the same statute which relates to defendants, as well as in various statutes of the State on other subjects, would produce much confusion.

Assuming, without deciding, that the testimony introduced for the plaintiff in the present case would warrant the impression that he had obtained a domicil in the State of New York by virtue of his wife and family, with his consent, having made their home in that State, there is nothing in the evidence which had the slightest tendency to show that his own actual residence was in the State of New York for many years prior to his going there from St. Louis in December, 1883.

To illustrate by referring to other statutes, let us suppose that the plaintiff, while engaged in business in St. Louis, had brought this action in the Supreme Court of New York, immediately after his family took up their residence in Brooklyn. Could he not have been compelled to give security for costs, under section 3268, of the Code of Civil Procedure, which declares that "the defendant, in an action brought in

Opinion of the Court.

a court of record, may require security for costs to be given where the plaintiff was, when the action was commenced, a person residing without the State." Or if the defendant in this action had, within the same period, brought, in one of the courts of New York, á suit against the present plaintiff, upon a cause of action for an "injury to personal property, in consequence of negligence," it could not be doubted, in view of the decisions heretofore cited, that an attachment could have been sued out, and sustained, under sections 635 and 636 of the code, which provide that a warrant of attachment against the property of one or more defendants in such an action may be granted upon the application of the plaintiff, where it appears by affidavit "that the defendant is not a resident of the State." Could Penfield, in the last case supposed, have been deemed a nonresident of New York when sued for "an injury to personal property in consequence of negligence," and under the same facts be regarded as a resident of New York if he sued the same party "for a personal injury resulting from negligence?" Could he be deemed a resident of the State for the purpose of bringing this action, immediately after his family reached Brooklyn, and a non-resident if the railroad company had, at the same time, sued him in New York, and taken out an attachment against his property? The answer to these questions suggests that, in view of the course of decisions in New York, the plaintiff, by retaining his residence for purposes of business in St. Louis, did not become a resident of New York, within the meaning of section 390, until he changed his actual residence to that -State. If he had, before the expiration of the period limited by the law of Tennessee, quitted his residence in Missouri and. joined his family in New York for the purpose of making the latter State his residence in fact, he would have been entitled to bring his action within the period fixed by the laws of New York for the commencement of actions like this by one who is a resident of that State when the cause of action accrues.

As under the evidence the jury could not, by any reasonable inference from the proof, have found that the plaintiff became

Statement of the Case.

himself a resident of New York, within a year after the cause of action accrued, the instruction to find for the defendant was right.

Judgment affirmed.

CLOUGH v. CURTIS.

BURKHART v. REED.

APPEALS FROM THE SUPREME COURT OF THE TERRITORY OF IDAHO.

Nos. 1133, 1134. Argued January 27, 28, 1890.- Decided March 17, 1890.

The jurisdiction of the several courts of the Territory of Idaho is a rightful subject of legislation by the territorial legislature.

An act of the territorial legislature conferring upon the Supreme Court of the Territory original jurisdiction to issue writs of mandate, review, prohibition, habeas corpus and all writs necessary to its appellate jurisdiction is not inconsistent with the Constitution of the United States, or with any act of Congress.

Section 1910 of the Revised Statutes does not forbid a territorial legislature from conferring original jurisdiction upon the Supreme Court of the Territory in such cases.

This court has jurisdiction over judgments of a territorial court: (1) denying an application for a writ of mandamus to compel the secretary of the Territory to record certain proceedings as part of the proceedings of a session of the legislature of the Territory; and (2) denying an application for a like writ to compel the chief clerk of the House of Representatives of the Territory to bring his minutes and journals into the court in order that they may be there corrected in the presence of the court; and it is held that there was no error in denying applications for such writs of mandamus, when they were not asked for by one claiming to have a beneficial interest in sustaining or defeating the measures which it was sought to have incorporated into the official records. The courts of the United States cannot be required, in a case involving no private interest, to determine whether particular bodies, assuming to exercise legislative functions, constitute a lawful legislative assembly.

THE case, as stated by the court, was as follows:

These cases depend upon the same principles of law, and will be considered together.

It appears from the record of the first one (No. 1133) that upon the petition of the appellant to the Supreme Court of

Statement of the Case.

the Territory of Idaho, an alternative writ of mandamus was issued, stating substantially the following facts: The appellant was and is the president of the Council of the 15th session of the legislature of Idaho, and the appellee is the secretary of that Territory. On the 60th day of that session, February 7, 1889, the Council continued in session until midnight, and thereafter until about one o'clock of the succeeding morning. About the latter hour in the morning of the 8th day of February, 1889, a communication was received from the chief clerk of the House of Representatives, announcing that that body had elected one George P. Wheeler as speaker pro tem. The petitioner declined to receive that message as a message from the House, for the reason that the latter body had no authority to elect a speaker after the expiration of the sixty days prescribed for the session by the act of Congress; and the petitioner, as president of the Council, announced to that body and declared "that, because the hour of 12 o'clock and after had arrived, and the time had elapsed in which the said legislature was permitted to transact business, therefore the said Council was adjourned without day." He then inquired of the chief clerk if the adjournment was recorded in the minutes of the proceedings of the session, and received from him the reply that it was. The Council then dispersed, and the petitioner and some of the members left the room, after which other members pretended to reorganize the Council, and to elect one S. F. Taylor president pro tem. thereof, and to elect other officers of the Council, and, also, assumed to transact legislative business, passing enactments which the persons, so pretending to be a legislature, claimed were acts of the legislature of the 15th session of the Territory. Seventeen acts were so passed after the time had expired for holding the session of the legislature.

The writ also stated that in making up a record of the sixtieth day of the legislative session the clerk did not thereafter. show him the same; and petitioner never saw, until after the clerk bad filed with E. J. Curtis, the secretary of the Territory, certain papers which he claimed were the proceedings of the sixtieth day of the session of the Council, but which, in